Exhibit 10.3
EXECUTION COPY
EIGHTEEN-MONTH
CREDIT AGREEMENT
dated as of December 3, 2004
by and among
XXX COMMUNICATIONS, INC.
and
The Lenders Party Hereto
and
JPMORGAN CHASE BANK, N.A.
as Administrative Agent For The Lenders
--------------------
CITICORP NORTH AMERICA, INC. and XXXXXX COMMERCIAL PAPER INC.
Syndication Agents
--------------------
CITIGROUP XXXXXX BROTHERS INC. X.X. XXXXXX SECURITIES INC.
GLOBAL MARKETS INC.
Joint Lead Arrangers and Joint Bookrunners
--------------------
XXX COMMUNICATIONS, INC.
Table of Contents
ARTICLE I. DEFINITIONS........................................................................................... 1
Section 1.01 Defined Terms...................................................................... 1
Section 1.02 Terms Generally.................................................................... 13
Section 1.03 Accounting Terms; GAAP............................................................. 13
ARTICLE II. THE LOANS........................................................................................... 14
Section 2.01 Loans.............................................................................. 14
Section 2.02 Delivery of Proceeds; Recordation of Loans; Interest............................... 15
Section 2.03 Setoff, Counterclaims and Taxes.................................................... 21
Section 2.04 Withholding Tax Exemption.......................................................... 21
Section 2.05 Interest Election.................................................................. 22
Section 2.06 Obligations Several, Not Joint..................................................... 23
Section 2.07 Replacement of Lenders............................................................. 23
Section 2.08 Evidence of Debt................................................................... 24
ARTICLE III. OPTIONAL AND REQUIRED PREPAYMENTS; INTEREST PAYMENT DATE AND COMMITMENT REDUCTION DATE PAYMENTS;
OTHER PAYMENTS ............................................................................. 24
Section 3.01 Optional Prepayments............................................................... 24
Section 3.02 Required Prepayments............................................................... 24
Section 3.03 Place, etc. of Payments and Prepayments............................................ 25
ARTICLE IV. REDUCTION OF COMMITMENTS; FEES....................................................................... 25
Section 4.01 Optional Reduction or Termination of Commitments................................... 25
Section 4.02 Mandatory Reduction and Termination of Commitments................................. 25
Section 4.03 Commitment Fees.................................................................... 25
Section 4.04 Administrative Agent's Fee......................................................... 26
ARTICLE V. APPLICATION OF PROCEEDS............................................................................... 26
ARTICLE VI. REPRESENTATIONS AND WARRANTIES....................................................................... 26
Section 6.01 Organization; Qualification; Subsidiaries.......................................... 26
Section 6.02 Financial Statements............................................................... 26
Section 6.03 Actions Pending.................................................................... 26
Section 6.04 Default............................................................................ 27
Section 6.05 Title to Assets.................................................................... 27
Section 6.06 Payment of Taxes................................................................... 27
Section 6.07 Conflicting or Adverse Agreements or Restrictions.................................. 27
Section 6.08 Purpose of Loans................................................................... 27
Section 6.09 Authority; Validity; Enforceability................................................ 27
Section 6.10 Consents or Approvals.............................................................. 27
Section 6.11 Compliance with Law................................................................ 28
Section 6.12 ERISA.............................................................................. 28
Section 6.13 Investment Company Act............................................................. 28
Section 6.14 Disclosure......................................................................... 28
Section 6.15 Material Franchise Agreements...................................................... 28
Section 6.16 Quality of CATV Systems............................................................ 29
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ARTICLE VII. CONDITIONS.......................................................................................... 29
Section 7.01 Conditions Precedent to the Initial Extension of Credit............................ 29
Section 7.02 Conditions Precedent to Each Extension of Credit................................... 30
ARTICLE VIII. AFFIRMATIVE COVENANTS.............................................................................. 30
Section 8.01 Certain Financial Covenants........................................................ 30
Section 8.02 Financial Statements and Information............................................... 31
Section 8.03 Existence; Laws; Obligations....................................................... 32
Section 8.04 Notice of Litigation and Other Matters............................................. 32
Section 8.05 Books and Records.................................................................. 33
Section 8.06 Inspection of Property and Records................................................. 33
Section 8.07 Maintenance of Property; Insurance................................................. 33
Section 8.08 ERISA.............................................................................. 33
Section 8.09 Maintenance of Business Lines...................................................... 34
Section 8.10 Compliance with Material Franchise Agreements and FCC Licenses..................... 34
ARTICLE IX. NEGATIVE COVENANTS................................................................................... 34
Section 9.01 Liens.............................................................................. 34
Section 9.02 Merger; Consolidation; Disposition of Assets....................................... 35
Section 9.03 Restricted Payments................................................................ 35
Section 9.04 Limitation on Margin Stock......................................................... 35
Section 9.05 Loans and Advances to and Investments in Unrestricted Subsidiaries................. 35
Section 9.06 Subsidiary Debt.................................................................... 36
Section 9.07 Transactions with Affiliates....................................................... 36
ARTICLE X. EVENTS OF DEFAULT..................................................................................... 36
Section 10.01 Failure to Pay Principal or Interest............................................... 37
Section 10.02 Failure to Pay Other Sums.......................................................... 37
Section 10.03 Failure to Pay or Acceleration of Other Debt....................................... 37
Section 10.04 Misrepresentation or Breach of Warranty............................................ 37
Section 10.05 Violation of Certain Covenants..................................................... 38
Section 10.06 Violation of Other Covenants, etc.................................................. 38
Section 10.07 Undischarged Judgment.............................................................. 38
Section 10.08 Change of Control.................................................................. 38
Section 10.09 Assignment for Benefit of Creditors or Nonpayment of Debts......................... 38
Section 10.10 Voluntary Bankruptcy............................................................... 38
Section 10.11 Involuntary Bankruptcy............................................................. 38
Section 10.12 Dissolution........................................................................ 38
ARTICLE XI. MODIFICATIONS, AMENDMENTS OR WAIVERS................................................................. 38
ARTICLE XII. THE ADMINISTRATIVE AGENT............................................................................ 39
Section 12.01 Appointment of Administrative Agent................................................ 39
Section 12.02 Indemnification of Administrative Agent............................................ 39
Section 12.03 Limitation of Liability............................................................ 40
Section 12.04 Independent Credit Decision........................................................ 40
Section 12.05 Rights of JPMCB.................................................................... 40
Section 12.06 Successor to the Administrative Agent.............................................. 41
Section 12.07 Other Agents and Sub-Agents........................................................ 41
ARTICLE XIII. MISCELLANEOUS...................................................................................... 41
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Section 13.01 Payment of Expenses................................................................ 41
Section 13.02 Notices............................................................................ 42
Section 13.03 Setoff............................................................................. 42
Section 13.04 Indemnity and Judgments............................................................ 43
Section 13.05 Interest........................................................................... 43
Section 13.06 Governing Law; Submission to Jurisdiction; Venue................................... 44
Section 13.07 Survival of Representations and Warranties; Binding Effect; Assignment............. 44
Section 13.08 Counterparts....................................................................... 47
Section 13.09 Severability....................................................................... 48
Section 13.10 Descriptive Headings............................................................... 48
Section 13.11 Representation of the Lenders; Notification by the Lenders......................... 48
Section 13.12 Final Agreement of the Parties..................................................... 48
Section 13.13 Waiver of Jury Trial............................................................... 48
Section 13.14 Confidentiality.................................................................... 48
Section 13.15 Designation of Obligations as Designated Senior Indebtedness....................... 49
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The exhibits listed below have been omitted and will be provided to the
Securities and Exchange Commission upon request.
List of Exhibits
Exhibit 2.01(a) - Commitments
Exhibit 2.02(f)(iv) - Eurocurrency Liabilities (Regulation D)
Exhibit 6.01 - List of Subsidiaries
Exhibit 6.03 - List of Actions Pending
Exhibit 6.15 - Franchise Agreements
Exhibit 7.01(a) - Opinion of the Company's Counsel addressed to the Lenders
Exhibit 7.01(b) - Officer's Certificate
Exhibit 9.01(d) - List of Liens and Security Interests
Exhibit 13.02 - Addresses for Notices
Exhibit 13.07(c) - Assignment and Acceptance
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THIS EIGHTEEN-MONTH CREDIT AGREEMENT, made as of the 3rd day of
December, 2004, is among XXX COMMUNICATIONS, INC. (the "Company"), the LENDERS
party hereto and JPMORGAN CHASE BANK, N.A., as Administrative Agent for the
Lenders (hereinafter in such capacity called the "Administrative Agent"),
CITICORP NORTH AMERICA, INC. and XXXXXX COMMERCIAL PAPER INC., as Syndication
Agents, and CITIGROUP GLOBAL MARKETS INC., XXXXXX BROTHERS INC. and X.X. XXXXXX
SECURITIES INC., as Joint Lead Arrangers and Joint Bookrunners.
The Company has requested the Lenders to extend Commitments (such
term and each other capitalized term used and not otherwise defined herein
having the meaning assigned to it in Article I) under which the Company may
obtain loans in an aggregate principal amount at any time outstanding not
greater than $3,000,000,000. The proceeds of the Borrowings made hereunder will
be used by the Company as provided in Article V.
The Lenders are willing to commit to make the loans referred to in
the preceding paragraph upon the terms and subject to the conditions set forth
herein. Accordingly, the parties hereto agree as follows:
ARTICLE I.
DEFINITIONS
Section 1.01 Defined Terms. As used in this Agreement, the following
words and terms shall have the respective meanings indicated opposite each of
them:
"Acquisition Intercompany Loan" shall mean a loan made to Xxx
Holdings, Inc. by the Company on the day payment is due for the CCI Minority
Shares allocated to and purchased by Xxx Holdings, Inc. pursuant to the Tender
Offer, if (i) the proceeds of such loan are used to fund Acquisition Payments,
(ii) all obligations in respect of such loan are assumed on such day by Merger
Sub, (iii) after giving effect to such use of proceeds and the transfer of
shares of the Company to Merger Sub as provided in the Merger Agreement, Merger
Sub will own a number of shares of the Company sufficient to permit it to cause
the Merger to be completed forthwith as a "short-form" merger and (iv) the
obligations in respect of such loan are discharged in the Merger.
"Acquisition Payments" shall mean payments of (a) the purchase price
for CCI Minority Shares purchased in the Tender Offer, whether paid directly by
the Company in the Tender Offer or paid by a Subsidiary of Xxx Enterprises, Inc.
from proceeds of an Acquisition Intercompany Loan, (b) the merger consideration
for the Merger upon effectiveness of the Merger and any amounts payable to
stockholders who have sought statutory appraisal rights, (c) fees and expenses
incurred or payable by the Company in connection with the Tender Offer or the
Merger or (d) payments to holders of vested stock option rights upon
cancellation of such option rights in accordance with the terms of the Merger
Agreement.
"Additional Credit Agreements" shall mean (a) the Credit Agreement
dated as of December 3, 2004, among Xxx Enterprises, Inc., the lenders party
thereto, JPMorgan Chase Bank, N.A., as administrative agent, Citicorp North
America, Inc. and Xxxxxx Commercial Paper Inc., as syndication agents, and
Citigroup Global Markets Inc., Xxxxxx Brothers Inc. and X.X. Xxxxxx Securities
Inc., as joint lead arrangers and joint bookrunners and (b) the Credit Agreement
dated as of December 3, 2004 among the Company, the lenders party thereto,
JPMorgan Chase Bank, N.A., as administrative agent, Citicorp North America, Inc.
and Xxxxxx Commercial Paper Inc., as syndication agents, and Citigroup Global
Markets Inc., Xxxxxx Brothers Inc. and X.X. Xxxxxx Securities Inc., as joint
lead arrangers and joint bookrunners.
"Affiliate" shall mean, when used with respect to a specified
Person, another Person that directly, or indirectly through one or more
intermediaries, Controls or is Controlled by or is under common Control with the
Person specified.
"Agreement" shall mean this Eighteen-Month Credit Agreement, as the
same may be amended from time to time.
"Alternate Base Rate" shall mean, for any day, a rate per annum
equal to the greater of (a) the Floating Rate in effect on such day; or (b) the
Federal Funds Borrowing Rate in effect for such day plus 1/2 of 1%. For purposes
of this Agreement, any change in the Alternate Base Rate due to a change in the
Floating Rate or the Federal Funds Borrowing Rate shall be effective on the
effective date of such change in the Floating Rate or the Federal Funds
Borrowing Rate.
"Alternate Base Rate Loans" shall mean those Loans which may be made
under this Agreement and which are described in Section 2.02(c)(i) on which the
Company shall pay interest at a rate based on the Alternate Base Rate.
"Alternate Base Rate Margin" for any date shall be zero unless the
Margin Percentage with respect to the Eurodollar Rate for such date exceeds
1.00%; and if the Margin Percentage with respect to the Eurodollar Rate for such
date exceeds 1.00%, the Alternate Base Rate Margin for such date will be the
Margin Percentage with respect to the Eurodollar Rate for such date less 1.00%.
"Arrangers" shall mean Citigroup Global Markets Inc., Xxxxxx
Brothers Inc. and X.X. Xxxxxx Securities Inc.
"Assignment and Acceptance" shall have the meaning specified in
Section 13.07(c).
"Basic Subscribers" shall mean all of the following which are
receiving basic cable television service provided by the CATV Systems: (a) the
number of single family dwellings, plus the number of individual households in
multiple dwelling units, purchasing basic cable television service, (b) the
number of commercial rate customers purchasing basic cable television service
and (c) the number of courtesy and free service customers.
"Borrowing" shall mean a borrowing of Loans made by the Company
pursuant to Section 2.01(a), as converted or continued under Section 2.05.
"Borrowing Date" shall mean a date upon which a Borrowing is to be
made under Article II.
"Borrowing Pro Rata Share" shall mean, with respect to any Lender as
to any Borrowing, a fraction (expressed as a percentage rounded upward, if
necessary, to the nearest whole multiple of 0.000000001%) (A) the numerator of
which shall be the amount of such Lender's Commitment and (B) the denominator of
which shall be the aggregate amount of all Lenders' Commitments.
"Business Day" shall mean a day when the Administrative Agent is
open for business; provided that if the applicable Business Day relates to
Eurodollar Loans, it shall mean a day when the Administrative Agent is open for
business and banks are open for dealings in Dollar deposits in the London
interbank market.
2
"CATV Systems" shall mean the cable television distribution systems
owned and operated, directly or indirectly, by the Company or any of its
Subsidiaries that receive television and video signals by antenna, microwave
transmission or satellite transmission and which amplify such signals and
distribute them via coaxial or fiber optic cable.
"CCI Minority Shares" shall mean shares of the common stock of the
Company not owned by Xxx Enterprises, Inc. and its Subsidiaries, including any
shares of restricted stock or shares issuable upon the exercise of stock
options.
"Closing Date" shall mean December 8, 2004 or any later Business Day
occurring on or before July 19, 2005 designated by the Company and Xxx
Enterprises, Inc. as the date of the first borrowing under any of this
Agreement, the Additional Credit Agreements or the Existing Credit Agreements
(as amended and restated as of the date hereof).
"Code" shall mean the Internal Revenue Code of 1986, as amended.
"Commitment" shall mean, with respect to each Lender, the commitment
of such Lender to make Loans hereunder up to the principal amount set forth as
to such Lender on Exhibit 2.01(a), as such commitment may be reduced from time
to time pursuant to the terms of this Agreement. The initial aggregate amount of
the Commitments is $3,000,000,000.
"Commitment Fees" shall have the meaning specified in Section 4.03.
"Commitment Fee Rate" shall have the meaning specified in the
definition of "Margin Percentage".
"Consolidated Debt" shall mean, without duplication, all Debt of the
Company and its Restricted Subsidiaries on a consolidated basis determined in
accordance with GAAP, and including guaranties of indebtedness for borrowed
money or for the deferred purchase price of Property and obligations under or
with respect to standby letters of credit of the Company and the Restricted
Subsidiaries, but only to the extent such liabilities for guaranties or standby
letters of credit in the aggregate exceed $50,000,000; provided further that for
purposes of this definition, Consolidated Debt shall not include guaranties by
the Company or any Restricted Subsidiary of overdrafts of any Restricted
Subsidiary, which occur in the ordinary course of business and remain
outstanding for a period not to exceed seven Business Days; provided further,
that for purposes of computing the Leverage Ratio, such computation shall
exclude any effect on the Company's or any Restricted Subsidiary's debt
securities or Indexed Securities in respect of the accounting for all derivative
financial instruments in accordance with GAAP, including derivative financial
instruments that may be embedded in the Company's or any Restricted Subsidiary's
debt securities or Indexed Securities and freestanding derivative financial
instruments used by the Company or any Restricted Subsidiary for hedging
purposes, but such computation shall in any event include the original principal
amount and any accreted principal amount of such debt securities and Indexed
Securities. The effect on the computation of the Leverage Ratio that may be
excluded in respect of the accounting for all derivative financial instruments
in accordance with GAAP includes: (i) entries associated with the xxxx-to-market
of all freestanding and embedded derivative financial instruments classified as
a component of the Company's or any Restricted Subsidiary's debt securities or
Indexed Securities in the consolidated balance sheet of the Company and (ii)
entries to record and accrete additional debt discount that may arise from the
bifurcation of derivative financial instruments embedded in the Company's or any
Restricted Subsidiary's debt securities or Indexed Securities.
3
"Consolidated Interest Expense" shall mean, as of the last day of
any fiscal quarter of the Company for the period of four fiscal quarters then
ended, the sum of (i) interest expense, after giving effect to any net payments
made or received by the Company and its Restricted Subsidiaries with respect to
interest rate swaps, caps and floors or other similar agreements, and (ii)
capitalized interest expense, in each case of the Company and its Restricted
Subsidiaries, all on a consolidated basis determined in accordance with GAAP;
provided that for purposes of this definition, interest expense shall exclude
any effect on interest expense in respect of the accounting for all derivative
financial instruments in accordance with GAAP, including derivative financial
instruments that may be embedded in the Company's or any Restricted Subsidiary's
debt securities or Indexed Securities and freestanding derivative financial
instruments that may be used by the Company or any Restricted Subsidiary for
hedging purposes. The effect on interest expense that may be excluded in respect
of the accounting for all derivative financial instruments in accordance with
GAAP includes: (i) entries to record noncash interest expense (or income)
associated with the xxxx-to-market of freestanding and embedded derivative
financial instruments, (ii) noncash interest expense associated with the
accretion of additional debt discount that may arise from the bifurcation of
derivative financial instruments embedded in the Company's or any Restricted
Subsidiary's debt securities or Indexed Securities, and (iii) noncash interest
expense (or income) that may arise if the Company's or any Restricted
Subsidiary's hedging strategies become ineffective, as determined in accordance
with GAAP.
"Consolidated Net Worth" shall mean total assets of the Company and
all Restricted Subsidiaries less all liabilities of the Company and all
Restricted Subsidiaries, as determined in accordance with GAAP.
"Consolidated Operating Cash Flow" shall mean, as of the last day of
any fiscal quarter of the Company for the period of four fiscal quarters then
ended, the sum of (i) operating income of the Company and its Restricted
Subsidiaries (less cash dividends and other cash distributions to the holders of
minority interests in the Company's Restricted Subsidiaries), to the extent
otherwise reflected in operating income before giving effect to depreciation,
amortization, other non-cash charges and equity in earnings (losses) of
unconsolidated investees on a consolidated basis determined in accordance with
GAAP and non-recurring one-time charges and (ii) cash dividends and cash
distributions, other than extraordinary distributions, for such period from
unconsolidated investees of the Company and its Restricted Subsidiaries, on a
consolidated basis determined in accordance with GAAP, minus, without
duplication, (iii) the amount of cash payments in respect of items that were
originally reflected in operating income (whether in such period or any earlier
period) as non-cash charges; provided that the Company's Unit Appreciation Plan
Expense shall not be included in the calculation of Consolidated Operating Cash
Flow.
"Control" shall mean 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. "Controlling" and "Controlled" have meanings correlative thereto.
"Counsel for the Company" shall mean Dow, Xxxxxx & Xxxxxxxxx, PLLC.
"Cox Family" shall include those certain trusts commonly referred to
as the Xxxxxx-Xxx Trust A, the Xxxxxxx Xxx Xxxxxxx Atlanta Trust, the Xxxx Xxx
Xxxxxxxx Atlanta Trust, Xxxxxxx Xxx Xxxxxxx, Xxxxxx Xxxxxxx, Xxxx Xxx Xxxxxxxx,
and the estates, executors and administrators, and lineal descendants of the
above-named individuals, any private foundation or other charitable entity of
which the above-described individuals constitute a majority of the trustees,
directors or managers, and any corporation, partnership, limited liability
company, trust or other entity in which the above-named trusts or
above-described individuals and the estates, executors and administrators, and
lineal descendants of the above-named individuals in the aggregate have a direct
or indirect beneficial interest or voting control of greater than 50%.
4
"Debentures" shall mean the Company's Exchangeable Subordinated
Discount Debentures due 2020 in an aggregate original principal amount at
maturity of $1,643,617,000.
"Debt" shall mean with respect to any Person and without duplication
(i) indebtedness for borrowed money or for the deferred purchase price of
Property in respect of which such Person is liable, contingently or otherwise,
as obligor, guarantor or otherwise, or in respect of which such Person directly
or indirectly assures a creditor against loss, and (ii) the capitalized portions
of obligations under leases which shall have been or should have been, in
accordance with GAAP, recorded as capital leases.
"Default Rate" shall mean a rate per annum (for the actual number of
days elapsed, based on a year of 365 or 366 days, as the case may be) which
shall be equal to the lesser of the Alternate Base Rate plus the Alternate Base
Rate Margin plus 1% or the Highest Lawful Rate.
"Depositary" shall have the meaning specified in Section 13.03.
"Dollars" and "$" shall mean lawful currency of the United States of
America.
"ERISA" shall mean the Employee Retirement Income Security Act of
1974, as amended.
"Eurodollar Event" shall have the meaning specified in Section
2.02(d)(i).
"Eurodollar Loans" shall mean those Loans which may be made under
this Agreement and which are described in Section 2.02(c)(ii) on which the
Company shall pay interest at a rate based on the Eurodollar Rate.
"Eurodollar Rate" for any Interest Period shall mean, for each
Eurodollar Loan comprising part of a Borrowing, an interest rate per annum equal
to the per annum rate appearing on Page 3750 of the Dow Xxxxx Market Service (or
on any successor or substitute page of such Service, or any successor to or
substitute for such Service, providing rate quotations comparable to those
currently provided on such page of such Service, as determined by the
Administrative Agent from time to time for purposes of providing quotations of
interest rates applicable to dollar deposits in the London interbank market) at
approximately 11:00 a.m., London time, two Business Days prior to the
commencement of such Interest Period, as the rate for dollar deposits with a
maturity comparable to such Interest Period. In the event that such rate is not
available at such time for any reason, then the "Eurodollar Rate" with respect
to such Borrowing for such Interest Period shall be the rate at which dollar
deposits of $5,000,000 and for a maturity comparable to such Interest Period are
offered by the principal London office of the Administrative Agent in
immediately available funds in the London interbank market at approximately
11:00 a.m., London time, two Business Days prior to the commencement of such
Interest Period.
"Event of Default" shall mean any of the events specified in Article
X; provided that there has been satisfied any requirement in connection with
such event for the giving of notice, or the lapse of time, or the happening of
any further condition, event or act, and "Default" shall mean any of such
events, whether or not any such requirement has been satisfied.
"Excluded Taxes" shall mean, with respect to the Administrative
Agent, any Lender or any other recipient of any payment to be made by or on
account of any obligation of the Company hereunder:
(a) taxes that are imposed on or measured by its overall net income
by the United States;
5
(b) taxes that are imposed on or measured by its overall net income
or profits (and franchise taxes imposed on or measured by income, earnings or
retained earnings) by (i) the state or foreign jurisdiction in or under the laws
of which it is organized or any political subdivision thereof, (ii) the state or
foreign jurisdiction of its principal office or Lending Office, or (iii) any
state or foreign jurisdiction solely as a result of a current or former
connection between it and such jurisdiction (other than any such connection
arising solely from its having executed, delivered or performed its obligations
or received payment under, or enforced, this Agreement or the Loans) or any
political subdivision thereof;
(c) any branch profits taxes imposed by the United States or any
similar tax imposed by any other jurisdiction in which it is located, or any
political subdivision thereof; and
(d) in the case of a Foreign Lender, any U.S. withholding tax that
is imposed on amounts payable to such Foreign Lender at the time such Foreign
Lender becomes a party hereto (or designates a new Lending Office, but only to
the extent greater than the amount of any Indemnified Taxes to which such
Foreign Lender would be entitled at the time of such designation) or is
attributable to such Foreign Lender's failure or inability (other than as a
result of a Change in Law) to comply with Section 2.04.
"Existing Credit Agreements" shall mean (a) the Five-Year Credit
Agreement dated as of June 4, 2004, among the Company, the lenders party
thereto, JPMorgan Chase Bank, N.A., as administrative agent, Bank of America,
N.A., as co-syndication agent, Wachovia Bank, National Association, as
co-syndication agent, X.X. Xxxxxx Securities Inc., as co-lead arranger and joint
bookrunner, and Banc of America Securities, LLC, as co-lead arranger and joint
bookrunner and (b) the Five-Year Credit Agreement dated as of June 4, 2004,
among Xxx Enterprises, Inc., the lenders party thereto, JPMorgan Chase Bank,
N.A., as administrative agent, Bank of America, N.A., as co-syndication agent,
Wachovia Bank, National Association, as co-syndication agent, X.X. Xxxxxx
Securities Inc., as co-lead arranger and joint bookrunner, and Wachovia Capital
Markets, LLC, as co-lead arranger and joint bookrunner.
"FCC" shall mean the Federal Communications Commission or any
successor governmental agency thereto.
"Federal Funds Borrowing Rate" shall mean, for any day, a
fluctuating interest rate per annum equal to the weighted average (rounded
upwards, if necessary, to the next 1/100 of 1%) of the rates on overnight
Federal funds transactions with members of the Federal Reserve System arranged
by Federal funds brokers, as published on the next succeeding Business Day by
the Federal Reserve Bank of New York, or, if such rate is not so published for
any day that is a Business Day, the average (rounded upwards, if necessary, to
the next 1/100 of 1%) of the quotations for such day received by the
Administrative Agent from three Federal funds brokers of recognized standing
selected by it.
"Federal Funds Rate Loans" shall mean those Loans which may be made
under this Agreement and which are described in Section 2.02(c)(iii) on which
the Company shall pay interest at a rate based on the Federal Funds Borrowing
Rate.
"Financial Institution" shall mean an entity which regularly engages
in one or more of the following activities: making loans, issuing letters of
credit or purchasing loans or loan commitments or interests in loans, loan
commitments or letters of credit.
"Floating Rate" shall mean, as of a particular date, the prime rate
most recently determined by JPMCB. Without notice to the Company or any other
Person, the Floating Rate shall change automatically from time to time as and in
the amount by which said prime rate shall fluctuate, with each such change to be
effective as of the date of each change in such prime rate. The Floating Rate
6
is a reference rate and does not necessarily represent the lowest or best rate
actually charged to any customer. JPMCB may make commercial loans or other loans
at rates of interest at, above or below the Floating Rate.
"Foreign Lender" shall mean any Lender that is not a "United States
person" (as such term is defined in Section 7701(a)(30) of the Code).
"Franchise Agreements" shall mean all material franchise agreements
or other substantially similar agreements to which the Company or any of its
Subsidiaries is a party.
"Funding Date" shall mean each of (a) no more than three dates
(occurring on or prior to the Loan Availability Expiration Date) on which (i)
payment is due for tendered CCI Minority Shares allocated and accepted for
purchase pursuant to the Tender Offer or (ii) the Company elects to repay
Conventional Revolving Loans (as defined under the Additional Credit Agreement
to which the Company is a party) or Conventional Loans (as defined under the
Existing Credit Agreement to which the Company is a party, as amended and
restated as of the date hereof), in each case which were used to fund
Acquisition Payments and (b) the date or the next Business Day (if on or prior
to the Loan Availability Expiration Date) on which the Merger becomes effective.
"GAAP" shall mean generally accepted accounting principles in the
United States of America.
"Highest Lawful Rate" shall mean the maximum nonusurious interest
rate, if any, that at any applicable time may be contracted for, taken,
reserved, charged or received on any Loan or on the other amounts which may be
owing to any Lender pursuant to this Agreement under the laws applicable to such
Lender and this transaction.
"Homes Passed" shall mean the total of (a) the number of single
family residences capable of being serviced without further line construction;
(b) the number of units in multi-family residential buildings capable of being
serviced without further line construction; and (c) the number of then current
commercial service accounts regardless of the number of units serviced or the
equivalent billing units.
"Indemnified Taxes" shall mean Taxes other than Excluded Taxes.
"Indenture" shall mean the Indenture, dated as of June 27, 1995,
between the Company and the Bank of New York, as Trustee, as supplemented by the
First Supplemental Indenture, dated as of August 12, 1999, the Third
Supplemental Indenture, dated as of April 19, 2000, and the Sixth Supplemental
Indenture, dated as of May 5, 2003 (and as the same may be further supplemented
from time to time).
"Indexed Securities" shall mean securities or financial contracts of
the Company issued and outstanding from time to time whose fair value is derived
from an index, such as the trading price of another referenced security.
"Interest Election Request" shall mean a request by the Company to
convert or continue a Borrowing in accordance with Section 2.05.
"Interest Payment Date" shall mean the last day of each Interest
Period.
7
"Interest Period" shall mean, with respect to each Eurodollar Loan
hereunder, the period commencing on the Borrowing Date of such Loan or the date
such Borrowing is continued or converted from another type of Borrowing and
ending one, two, three or six months thereafter, as the Company may select in
the Notice of Borrowing or Interest Election Request; provided that (i) no
Interest Period shall extend beyond the Maturity Date, (ii) whenever the last
day of any Interest Period would otherwise occur on a day other than a Business
Day, the last day of such Interest Period shall be extended to occur on the next
succeeding Business Day; provided that with respect to Eurodollar Loans, 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 only if such Business Day
does not fall in another month, and in the event the next succeeding Business
Day falls in another month, the Interest Period for such Eurodollar Loan shall
be accelerated so that such Interest Period shall end on the next preceding
Business Day, (iii) any Interest Period that begins on a day for which there is
no numerically corresponding day in the last month of such Interest Period shall
end on the last Business Day of the last month of such Interest Period and (iv)
until the earlier of (A) the completion of syndication as determined by the
Arrangers and (B) the 30th day following the Closing Date, all Eurodollar Loans
shall have an Interest Period of one month. In no event shall there be more than
10 Interest Periods in effect at any one time.
"Investment" shall have the meaning specified in Section 9.05.
"JPMCB" shall mean JPMorgan Chase Bank, N.A., a national banking
association having its principal offices located at 000 Xxxx Xxxxxx, Xxx Xxxx,
Xxx Xxxx 00000.
"Lender Affiliate" shall mean, (a) with respect to any Lender, (i)
an Affiliate of such Lender or (ii) any entity (whether a corporation,
partnership, trust or otherwise) that is primarily engaged in making,
purchasing, holding or otherwise investing in bank loans and similar extensions
of credit in the ordinary course of its business and is Controlled by a Lender
or an Affiliate of such Lender and (b) with respect to any Lender that is a fund
which invests in bank loans and similar extensions of credit, any other fund
that invests in bank loans and similar extensions of credit and is Controlled by
the same investment advisor as such Lender or by an Affiliate of such investment
advisor.
"Lenders" shall mean the Persons listed on Exhibit 2.01(a), each
such Lender's respective successors (which successors shall include any entity
resulting from a merger or consolidation) and any other Person that shall have
become a party hereto pursuant to an Assignment and Acceptance, other than any
such Person that ceases to be a party hereto pursuant to an Assignment and
Acceptance.
"Lending Office" shall mean, with respect to any Lender, its
principal office in the city identified with such Lender, in Section 13.02, or
such other office or branch of such Lender as it shall designate in writing from
time to time to the Company.
"Leverage Ratio" shall mean, at any time, the ratio of (a)
Consolidated Debt (less the aggregate amount of cash and cash equivalents of the
Company and its Restricted Subsidiaries representing the unused proceeds of
securities issued after the date hereof to refinance Debt obligations scheduled
to mature within 90 days) as of the last day of the fiscal quarter most recently
ended for which financial statements shall have been delivered to the Lenders
pursuant to Section 8.02 to (b) Pro Forma Consolidated Operating Cash Flow for
the period ending on such day; provided that for purposes of determining the
Leverage Ratio as of any date occurring on or before December 30, 2005 (but not
as of December 31, 2005 or any time thereafter) Consolidated Debt shall be
reduced by the difference (if a positive number) between (i) the Leverage Ratio
Credit and (ii) the Leverage Ratio Credit Reduction, if any, on such date.
8
"Leverage Ratio Credit" shall mean, for any date occurring on or
before December 30, 2005, $1,000,000,000.
"Leverage Ratio Credit Reduction" shall mean, for any date occurring
on or before December 30, 2005, an amount equal to the aggregate amount of all
net cash proceeds received by the Company at any time after the Closing Date
from (a) the issuance and sale of capital stock of the Company or as an equity
contribution (net of underwriting discounts and commissions and other issuance
costs) or (b) from the sale or disposition of capital stock or other equity
interests of a Subsidiary or the assets of a business of the Company or a
Subsidiary (net of (i) the costs of the sale or disposition, (ii) taxes paid or
payable by the Company or a Subsidiary or an Affiliate in connection with or as
a result of the sale or disposition, (iii) proceeds of the sale applied to the
payment of debt or other obligations of the Company or a Subsidiary required to
be repaid, redeemed or repurchased in connection with or as a result of the sale
or disposition and (iv) any reserve established by the Company for the payment
of any post-closing obligations, such as working capital adjustments and
indemnities, that may become payable by the Company or any Restricted Subsidiary
under the agreements relating to the sale or disposition), except any sale or
disposition made for an aggregate purchase consideration of less than
$50,000,000.
"Lien" shall mean, with respect to any asset, (a) any mortgage, deed
of trust, lien, pledge, hypothecation, encumbrance, charge or security interest
in, on or of such asset and (b) the interest of a vendor or a lessor under any
conditional sales agreement, capital lease or title retention agreement (or any
financing lease having substantially the same economic effect as any of the
foregoing) relating to such asset.
"Loan Availability Expiration Date" shall mean the earliest of (a)
the Business Day after the day on which the Merger becomes effective, (b) the
Business Day on which the Company notifies the Administrative Agent that the
Merger Agreement has terminated, and (c) July 19, 2005.
"Loans" shall have the meaning specified in Section 2.01(a).
"Majority Lenders" shall mean (a) until expiration or termination of
the Commitments, Lenders having more than 50% of the outstanding Loans and
unfunded Commitments and (b) after expiration or termination of the Commitments,
Lenders having more than 50% of the aggregate outstanding Loans.
"Margin Percentage" shall mean at any date that percentage (a) to be
added to the Eurodollar Rate or the Federal Funds Borrowing Rate, as
appropriate, pursuant to Section 2.02(c)(ii) or Section 2.02(c)(iii) for
purposes of determining the per annum rate of interest applicable from time to
time to Federal Funds Rate Loans and Eurodollar Loans and (b) to be used in
computing the Commitment Fee Rate pursuant to Section 4.03, set forth under the
appropriate column below opposite the Category corresponding to the Company's
corporate credit ratings by S&P or Moody's, respectively, on such date:
Margin Percentage
Federal Funds
Eurodollar Borrowing Commitment
Category Ratings Rate Rate Fee Rate
-------- ------- ---------- ------------- ----------
1 > or =A-/A3 0.525% 0.650% 0.100%
2 BBB+/Baa1 0.625% 0.750% 0.125%
9
3 BBB/Baa2 0.750% 0.875% 0.150%
4 BBB-/Baa3 0.875% 1.000% 0.200%
5 BB+/Ba1 1.125% 1.250% 0.250%
6 < or =BB/Ba2 1.375% 1.500% 0.375%
For purposes of the foregoing, (i) if either S&P or Moody's shall
not have in effect a corporate credit rating (other than by reason of the
circumstances referred to in the last sentence of this definition), then the
Margin Percentage shall be based upon the rating of the other rating agency;
(ii) if the two corporate credit ratings established or deemed to have been
established by S&P and Moody's for the Company shall fall within different
Categories from one another and such difference shall be one ratings level, the
Margin Percentage shall be based on the Category corresponding to the higher of
the two ratings; (iii) if the two corporate credit ratings established or deemed
to have been established by S&P and Moody's for the Company shall fall within
different Categories from one another and such difference shall be two ratings
levels or more, the Margin Percentage shall be based on the Category
corresponding to the rating at midpoint or, if there is no midpoint rating, the
rating which is one level lower than the higher rating, and (iv) if the
corporate credit ratings established or deemed to have been established by S&P
or Moody's for the Company shall be changed (other than as a result of a change
in the rating system of S&P or Moody's), such change shall be effective as of
the date on which it is first announced by the applicable rating agency. Each
change in the Margin Percentage shall apply during the period commencing on the
effective date of such change and ending on the date immediately preceding the
effective date of the next such change. If the rating system of S&P or Moody's
shall change, or if any such rating agency shall cease to be in the credit
rating business, the Company and the Lenders shall negotiate in good faith to
amend this definition to reflect such changed rating system or the
unavailability of ratings from such rating agency and, pending the effectiveness
of any such amendment, the Margin Percentage shall be determined by reference to
the rating most recently in effect prior to such change or cessation.
"Margin Stock" shall mean "margin stock" as that term is defined in
Regulation U of the Board of Governors of the Federal Reserve System.
"Material Adverse Effect" shall mean a material adverse effect on
the business, properties or financial condition of the Company and its
Restricted Subsidiaries on a consolidated basis or on the ability of the Company
to perform its obligations under this Agreement.
"Material FCC Licenses" shall have the meaning specified in Section
8.04.
"Material Franchise Agreements" shall mean Franchise Agreements in
connection with CATV Systems constituting 80% or more at any time of aggregate
Basic Subscribers of the Company and its Subsidiaries.
"Maturity Date" shall mean the date that is eighteen months from the
Closing Date.
"Maximum Permissible Rate" shall have the meaning specified in
Section 13.05.
"Merger" shall mean the merger of Merger Sub with and into the
Company, in which the Company is the surviving corporation, on substantially the
terms and conditions set forth in the Merger
10
Agreement, as in effect on the date hereof or hereafter modified, amended or
waived with the consent of the Arrangers, which consent shall not be
unreasonably withheld.
"Merger Agreement" shall mean the Agreement and Plan of Merger,
dated as of October 19, 2004, among the Company, Xxx Enterprises, Inc., Xxx
Holdings, Inc. and Merger Sub.
"Merger Sub" shall mean CEI-M Corporation, a newly formed wholly
owned direct or indirect subsidiary of Xxx Enterprises, Inc.
"Moody's" shall mean Xxxxx'x Investors Service, Inc.
"Notice of Borrowing" shall have the meaning specified in Section
2.01(c).
"Officer's Certificate" shall mean a certificate signed in the name
of the Company by either its Chief Executive Officer, its President, one of its
Vice Presidents or its Treasurer.
"Other Taxes" shall mean all present or future stamp, registration
or documentary taxes or any other excise or property taxes, charges or similar
levies arising from any payment made hereunder or from the execution, delivery,
registration or enforcement of, or otherwise with respect to, this Agreement or
the Loans.
"Pay Units" shall mean the aggregate number of premium services
received by Basic Subscribers on a primary outlet.
"PBGC" shall have the meaning specified in Section 6.12.
"Permitted Lien" shall mean any Lien permitted pursuant to Section
9.01.
"Person" shall mean an individual, partnership, joint venture,
corporation, limited liability company, bank, trust, unincorporated
organization, government or any department or agency thereof or other entity.
"Plan" shall mean any employee pension benefit plan within the
meaning of Title IV of ERISA which is either (i) maintained for employees of the
Company, of any Subsidiary, or of any member of a "controlled group of
corporations" or "combined group of trades or businesses under common control"
as such terms are defined, respectively, in Sections 1563 and 414 of the
Internal Revenue Code of 1986, as amended, and the regulations thereunder, of
which the Company or any Subsidiary is a party, or (ii) maintained pursuant to a
collective bargaining agreement or any other arrangement under which more than
one employer makes contributions and to which the Company, any Subsidiary or any
member of a "controlled group of corporations" or "combined group of trades or
businesses under common control" defined as aforesaid, is at the time in
question making or accruing an obligation to make contributions or has within
the preceding five plan years made contributions.
"Prepayment Pro Rata Share" shall mean, with respect to any Lender
as to any prepayment of Loans, a fraction (expressed as a percentage rounded
upward, if necessary, to the nearest whole multiple of 0.000000001%) (A) the
numerator of which shall be the principal amount of such Loans outstanding to
such Lender at such time and (B) the denominator of which shall be the aggregate
principal amount of such Loans outstanding to all Lenders at such time.
"Principal Office" shall mean the office of the Administrative Agent
located at 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000.
11
"Pro Forma Consolidated Operating Cash Flow" shall mean Consolidated
Operating Cash Flow, excluding therefrom all Consolidated Operating Cash Flow
attributable to any Restricted Subsidiary or business sold or otherwise disposed
of other than in the ordinary course of business during any four fiscal quarter
period in question as if such Restricted Subsidiary or business were not owned
at any time during such four fiscal quarter period and including therein all
Consolidated Operating Cash Flow attributable to any Restricted Subsidiary or
business acquired other than in the ordinary course of business during any four
fiscal quarter period in question as if such Restricted Subsidiary or business
were at all times owned during such four fiscal quarter period.
"Property" shall mean all types of real and personal property,
whether tangible, intangible or mixed.
"Prospectus Supplement" shall mean, collectively, the prospectus
supplements relating to the Debentures.
"Quarterly Date" shall mean the last day of each March, June,
September and December, beginning with December 31, 2004, or if any such date is
not a Business Day, the respective Quarterly Date shall be the next succeeding
Business Day.
"Register" shall have the meaning specified in Section 13.07(f).
"Regulation D" shall mean Regulation D of the Board of Governors of
the Federal Reserve System.
"Related Parties" shall mean, with respect to any specified Person,
such Person's Affiliates and the respective directors, officers, employees,
agents and advisors of such Person and such Person's Affiliates.
"Required Prepayment Date" shall have the meaning specified in
Section 2.02(d)(i).
"Restricted Payment" shall have the meaning specified in Section
9.03.
"Restricted Subsidiary" shall mean each Subsidiary other than those
identified as Unrestricted Subsidiaries in Exhibit 6.01; provided that a
Restricted Subsidiary may be designated by the Company as an Unrestricted
Subsidiary or an Unrestricted Subsidiary may be redesignated by the Company as a
Restricted Subsidiary if immediately after giving effect to such designation no
Default or Event of Default shall have occurred and be continuing and the
Company shall promptly deliver to the Administrative Agent notice of any such
designation or redesignation; provided further that after the initial
designation of an Unrestricted Subsidiary by the Company at any time, only three
further redesignations of such Subsidiary shall be permitted.
"S&P" shall mean Standard and Poor's Ratings Group.
"SPC" shall have the meaning specified in Section 13.07(d).
"Specified Proceeds" shall mean cash proceeds received by the
Company or any of its Restricted Subsidiaries at any time after the date of this
Agreement from (a) any issuance and sale of its debt securities in any public
offering or private placement, net of underwriting discounts and commissions and
issuance costs, or (b) the incurrence of Debt by the Company or any of its
Restricted Subsidiaries in an aggregate amount exceeding $200,000,000 under any
loan or credit facility other than this Agreement and the other credit
agreements of the Company referred to in Section 7.01(d), net of up-
12
front fees and closing costs; provided that "Specified Proceeds" shall not
include proceeds received by the Company or any of its Restricted Subsidiaries
from the issuance of commercial paper.
"Subsidiary" shall mean any Person of which more than 50% of the
outstanding shares, having voting power under ordinary circumstances to elect a
majority of the Board of Directors or other governing body of such Person, shall
at the time be owned, directly or indirectly, by the Company, by any one or more
Subsidiaries, or by the Company and one or more Subsidiaries.
"Syndication Agents" shall mean Citicorp North America, Inc. and
Xxxxxx Commercial Paper Inc.
"Taxes" shall mean all present or future taxes, levies, imposts,
duties, deductions, withholdings, assessments, fees or other charges imposed by
any governmental authority, including any interest, additions to tax or
penalties applicable thereto.
"Tender Offer" shall mean a tender offer for the purchase of CCI
Minority Shares on substantially the same terms and conditions set forth in the
Offer to Purchase dated November 3, 2004, as in effect on the date hereof or
hereafter modified, amended or waived with the consent of the Arrangers, which
consent shall not be unreasonably withheld.
"Unit Appreciation Plan Expense" shall mean accrued and unpaid unit
appreciation plan expense for any given fiscal quarter.
"Unrestricted Subsidiary" shall mean any Subsidiary so designated in
accordance with the terms of this Agreement and shall include any subsidiary of
any Subsidiary so designated.
"Wholly Owned", when used with respect to a Subsidiary, shall mean
the beneficial ownership by the Company of 100% of the equity securities of such
Subsidiary.
Section 1.02 Terms Generally. The definitions of terms herein shall
apply equally to the singular and plural forms of the terms defined. Whenever
the context may require, any pronoun shall include the corresponding masculine,
feminine and neuter forms. The words "include", "includes" and "including" shall
be deemed to be followed by the phrase "without limitation". The word "will"
shall be construed to have the same meaning and effect as the word "shall".
Unless the context requires otherwise, (a) any definition of or reference to any
agreement, instrument or other document herein shall be construed as referring
to such agreement, instrument or other document as from time to time amended,
supplemented or otherwise modified (subject to any restrictions on such
amendments, supplements or modifications set forth herein), (b) any reference
herein to any Person shall be construed to include such Person's successors and
assigns, (c) the words "herein", "hereof" and "hereunder", and words of similar
import, shall be construed to refer to this Agreement in its entirety and not to
any particular provision hereof, (d) all references herein to Articles, Sections
and Exhibits shall be construed to refer to Articles and Sections of, and
Exhibits to, this Agreement and (e) the words "asset" and "property" shall be
construed to have the same meaning and effect and to refer to any and all
tangible and intangible assets and properties, including real and personal
property, cash, securities, accounts and contract rights.
Section 1.03 Accounting Terms; GAAP. Except as otherwise expressly
provided herein, all terms of an accounting nature shall be construed in
accordance with GAAP, as in effect from time to time; provided that, if the
Company notifies the Administrative Agent that the Company requests an amendment
to any provision hereof to eliminate the effect of any change occurring after
the date hereof in GAAP or in the application thereof on the operation of such
provision (or if the Administrative Agent notifies the Company that the Majority
Lenders request an amendment to any provision hereof for
13
such purpose), regardless of whether any such notice is given before or after
such change in GAAP or in the application thereof, then such provision shall be
interpreted on the basis of GAAP as in effect and applied immediately before
such change shall have become effective until such notice shall have been
withdrawn or such provision amended in accordance herewith.
ARTICLE II.
THE LOANS
Section 2.01 Loans.
(a) Commitments. Subject to and upon the terms and conditions set
forth in this Agreement, each Lender severally agrees to make a loan
(collectively, the "Loans") to the Company on each Funding Date in an amount
equal to such Lender's Borrowing Pro Rata Share of an amount of Loans requested
by the Company for funding on such Funding Date, which amount shall not, in the
aggregate for all Loans at any time requested to be funded, exceed the aggregate
Loan Commitments; provided that:
(i) All Commitments for Loans will terminate at the close of
business on the Loan Availability Expiration Date;
(ii) The aggregate amount of Loans requested by the Company
for funding on any day prior to the date on which the Merger becomes
effective shall not exceed the aggregate amount of (A) all Acquisition
Payments that are to be paid on such day or the next Business Day from the
proceeds of such Loans and (B) all revolving credit loans previously
funded under the Additional Credit Agreement and Existing Credit Agreement
to which the Company is a party and used to pay Acquisition Payments that
are to be repaid on such day or the next Business Day from the proceeds of
such Loans;
(iii) On the date the Merger becomes effective or the next
Business Day, the Company may request funding of Loans in an amount up to
the full amount which then remains unfunded and available under the
Commitments (whether or not any Loans were previously funded in connection
with the purchase of CCI Minority Shares pursuant to the Tender Offer);
and
(iv) Loans that are repaid or prepaid may not be reborrowed.
(b) Repayment of Loans. The Company hereby unconditionally
promises to pay to the Administrative Agent, on the Maturity Date, all
outstanding Loans for account of the Lenders holding Loans.
(c) Borrowing Procedures. Each Borrowing shall be made on at least
(A) in the case of a Borrowing consisting of Alternate Base Rate Loans or
Federal Funds Rate Loans, prior oral or written notice from the Company to the
Administrative Agent by 10:00 a.m. (New York, New York time) on the same day as
the requested borrowing (and the Administrative Agent shall prior to 11:00 a.m.
(New York, New York time) provide oral or written notice of the requested
borrowing to the Lenders, and (B) in the case of a Borrowing consisting of
Eurodollar Loans, three Business Days' prior written or oral notice from the
Company to the Administrative Agent by 10:00 a.m. (New York, New York time) (and
the Administrative Agent shall, in the case of (B) above, upon receipt of such
notice provide to each Lender prior oral or written notice by 11:30 a.m. (New
York, New York time) on the date such notice is received by the Administrative
Agent) (each such notice, a "Notice of Borrowing"). Each Notice of Borrowing
shall be irrevocable and shall specify (A) the total principal amount of the
proposed
14
Borrowing, (B) whether the Borrowing will be comprised of Alternate Base Rate
Loans, Federal Funds Rate Loans or Eurodollar Loans, (C) the applicable Interest
Period (if any) for such Loans, (D) the Borrowing Date, (E) the bank account
into which the funds with respect to such Borrowing shall be deposited
(including, if requested by the Administrative Agent, a flow of funds memorandum
reasonably satisfactory to the Administrative Agent demonstrating disbursement
of the proceeds of such Borrowing for the purposes specified in Article V) and
(F) a statement as to the amount of proceeds of such Borrowing to be used to
repay Conventional Revolving Loans (as defined under the Additional Credit
Agreement to which the Company is a party) or Conventional Loans (as defined
under the Existing Credit Agreement to which the Company is a party, as amended
and restated as of the date hereof), in each case the proceeds of which were
used to fund Acquisition Payments. If no election as to the type of Borrowing is
specified, then the requested Borrowing shall consist of Alternate Base Rate
Loans. If no Interest Period is specified with respect to any Borrowing
consisting of Eurodollar Loans, then the Company shall be deemed to have
selected the shortest permitted Interest Period. The Administrative Agent shall
promptly give like notice to the other Lenders, and on the Borrowing Date each
Lender shall make its share of the Borrowing available to the Administrative
Agent at its Principal Office no later than 12:00 noon (New York, New York time)
in immediately available funds.
Section 2.02 Delivery of Proceeds; Recordation of Loans; Interest.
(a) The Administrative Agent shall pay or deliver the proceeds of
each Borrowing to or upon the order of the Company. Each Lender shall keep
accurate records as to the Loans made by it, including (A) the date and
principal amount of each Loan, (B) the rate of interest applicable to such Loan,
and (C) each payment of principal thereon; provided that the failure of such
Lender to record such amounts, dates and rates shall not diminish or impair the
Company's obligation to repay all principal advanced and to pay all interest
accruing under its Loans in accordance with the terms hereof.
(b) Substitute Rate. Anything in this Agreement to the contrary
notwithstanding, if at any time prior to the determination of the rate with
respect to any proposed Loan the Majority Lenders in their discretion shall
determine with respect to Eurodollar Loans to be made or continued by them on
the applicable Borrowing Date or continuation date or, with respect to Loans to
be converted to Eurodollar Loans, on the applicable conversion date, that there
is a reasonable probability that Dollar deposits will not be offered to such
Lenders in the interbank eurodollar market for a period of time equal to the
applicable Interest Period in amounts equal to the amount of each such Lender's
Eurodollar Loan in Dollars or that the Eurodollar Rate does not reflect the cost
of funding by the Lenders or that adequate and fair means do not exist to be
able to determine the Eurodollar Rate, then:
(A) the Majority Lenders (acting through the
Administrative Agent) or the Administrative Agent, as the case may
be, shall give the Company notice thereof; and
(B) Alternate Base Rate Loans or Federal Funds Rate
Loans, as selected by the Company in accordance with Section 2.01(c)
(or, if the Company does not provide timely notice of its selection,
Alternate Base Rate Loans) shall be made in lieu of any Eurodollar
Loans that were to have been made at such time.
(c) Interest. The Loans shall bear interest as follows:
(i) Each Alternate Base Rate Loan shall be made in Dollars
and shall bear interest on the unpaid principal amount thereof from time
to time outstanding at a rate per annum (for the actual number of days
elapsed, based on a year of 365 or 366 days, as the case may be)
15
which shall be equal to the lesser of (A) the Alternate Base Rate plus the
Alternate Base Rate Margin, or (B) the Highest Lawful Rate.
(ii) Each Eurodollar Loan shall be made in Dollars and shall
bear interest on the unpaid principal amount thereof from time to time
outstanding at a rate per annum (for the actual number of days elapsed,
based on a year of 360 days) which shall be equal to the lesser of (A) the
Eurodollar Rate plus the applicable Margin Percentage, or (B) the Highest
Lawful Rate.
(iii) Each Federal Funds Rate Loan shall be made in Dollars
and shall bear interest on the unpaid principal amount thereof from time
to time outstanding at a rate per annum (for the actual number of days
elapsed, based on a year of 360 days) which shall be equal to the lesser
of (A) the Federal Funds Borrowing Rate plus the applicable Margin
Percentage, or (B) the Highest Lawful Rate.
(iv) Interest on the outstanding principal of each Loan shall
accrue from and including the Borrowing Date for such Loan to but
excluding the date such Loan is paid in full and shall be due and payable
(A) on the Interest Payment Date for each Eurodollar Loan and on each
Quarterly Date for each Alternate Base Rate Loan or Federal Funds Rate
Loan, (B) as to any Eurodollar Loan having an Interest Period greater than
three months, at the end of the third month of the Interest Period for
such Loan, and (C) as to all Loans, at maturity, whether by acceleration
or otherwise, or after notice of prepayment in accordance with Section
2.02(d)(i) or Section 3.01(c) hereof, on and after the Required Prepayment
Date or the applicable prepayment date, as the case may be, as specified
in such notice.
(v) Past due principal, pursuant to acceleration, the
Company's failure to make a prepayment on the date specified in the
applicable prepayment notice or otherwise, and to the extent permitted by
applicable law, past due interest and (after the occurrence of an Event of
Default) past due fees, pursuant to acceleration or otherwise, shall bear
interest from their respective due dates, until paid, at the Default Rate.
(d) Change of Law.
(i) Anything in this Agreement to the contrary
notwithstanding, if at any time any Lender in good faith determines (which
determination shall be conclusive absent manifest error) that any change
after the date hereof in any applicable law, rule or regulation or in the
interpretation or administration thereof makes it unlawful, or any central
bank or other governmental authority asserts that it is unlawful (any of
the above being described as a "Eurodollar Event"), for such Lender or its
foreign branch or branches to maintain or fund any Loan by means of Dollar
deposits obtained in the interbank eurodollar market, then, at the option
of such Lender (to the extent practicable, after consultation with the
Company as to its preference and after making a reasonable effort to give
effect to such preference), the aggregate principal amount of each of such
Lender's Eurodollar Loans then outstanding, which Loans are directly
affected by such Eurodollar Event shall either (x) be prepaid or (y) be
converted to a Loan of another type that is not so directly affected by
such Eurodollar Event. Any remaining obligation of such Lender hereunder
to make Eurodollar Loans (but not Federal Funds Rate Loans or Alternate
Base Rate Loans), shall be suspended for so long as such Eurodollar Event
shall continue. Upon the occurrence of any Eurodollar Event, and at any
time thereafter so long as such Eurodollar Event shall continue, such
Lender may exercise its aforesaid option by giving written notice thereof
to the Administrative Agent and the Company. Any prepayment of any
Eurodollar Loan which is required under this Section 2.02(d) shall be
made, together with accrued and unpaid interest and all other amounts
payable to such Lender under this Agreement
16
with respect to such prepaid Loan (including, without limitation, amounts
payable pursuant to Section 2.02(e)), on the date stated in the notice to
the Company referred to above, which date ("Required Prepayment Date")
shall be not less than 15 days (or such earlier date as shall be necessary
to comply with the relevant law, rule or regulation) from the date of such
notice. If any Eurodollar Loan is required to be prepaid under this
Section 2.02(d), the Lenders agree that at the written request of the
Company, the Lender that has made such Eurodollar Loan shall make a Loan
of another type, as selected by the Company, that, in each case, is not so
directly affected by such Eurodollar Event on the Required Prepayment Date
to the Company in the same principal amount as the Eurodollar Loan of such
Lender being so prepaid. Any such written request by the Company for
Alternate Base Rate Loans under this Section 2.02(d) shall be irrevocable
and, in order to be effective, must be delivered to the Administrative
Agent not less than one Business Day prior to the Required Prepayment
Date.
(ii) Notwithstanding the foregoing, in the event the Company
is required to pay to any Lender amounts with respect to any Borrowing
pursuant to Section 2.02(d)(i), the Company may give notice to such Lender
(with copies to the Administrative Agent) that it wishes to seek one or
more assignees (which may be one or more of the Lenders) to assume the
Commitment of such Lender and to purchase its outstanding Loans and the
Administrative Agent will use its best efforts to assist the Company in
obtaining an assignee; provided that if more than one Lender requests that
the Company pay substantially and proportionately equal additional amounts
under Section 2.02(d)(i) and the Company elects to seek an assignee to
assume the Commitments of any of such affected Lenders, the Company must
seek an assignee or assignees to assume the Commitments of all of such
affected Lenders. Each Lender requesting compensation pursuant to Section
2.02(d)(i) agrees to sell its Commitment, Loans and interest in this
Agreement in accordance with Section 13.07 to any such assignee for an
amount equal to the sum of the outstanding unpaid principal of and accrued
interest on such Loans, plus all other fees and amounts (including,
without limitation, any compensation claimed by such Lender under Section
2.02(d)(i) and Section 2.02(e)) due such Lender hereunder calculated, in
each case, to the date such Commitment, Loans and interest are purchased.
Upon such sale or prepayment, each such Lender shall have no further
Commitment or other obligation to the Company hereunder.
(e) Fundings and Exchange Losses. In the event of (i) any payment
or prepayment (whether authorized or required hereunder pursuant to acceleration
or otherwise) or conversion of all or a portion of any Eurodollar Loan on a day
other than the last day of the Interest Period therefor, (ii) any failure to
make, prepay, continue or convert a Borrowing consisting of any Eurodollar Loan
after the delivery of the Notice of Borrowing, Interest Election Request or
notice of prepayment, as the case may be, for such Eurodollar Loan on the
applicable Borrowing Date or continuation, conversion or prepayment date
therefor, (iii) the failure of any Loan to be made by any Lender due to any
condition precedent to a Loan not being satisfied or as a result of this Section
2.02 or due to any other action or inaction of the Company, or (iv) the
assignment of any Eurodollar Loan on a day other than the last day of the
Interest Period therefor as a result of a request by the Company, the Company
shall pay to each affected Lender upon its request made on or before 45 days
after the occurrence of any such event, acting through the Administrative Agent,
such amount or amounts (to the extent such amount or amounts would not be
usurious under applicable law) as may be necessary to compensate such Lender for
any direct costs and losses incurred by such Lender (including, without
limitation, such amount or amounts as will compensate it for the amount by which
the rate of interest that would have accrued on such Loan had such event not
occurred, at the Eurodollar Rate for the period from the date of such prepayment
to the end of the then current Interest Period therefor (or, in the case of a
failure to borrow, convert or continue, the Interest Period that would have
begun on the date of such failure), exceeds the rate of interest that would
accrue for such period at the interest rate which such Lender would bid, at the
beginning of such period, for deposits of a comparable amount and period from
lenders in the relevant eurodollar or domestic
17
certificate of deposit market, all as determined by such Lender in its good
faith discretion), but otherwise without penalty. Any such claim by a Lender for
compensation shall be made through the Administrative Agent and shall be
accompanied by a certificate signed by an officer of such Lender authorized to
so act on behalf of such Lender, setting forth in reasonable detail the
computation upon which such claim is based. The obligations of the Company under
this Section 2.02(e) shall survive the termination of this Agreement.
(f) Increased Costs - Taxes, Reserve Requirements, Etc.
(i) The Company for and on behalf of each Lender shall pay
or cause to be paid directly to the appropriate governmental authority or
shall reimburse or compensate each Lender upon demand by such Lender in
good faith, acting through the Administrative Agent, for all costs
incurred, losses suffered or payments made, as determined by such Lender,
by reason of any and all present or future Taxes (including, without
limitation, any interest equalization tax or any similar tax on the
acquisition of debt obligations), whether or not such Taxes were correctly
or legally asserted, on or with regard to any aspect of the transactions
with respect to this Agreement and the Loans (except for (i) Excluded
Taxes and (ii) Indemnified Taxes or Other Taxes paid pursuant to Section
2.02(f)(ii), Section 2.03 or Section 2.04).
(ii) The Company shall pay immediately upon demand by any
Lender, acting through the Administrative Agent, any Other Taxes in
connection with any Loans or this Agreement or in connection with the
enforcement hereof or thereof; provided that the Company shall not be
required to pay any such Other Taxes on behalf of any Lender that (i)
becomes a party to this Agreement by assignment pursuant to Section 13.07
or (ii) designates a new Lending Office, in each case to the extent such
Other Taxes are imposed at the time such Lender becomes a party to this
Agreement or designates a new Lending Office in an amount greater than the
amount the assignor or such Lender was entitled to at the time of the
assignment or designation.
(iii) If any Lender or the Administrative Agent receives a
refund in respect of Taxes for which such Lender or the Administrative
Agent has received payment from the Company hereunder, it shall promptly
notify the Company of such refund and shall, within 30 days after receipt
of such refund, if no Event of Default has occurred and is continuing,
repay such refund to the Company with interest if any interest is received
thereon by such Lender or the Administrative Agent; provided that if an
Event of Default has occurred and is continuing, such refund shall be
applied to the outstanding Loans or paid to the Company once such Event of
Default no longer exists; provided further, that the Company, upon the
request of such Lender or the Administrative Agent, agrees to return such
refund (plus penalties, interest or other charges) to such Lender or the
Administrative Agent in the event such Lender or the Administrative Agent
is required to repay such refund.
(iv) (A) The Company shall reimburse or compensate each
Lender upon demand by such Lender, acting through the Administrative
Agent, for all costs incurred, losses suffered or payments made in
connection with any Eurodollar Loans or any part thereof which costs,
losses or payments are a result of any future reserve, special deposit or
similar requirement against assets of, liabilities of, deposits with or
for the account of, or Loans by such Lender imposed on such Lender, its
foreign lending branch, or the interbank eurodollar market by any
regulatory authority, central bank or other governmental authority,
whether or not having the force of law, including, without limitation,
Regulation D.
(B) If as a result of (y) the introduction of or any
change in or in the interpretation or administration of any law or
regulation after the date hereof or (z) the
18
compliance with any request made after the date hereof from any
central bank or other governmental authority (whether or not having
the force of law), there shall be any increase in the cost to any
Lender of agreeing to make or making, funding or maintaining Loans
for which such Lender shall not have been reimbursed pursuant to the
provisions of clause (A) above (other than any such increase in
costs resulting from Taxes, as to which Sections 2.02(f)(i)-(ii) and
2.03 shall govern), then the Company shall from time to time, upon
demand by such Lender, acting through the Administrative Agent, pay
to such Lender additional amounts sufficient to indemnify such
Lender against the full amount of such increased cost.
(C) Any Lender claiming reimbursement or compensation
under this Section 2.02(f)(iv) shall make its demand on or before 45
days after the end of each Interest Period during which any such
cost is incurred, loss is suffered or payment is made and shall
provide the Administrative Agent, which in turn shall provide the
Company, with a written statement in reasonable detail the
calculation of the amount and basis of its request, which statement,
subject to Section 2.02(g), shall be conclusive absent manifest
error; provided that in the event any reimbursement or compensation
demanded by a Lender under this Section 2.02(f) is a result of
reserves actually maintained pursuant to the requirements imposed by
Regulation D with respect to "Eurocurrency liabilities" (as defined
or within the meaning of such Regulation), such demand shall be
accompanied by a statement of such Lender in the form of Exhibit
2.02(f)(iv) attached hereto, which statement shall be conclusive and
binding on the Company, subject to Section 2.02(g), except in the
case of manifest error. No Lender may request reimbursement or
compensation under this Section 2.02(f)(iv) for any period prior to
the period for which demand has been made in accordance with the
foregoing sentence. In preparing any statement delivered under this
Section 2.02(f)(iv), such Lender may employ such assumptions and
allocation of costs and expenses as it shall in good xxxxx xxxx
reasonable and may be determined by any reasonable averaging and
attribution method. So long as any notice requirement provided for
herein has been satisfied, any decision by the Administrative Agent
or any Lender not to require payment of any interest, cost or other
amount payable under this Section 2.02(f)(iv), or to calculate any
amount payable by a particular method, on any occasion, shall in no
way limit or be deemed a waiver of the Administrative Agent's or
such Lender's right to require full payment of any interest, cost or
other amount payable hereunder, or to calculate any amount payable
by another method, on any other or subsequent occasion for a
subsequent Interest Period.
(v) If any Lender shall have determined in good faith that
any applicable law, rule, regulation or guideline regarding capital
adequacy (each, a "Capital Adequacy Pronouncement") adopted after the date
hereof, or any change after the date hereof in any Capital Adequacy
Pronouncement now or hereafter in effect, or any change after the date
hereof in the interpretation or administration of any Capital Adequacy
Pronouncement now or hereafter in effect by any governmental authority,
central bank or comparable agency charged with the interpretation or
administration thereof, or compliance by any Lender (or any Lending Office
of such Lender) with any request or directive regarding capital adequacy
(whether or not having the force of law) made after the date hereof of any
such governmental authority, central bank or comparable agency has the
effect of reducing the rate of return on such Lender's capital or the
capital of any Person controlling such Lender as a consequence of its
obligations hereunder to a level below that which such Lender would have
achieved as a consequence of its obligations hereunder but for such
adoption, change or compliance (taking into consideration such Lender's
policies with respect to capital adequacy) by an amount deemed in good
faith by such Lender to
19
be material, then from time to time, upon notice by the Lender requesting
(through the Administrative Agent) compensation, under this Section
2.02(f)(v) within 90 days after such Lender has obtained knowledge of such
event, the Company shall pay to the Administrative Agent for the account
of such Lender such additional amount or amounts as will compensate such
Lender for such reduction. Any such claim by a Lender for compensation
shall be made through the Administrative Agent and shall be accompanied by
a certificate signed by an officer of such Lender authorized to so act on
behalf of such Lender setting forth in reasonable detail the calculation
upon which such claim is based.
(vi) Notwithstanding the foregoing, in the event the Company
is required to pay to any Lender amounts pursuant to Section
2.02(f)(i)-(ii), 2.02(f)(iv)-(v) or Section 2.04, the Company may give
notice to such Lender (with copies to the Administrative Agent) that it
wishes to seek one or more assignees (which may be one or more of the
Lenders) to assume the Commitment of such Lender and to purchase its
outstanding Loans and the Administrative Agent will use its best efforts
to assist the Company in obtaining an assignee; provided that if more than
one Lender requests that the Company pay substantially and proportionately
equal additional amounts under Section 2.02(f) or Section 2.03 and the
Company elects to seek an assignee to assume the Commitments of any of
such affected Lenders, the Company must seek an assignee or assignees to
assume the Commitments of all of such affected Lenders. Each Lender
requesting compensation pursuant to Section 2.02(f)(i), Section
2.02(f)(ii), Section 2.02(f)(iv), Section 2.02(f)(v) or Section 2.03
agrees to sell its Commitment, its outstanding Loans and interest in this
Agreement in accordance with Section 13.07 to any such assignee for an
amount equal to the sum of the outstanding unpaid principal of and accrued
interest on such Loans, plus all other fees and amounts (including,
without limitation, any compensation claimed by such Lender under Section
2.02(e) or Section 2.03) due such Lender hereunder calculated, in each
case, to the date such Commitment, Loans and interest are purchased. Upon
such sale or prepayment, each such Lender shall have no further Commitment
or other obligation to the Company hereunder.
(vii) Any Lender claiming any amounts pursuant to this Section
2.02(f) or Section 2.03 shall use its reasonable good faith efforts
(consistent with its internal policies and legal and regulatory
restrictions) to avoid or minimize the payment by the Company of any
amounts under this Section 2.02(f) or Section 2.03, including changing the
jurisdiction of its Lending Office; provided that no such change or action
shall be required to be made or taken if, in the reasonable judgment of
such Lender, such change would be materially disadvantageous to such
Lender.
(viii) The obligations of the Company under this Section
2.02(f) created in accordance with this Section 2.02(f) shall survive the
termination of the Commitments and this Agreement.
(g) Calculation Errors. Each calculation by the Administrative
Agent or any Lender with respect to amounts owing or to be owing by the Company
pursuant to this Agreement or any Loan shall be conclusive except in the case of
error. In the event the Administrative Agent determines in good faith within a
reasonable time that any such error shall have occurred in connection with the
determination of the applicable interest rate for any Loan which results in the
Company paying either more or less than the amount which would have been due and
payable but for such error, then (i) any Lender that received an overpayment
shall promptly refund such overpayment to the Company and (ii) if any Lender
received an underpayment, the Company shall promptly pay to such Lender the
amount of such underpayment. In the event it is determined within a reasonable
time that any Lender, acting through the Administrative Agent, has miscalculated
any amount for which it has demanded
20
reimbursement or compensation from the Company in respect of amounts owing by
the Company other than interest which results in the Company paying more or less
than the amount which would have been due and payable but for such error, such
Lender or the Company, as the case may be, shall promptly refund or pay, as the
case may be, to the other the full amount of such overpayment or underpayment.
In the event it is determined within a reasonable time that the Company has
miscalculated the Commitment Fees due under Section 4.03, which results in the
Company paying more or less than the amount which would have been due and
payable but for such error, (x) any Lender that received an overpayment shall
promptly refund such overpayment to the Company and (y) if any Lender received
an underpayment, the Company shall promptly pay to such Lender the amount of
such underpayment. Any party making a request for payment pursuant to this
Section 2.02(g) shall provide with such request a statement in reasonable detail
showing the calculation of the amount requested.
Section 2.03 Setoff, Counterclaims and Taxes. All payments (whether
of principal, interest, fees, reimbursements or otherwise) under this Agreement
shall be made by the Company without setoff or counterclaim and shall be made
free and clear of and without deduction (except as specifically provided in
Section 2.04) for any Taxes now or hereafter imposed, other than for Excluded
Taxes. Except as specifically provided in Section 2.04, if the Company shall be
required by applicable law to deduct or withhold from any such payment any such
Taxes (other than Excluded Taxes), then the Company shall (i) notwithstanding
anything to the contrary in this Agreement, deduct or withhold an amount equal
to such Tax from the amounts payable under this Agreement, (ii) make such Tax
payment as so required to the relevant governmental authority in accordance with
applicable law, and (iii) provided that such Lender has complied with the
requirements of Section 2.04, pay to the Administrative Agent for the account of
such Lender, on the date of each such payment, such additional amount as may be
necessary in order that the net amount received by such Lender after such
deduction or withholding (including any deduction or withholding applicable to
additional amounts payable under this Section 2.03) shall equal the amount which
would have been received if such deduction or withholding were not required. The
Company shall confirm that all applicable Taxes (other than Excluded Taxes), if
any, imposed on this Agreement or transactions hereunder shall have been
properly and legally paid by it to the appropriate taxing authorities by sending
official Tax receipts or notarized copies of such receipts to the Administrative
Agent within 30 calendar days after payment of any applicable Tax, to the extent
such receipts are issued therefor, or other written proof of payment thereof
that is reasonably satisfactory to the Administrative Agent. Upon request of any
Lender, the Administrative Agent shall forward to such Lender a copy of such
official receipt or a copy of such notarized copy of such receipt or other
written proof of payment.
Section 2.04 Withholding Tax Exemption.
(a) To the extent not previously delivered, at least five Business
Days prior to the first date on which interest or fees are payable hereunder to
the Lenders in the case of each Lender that is listed on the signature pages of
this Agreement, and on the later of such date and the date of the assignment
pursuant to Section 13.07 pursuant to which it becomes a Lender in the case of
each other Lender, and from time to time thereafter as reasonably requested in
writing by the Company (but only so long thereafter as such Lender remains
lawfully able to do so):
(i) each Lender that is a "United States person" that is not
a "domestic" corporation (as such terms are defined in Section 7701(a)(30)
of the Code) shall provide each of the Administrative Agent and the
Company with an original Internal Revenue Service Form W-9, or any
successor or other form prescribed by the Internal Revenue Service,
properly completed and duly executed under penalties of perjury; and
(ii) each Lender that is a Foreign Lender shall provide each
of the Administrative Agent and the Company with either:
21
(A) an original Internal Revenue Service Form W-8BEN,
W-8IMY or W-8ECI, as appropriate, or any successor or other form
prescribed by the Internal Revenue Service, properly completed and
duly executed under penalties of perjury, certifying that such
Lender is exempt or entitled to a zero (0) rate of United States
withholding tax on payments pursuant to this Agreement, or
(B) a certificate, duly executed under penalties of
perjury, that it is not (I) a "bank" (within the meaning of Section
881(c)(3)(A)of the Code), (II) a "ten-percent shareholder" (within
the meaning of Section 871(h)(3)(B) of the Code) of the Company, or
(III) a "controlled foreign corporation" related to the Company
(within the meaning of Section 864(d)(4) of the Code), and an
original Internal Revenue Service Form W-8BEN or Form W-8IMY, as
appropriate, or any successor or other form prescribed by the
Internal Revenue Service, properly completed and duly executed under
penalties of perjury, certifying that such Lender is exempt from
United States withholding tax on payments pursuant to this
Agreement.
(b) Each Lender shall deliver such new forms and documents
prescribed by the Internal Revenue Service upon the expiration or obsolescence
of any previously delivered forms or other documents referred to in Section
2.04(a), or after the occurrence of any event requiring a change in the most
recent forms or other documents delivered by such Lender. Such Lender shall
promptly provide written notice to each of the Administrative Agent and the
Company at any time it determines that it is no longer in a position to provide
any previously delivered form or other document (or any other form of
certification adopted by the Internal Revenue Service for such purpose).
(c) In no event will any withholding by the Company on any
interest payable to any Lender as contemplated by this Section 2.04 give rise to
a Default under Section 10.01 with respect to payments of interest.
Section 2.05 Interest Election(a). (a) Each Borrowing initially
shall be of the type specified in the applicable notice of borrowing and, in the
case of a Borrowing consisting of Eurodollar Loans shall have an initial
Interest Period as specified in such notice. Thereafter, the Company may elect
to convert such Borrowing to a different type or to continue such Borrowing and,
in the case of a Borrowing consisting of Eurodollar Loans, may elect Interest
Periods therefor, all as provided in this Section 2.05. The Company may elect
different options with respect to different portions of the affected Borrowing,
in which case each such portion shall be allocated ratably among the Lenders
holding the Loans comprising such Borrowing, and the Loans comprising each such
portion shall be considered a separate Borrowing.
(b) To make an election pursuant to this Section 2.05 the Company
shall notify the Administrative Agent of such election by telephone by the time
that a notice of borrowing would be required under the applicable provisions of
Section 2.01 if the Company were requesting the advancement of new funds of the
same type resulting from such election to be made on the effective date of such
election. Each such telephonic election shall be irrevocable and shall be
confirmed promptly by hand delivery or telecopy to the Administrative Agent of a
written Interest Election Request in a form approved by the Administrative Agent
and signed by the Company.
(c) Each telephonic and written Interest Election Request shall
specify the following information in compliance with Section 2.01:
(i) the Borrowing to which such Interest Election Request
applies and, if different options are being elected with respect to
different portions thereof, the portions thereof
22
to be allocated to each resulting Borrowing (in which case the information
to be specified pursuant to clauses (iii) and (iv) below shall be
specified for each resulting Borrowing);
(ii) the effective date of the election made pursuant to such
Interest Election Request, which shall be a Business Day;
(iii) whether the resulting Borrowing is to be an Alternate
Base Rate Loan, a Federal Funds Rate Loan or a Eurodollar Loan; and
(iv) if the resulting Borrowing is a Eurodollar Loan, the
Interest Period to be applicable thereto after giving effect to such
election, which shall be a period contemplated by the definition of the
term "Interest Period."
If any such Interest Election Request requests a Eurodollar Loan but
does not specify an Interest Period, or if the Company fails to deliver a timely
Interest Election Request with respect to such a Borrowing prior to the end of
the Interest Period applicable thereto, then, unless in the case or such failure
to deliver an Interest Rate Election the applicable Loans are repaid, the
Company shall be deemed to have selected the shortest possible Interest Period.
(d) Promptly following receipt of an Interest Election Request,
the Administrative Agent shall advise each Lender of the details thereof and of
such Lender's portion of each resulting Borrowing.
(e) Notwithstanding any contrary provision hereof, if an Event of
Default exists and the Administrative Agent, at the request of the Majority
Lenders, so notifies the Company, then, so long as an Event of Default is
continuing (i) no outstanding Loan may be converted to or continued as a
Eurodollar Loan and (ii) unless repaid, each Eurodollar Loan shall be converted
to an Alternate Base Rate Loan at the end of the Interest Period applicable
thereto. The foregoing is without prejudice to the other rights and remedies
available hereunder upon an Event of Default.
Section 2.06 Obligations Several, Not Joint. The obligations of the
Lenders hereunder are several and not joint. The failure of any Lender to make
the Loan to be made by it as part of any borrowing shall not relieve any other
Lender of its obligation to make its Loan on the date of such borrowing, and no
Lender shall be responsible for the failure of any other Lender to make the Loan
to be made by such other Lender on the date of any borrowing.
Section 2.07 Replacement of Lenders. If any Lender requests
compensation under Section 2.03, or if the Company is required to pay any
additional amount to any Lender or any governmental authority for the account of
any Lender pursuant to Section 2.03, or if any Lender defaults in its obligation
to fund Loans hereunder, then the Company may, at its sole expense and effort,
upon notice to such Lender and the Administrative Agent, require such Lender to
assign and delegate, without recourse (in accordance with and subject to the
restrictions contained in Section 13.07), all its interests, rights and
obligations under this Agreement to an assignee that shall assume such
obligations (which assignee may be another Lender, if a Lender accepts such
assignment); provided that (i) the Company shall have received the prior written
consent of the Administrative Agent, which consent shall not be unreasonably
withheld and (ii) such Lender shall have received payment of an amount equal to
the outstanding principal of its Loans, accrued interest thereon, accrued fees
and all other amounts payable to it hereunder, from the assignee or the Company.
A Lender shall not be required to make any such assignment and delegation if,
prior thereto, as a result of a waiver by such Lender or otherwise, the
circumstances entitling the Company to require such assignment and delegation
cease to apply.
23
Section 2.08 Evidence of Debt. Any Lender may request that Loans
made by it be evidenced by a promissory note. In such event, the Company shall
prepare, execute and deliver to such Lender a promissory note payable to the
order of such Lender (or, if requested by such Lender, to such Lender and its
registered assigns) and in a form approved by the Administrative Agent and the
Company. Thereafter, the Loans evidenced by such promissory note and interest
thereon shall at all times (including after assignment pursuant to Section
13.07) be represented by one or more promissory notes in such form payable to
the order of the payee named therein (or, if such promissory note is a
registered note, to such payee and its registered assigns).
ARTICLE III.
OPTIONAL AND REQUIRED PREPAYMENTS;
INTEREST PAYMENT DATE AND COMMITMENT REDUCTION DATE PAYMENTS; OTHER
PAYMENTS
Section 3.01 Optional Prepayments. Loans may be prepaid in whole or
from time to time in part at the option of the Company on any Business Day,
without premium or penalty, notwithstanding that such Business Day is not an
Interest Payment Date; provided that:
(a) losses, if any, incurred by any Lender under Section 2.02(e)
shall be payable with respect to each such prepayment of any Eurodollar
Loan;
(b) all partial prepayments shall be in an aggregate principal
amount of at least $2,000,000 and an integral multiple of $100,000;
(c) the Company shall give the Administrative Agent not less than
one full Business Day's prior oral or written notice of each prepayment of
any Eurodollar Loans, or any portion thereof, and notice to the
Administrative Agent not less than 10:00 a.m. (New York, New York time) on
the same day of the prepayment of Federal Funds Rate Loans or Alternate
Base Rate Loans, or any portion thereof, proposed to be made pursuant to
this Section 3.01, specifying the aggregate principal amount to be prepaid
and the prepayment date; provided that with respect to each oral notice of
a prepayment, the Company shall deliver promptly to the Administrative
Agent a confirmatory written notice of such proposed prepayment; and
(d) prepayments shall be allocated to all outstanding Loans for
payment ratably to the holders thereof.
The Administrative Agent shall promptly notify the affected Lenders of the
principal amount to be prepaid and the prepayment date. Notice of such
prepayment shall be irrevocable and having been given as aforesaid, the
principal amount specified in such notice, together with accrued and unpaid
interest thereon to the date of prepayment, shall become due and payable on such
prepayment date, and the provisions of Section 2.02(e) shall be applicable. The
Company shall have no optional right to prepay the principal amount of any Loan
other than as provided in this Section 3.01.
Section 3.02 Required Prepayments. (a) If and whenever any
Specified Proceeds are received at any time after the Closing Date by the
Company or any Restricted Subsidiary, the Company shall prepay the Loans on the
third Business Day thereafter in an amount equal to the amount of Specified
Proceeds so received.
24
(b) All prepayments made pursuant to the provisions of this
Section 3.02 shall be applied to all outstanding Loans for payment ratably to
the holders thereof. The Company shall have no right to reborrow any amount
prepaid under Section 3.02(a).
Section 3.03 Place, etc. of Payments and Prepayments. All payments
and prepayments made in accordance with the provisions of this Agreement in
respect of the Commitment Fees and the Administrative Agent's fee and of
principal of and interest on the Loans and interest thereon shall be made to the
Administrative Agent in Dollars at its Principal Office, in immediately
available funds for the account of the Lenders. The Administrative Agent will
promptly distribute to the Lenders, in accordance with each Lender's Prepayment
Pro Rata Share as to the Loans being paid or prepaid, in immediately available
funds, the amount of principal, interest and Commitment Fees received by the
Administrative Agent for the account of such Lenders; provided that if interest
shall accrue on any Loan at a rate different from the rate applicable to any
other such Loan, payment and distribution of interest shall be based on the
respective accrual rates applicable to such Loans. Any payment to the
Administrative Agent for the account of a Lender under this Agreement shall
constitute payment by the Company to such Lender of the amounts so paid to the
Administrative Agent, and any Loans or portions thereof so paid shall not be
considered outstanding for any purpose after the date of such payment to the
Administrative Agent.
ARTICLE IV.
REDUCTION OF COMMITMENTS; FEES
Section 4.01 Optional Reduction or Termination of Commitments. The
Company may at any time or from time to time reduce ratably in proportion to
their respective Commitments or terminate in whole, the respective Commitments
of the Lenders hereunder by giving not less than three full Business Days' prior
written notice to such effect to the Administrative Agent; provided that any
partial reduction shall be in an aggregate amount of not less than $2,000,000
and an integral multiple of $250,000. The Administrative Agent shall promptly
notify each Lender of its proportionate share of and of the date of each such
reduction. After each such reduction, the Commitment Fees owing to each Lender
shall be calculated upon the Commitment of such Lender as so reduced. In the
event of acceleration of the maturity date of any Loan, the Commitments
hereunder of the Lenders shall thereupon automatically terminate without notice.
Each such reduction or any termination of the Commitments hereunder shall be
irrevocable.
Section 4.02 Mandatory Reduction and Termination of Commitments(a) .
The Commitments shall automatically terminate at the close of business on the
Loan Availability Expiration Date.
(b) If and whenever any Specified Proceeds are received at any
time on or prior to the Closing Date by the Company or any Restricted
Subsidiary, the Commitments shall immediately and automatically be reduced by an
amount equal to the amount of Specified Proceeds so received. Such reduction
shall be allocated to the Lenders ratably in proportion to their Commitments.
Section 4.03 Commitment Fees. The Company agrees to pay to the
Administrative Agent for the account of each Lender, in Dollars, commitment fees
("Commitment Fees"), computed on a daily basis of a year of 365 or 366 days, as
the case may be, at a rate per annum equal to the applicable Commitment Fee Rate
from time to time in effect from the earlier of the Closing Date or December 15,
2004 until the Loan Availability Expiration Date, on the daily average unused
amount of the Commitment of such Lender. Each such Commitment Fee shall be
payable on or before the 15th day following each
25
Quarterly Date or on such earlier date as the Commitment of such Lender shall
terminate pursuant to the terms of this Agreement.
Section 4.04 Administrative Agent's Fee. Until payment in full of
the Loans and termination of the Commitments, the Company agrees to pay to the
Administrative Agent, for its own account, the annual administration fee
provided for in the fee letter executed by them.
ARTICLE V.
APPLICATION OF PROCEEDS
The Company agrees that the proceeds of the Loans funded on any
Funding Date shall be used only to make Acquisition Payments or to repay
revolving credit loans under the Additional Credit Agreement or the Existing
Credit Agreement (as amended and restated as of the date hereof) to which the
Company is a party, the proceeds of which were used to make Acquisition
Payments.
ARTICLE VI.
REPRESENTATIONS AND WARRANTIES
The Company represents and warrants that:
Section 6.01 Organization; Qualification; Subsidiaries. The Company
and each Subsidiary (i) is duly organized, validly existing and in good standing
under the laws of its jurisdiction of incorporation or organization, (ii) has
the corporate or organizational power to own its properties and to carry on its
business as now conducted, and (iii) is duly qualified to do business and is in
good standing in every jurisdiction where failure to be duly qualified would
have a Material Adverse Effect. Attached hereto as Exhibit 6.01 is a correct and
complete list setting forth, as of the date of this Agreement: (A) the name of
each Subsidiary, (B) the Company's and its Subsidiaries' aggregate percentage
interest in such Subsidiary, and (C) whether such Subsidiary is a Restricted or
Unrestricted Subsidiary. All shares of capital stock of Restricted Subsidiaries
owned by the Company or any Restricted Subsidiary are owned thereby free and
clear of all Liens.
Section 6.02 Financial Statements. The Company has furnished (either
in hard copy or electronically) each Lender with the consolidated financial
statements for the Company and its Subsidiaries as at and for its fiscal year
ended December 31, 2003, accompanied by the opinion of Deloitte & Touche, and
quarterly consolidated financial statements as at and for the period ended
September 30, 2004. Such statements have been prepared in conformity with GAAP
consistently applied throughout the period involved, except as may be explained
in such opinion and except, in the case of interim statements, for year-end
audit adjustments and the absence of footnotes. Such statements fairly present
in all material respects the financial condition of the Company and its
Subsidiaries on a consolidated basis and the results of its and their operations
as at the dates and for the periods indicated. There has been no material
adverse change in the financial condition or the business or properties of the
Company and its Restricted Subsidiaries on a consolidated basis since December
31, 2003; provided that for purposes of this sentence, the provisions of the
Cable Television Consumer Protection and Competition Act of 1992 and the
Telecommunications Act of 1996 and the regulations adopted by the FCC pursuant
to such statutes that are in effect as of the date hereof shall not be
considered.
Section 6.03 Actions Pending. Except as disclosed in Exhibit 6.03
attached hereto, there is no action, suit or proceeding pending or, to the
knowledge of the Company, threatened against the
26
Company or any Subsidiary before any court or administrative agency or other
governmental authority which could reasonably be expected, individually or in
the aggregate, to have a Material Adverse Effect.
Section 6.04 Default. Neither the Company nor any Subsidiary is (i)
in default under the provisions of any instrument evidencing any Debt or any
other liability, contingent or otherwise, or of any agreement relating thereto
or (ii) in default under or in violation of any order, writ, injunction or
decree of any court, or in default under or in violation of any order,
regulation or demand of any governmental instrumentality, other than for such
defaults or violations under clauses (i) and (ii) above which taken in the
aggregate do not have a Material Adverse Effect.
Section 6.05 Title to Assets. Except as would not have a Material
Adverse Effect, the Company and each Restricted Subsidiary have good and
marketable title to their respective assets, subject to no Liens except
Permitted Liens.
Section 6.06 Payment of Taxes. The Company and each Subsidiary have
filed all Federal and material state income and franchise tax returns, or
extensions therefor, which, to the knowledge of the officers thereof, are
required to be filed and have paid all material taxes shown on said returns and
all material assessments which are due (other than those the amount or validity
of which are currently being contested in good faith by appropriate
proceedings). The Company and its officers know of no claims by any governmental
authority for any unpaid taxes which claims in the aggregate could reasonably be
expected to have a Material Adverse Effect.
Section 6.07 Conflicting or Adverse Agreements or Restrictions.
Neither the Company nor any Subsidiary is a party to any contract or agreement
or subject to any restriction which has a Material Adverse Effect. Neither the
execution nor delivery of this Agreement nor compliance with the terms and
provisions hereof or of any instruments required hereby will be contrary to the
provisions of, or constitute a default under, (i) the charter or by-laws of the
Company or any Subsidiary or (ii) any law or any regulation, order, writ,
injunction or decree of any court or governmental authority or any material
agreement to which the Company or any Subsidiary is a party or by which it is
bound or to which it is subject, except for such noncompliance or defaults
referred to in this clause (ii) which, individually or in the aggregate, could
not reasonably be expected to have a Material Adverse Effect.
Section 6.08 Purpose of Loans. Neither the Company nor any
Subsidiary is engaged principally, or as one of its important activities, in the
business of extending credit for the purpose of purchasing or carrying Margin
Stock. This Agreement and the transactions contemplated hereby comply in all
respects with Regulations U, T and X of the Board of Governors of the Federal
Reserve System. Neither the Company nor any agent acting on its behalf has taken
any action which might cause this Agreement to violate Regulations U, T or X or
to violate the Securities Exchange Act of 1934, in each case as in effect now or
as the same may hereafter be in effect on the date of any Loan.
Section 6.09 Authority; Validity; Enforceability. The Company has
the corporate power and authority to make and carry out this Agreement and the
transactions contemplated herein, to make the borrowings provided for herein and
to perform its obligations hereunder; and all such action has been duly
authorized by all necessary corporate proceedings on its part. This Agreement
has been duly and validly executed and delivered by the Company and constitutes
a valid and legally binding agreement of the Company, enforceable in accordance
with its terms, except as enforcement may be limited by bankruptcy, insolvency
or other laws of general application relating to or affecting the enforcement of
creditors' rights and general principles of equity.
Section 6.10 Consents or Approvals. No order, consent, approval,
license, authorization or validation of any governmental authority and no
registration or filing with or notice to
27
any governmental authority is necessary to authorize or permit, or is required
in connection with, the execution and delivery of this Agreement, the completion
of the Tender Offer or the Merger (other than those which have been obtained and
are in full force and effect and those the absence of which could not reasonably
be expected to have a Material Adverse Effect), the making of borrowings
pursuant hereto or the performance of the obligations of the Company hereunder.
Section 6.11 Compliance with Law. Neither the Company nor any of its
Subsidiaries is in violation of any Federal, state or local laws or orders
affecting the Company or any Subsidiary or any of their businesses and
operations which taken alone or in the aggregate, could reasonably be expected
to have a Material Adverse Effect. Neither the Company nor any Subsidiary has
failed to obtain any license, permit, franchise, consent or authorization of any
governmental authority necessary to the completion of the Tender Offer or the
Merger, the ownership of its properties or the operation of its business, which
failure could reasonably be expected to have a Material Adverse Effect.
Section 6.12 ERISA. The Company and its Subsidiaries are in
compliance in all material respects with the applicable provisions of ERISA.
Neither the Company nor any Subsidiary, taken individually or in the aggregate,
is obligated to pay any material accumulated funding deficiency within the
meaning of ERISA or Section 4971 of the Internal Revenue Code of 1986, as
amended, or is obligated to pay any material liability to the Pension Benefit
Guaranty Corporation established under ERISA, or any successor thereto under
ERISA (the "PBGC") (other than the payment of premiums to the PBGC as required
by ERISA), in connection with any Plan.
Section 6.13 Investment Company Act. Neither the Company nor any
Subsidiary (i) is an investment company as that term is defined in the
Investment Company Act of 1940, as amended, (ii) directly or indirectly controls
or is controlled by a company which is an investment company as that term is
defined in the Investment Company Act of 1940, as amended, or (iii) is otherwise
subject to regulation under the Investment Company Act of 1940, as amended.
Section 6.14 Disclosure. All material information furnished by or on
behalf of the Company in writing to the Administrative Agent or any Lender
pursuant to the terms of this Agreement after the date hereof and concerning the
historical operations of the Company, will not, when made, include any untrue
statement of a material fact or omit to state any material fact necessary to
make the statements therein, in light of the circumstances under which they are
made, not materially misleading.
Section 6.15 Material Franchise Agreements. The Franchise Agreements
in effect as of the date hereof are described on Exhibit 6.15 attached hereto.
With respect to the Material Franchise Agreements, except as set forth on
Exhibit 6.15 hereto:
(a) the Material Franchise Agreements are legal, valid and binding
agreements of the Company or a Subsidiary of the Company and to the
Company's knowledge, each other party thereto and are in full force and
effect, except to the extent that certain Material Franchise Agreements
may have expired in accordance with their terms as of the date this
representation and warranty is made or deemed made;
(b) neither the Company nor any Subsidiary of the Company is
materially in default or breach of (with or without the giving of notice
or passage of time, and no franchisor has asserted in writing that the
Company or a Subsidiary of the Company is materially in default or breach
of (with or without the giving of notice or passage of time)), the
Material Franchise Agreements;
28
(c) to the Company's knowledge, the other parties to the Material
Franchise Agreements are not materially in violation thereof, and
(d) neither the Company nor any Subsidiary of the Company has
waived any rights under the Material Franchise Agreements where such
waiver would have a material adverse effect on the business, properties or
financial condition of the Company and its Restricted Subsidiaries on a
consolidated basis.
Section 6.16 Quality of CATV Systems. The materials and workmanship
used in the construction and operation of the CATV Systems are of sufficient
quality to conform in all material respects with applicable standards and
regulations of the FCC or any other appropriate governmental or regulatory
authority.
ARTICLE VII.
CONDITIONS
Section 7.01 Conditions Precedent to the Initial Extension of
Credit. The obligation of the Lenders to fund the initial Borrowing is subject
to satisfaction of the following conditions on or before the Closing Date:
(a) The Administrative Agent shall have received on behalf of the
Lenders from Counsel for the Company their opinion in the form attached
hereto as Exhibit 7.01(a), with such changes therein as may be agreed upon
by the Company and the Administrative Agent.
(b) The Administrative Agent shall have received on behalf of the
Lenders an Officer's Certificate substantially in the form attached hereto
as Exhibit 7.01(b).
(c) The Administrative Agent shall have received all fees and
other amounts payable in connection with this Agreement on or prior to the
date hereof, including, to the extent invoiced, reimbursement or payment
of all out-of-pocket expenses required to be reimbursed or paid by the
Company hereunder.
(d) The Existing Credit Agreements shall have been amended and
restated and the Additional Credit Agreements shall have been executed and
delivered by the parties thereto, in each case on substantially the terms
of the proposed definitive documentation therefor delivered to the
Administrative Agent prior to the date of this Agreement, and the
Administrative Agent shall have received such confirmation as may be
satisfactory to it that loans will be funded under any or all of the
Existing Credit Agreements and the Additional Credit Agreements on the
Closing Date in an aggregate amount that, when added to the Loans
requested by the Company to be funded under this Agreement on the Closing
Date, is equal to the aggregate funding for Acquisition Payments requested
by the Company and for Acquisition Payments (as defined under the credit
agreement described in clause (a) of the definition of "Additional Credit
Agreements") requested by Xxx Enterprises, Inc. as of the Closing Date.
(e) The Company shall have delivered to the Administrative Agent
and each Lender such other documentation as the Administrative Agent may
reasonably request.
Following the satisfaction of the conditions set forth in this
Section 7.01, the Administrative Agent shall inform the Company and the Lenders
in writing thereof.
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Section 7.02 Conditions Precedent to Each Extension of Credit. The
obligation of the Lenders to fund each Borrowing (including, without limitation,
the initial Borrowings) is subject to satisfaction of the following additional
conditions:
(a) The Administrative Agent shall have received by telecopy or
otherwise the Notice of Borrowing required by Section 2.01(c).
(b) After giving effect to such extension of credit, and to the
application of the proceeds (if any) thereof, the representations and
warranties contained in Article VI, other than the representations and
warranties made by the Company in the last sentence of Section 6.02 and
Sections 6.03 and 6.04, shall be true in all material respects on and as
of the particular date of extension of credit as though made on and as of
such date (except, in the case of any exhibit referred to in Article VI,
to the extent such exhibit expressly relates to a prior date) and each
such extension of credit shall be deemed to constitute a representation
and warranty by the Company on the applicable date (except, in the case of
any exhibit referred to in Article VI, to the extent such exhibit
expressly relates to an earlier date) as to the matters set forth in
Article VI (other than the representations and warranties made by the
Company in the last sentence of Section 6.02 and in Sections 6.03 and
6.04).
(c) Except as otherwise set forth therein, or in certificates
accompanying such financial statements, the most recent financial
statements delivered to the Lenders pursuant to Section 8.02 fairly
present in all material respects the financial condition of the Company
and its Subsidiaries on a consolidated basis and the results of its and
their operations as at the dates and for the periods indicated. Each such
extension of credit shall be deemed to constitute a representation and
warranty by the Company on the applicable date to such effect.
(d) No Default shall have occurred and be continuing or shall
occur after giving effect to such extension of credit and the application
of the proceeds (if any) thereof, and each such extension of credit shall
be deemed to constitute a representation and warranty by the Company on
the applicable date to such effect.
ARTICLE VIII.
AFFIRMATIVE COVENANTS
The Company covenants and agrees that, so long as the Company may
borrow hereunder and until payment in full of the Loans, the Company will:
Section 8.01 Certain Financial Covenants.
Maintain at all times:
(a) a Leverage Ratio of not more than (i) 5.5 to 1.0 prior to
December 31, 2005 and (ii) 5.0 to 1.0, on December 31, 2005 and thereafter
and
(b) a ratio of Consolidated Operating Cash Flow to Consolidated
Interest Expense of not less than 2.0 to 1.0.
30
Section 8.02 Financial Statements and Information. Deliver to each
of the Lenders (either in hard copy or electronically):
(a) as soon as available, and in any event within 90 days, after
the end of each fiscal year (i) a copy of the consolidated annual audited
financial statements of the Company and its Subsidiaries for such fiscal
year containing a balance sheet, an income statement, a statement of
shareholders' equity and a consolidated statement of cash flows, all in
reasonable detail, together with the unqualified opinion of Deloitte &
Touche or another independent certified public accountant of recognized
national standing, that such statements have been prepared in accordance
with GAAP, consistently applied, except as may be explained in such
opinion, and fairly present in all material respects the financial
condition of the Company and its Subsidiaries on a consolidated basis and
the results of its and their operations as at the dates and for the
periods indicated and (ii) a copy of the reconciliation sheet, certified
by a financial officer of the Company, setting forth the adjustments
required to the consolidated audited financial statements of the Company
and its Subsidiaries referred to above in this paragraph (a) in order to
arrive at the consolidated financial statements of the Company and its
Restricted Subsidiaries;
(b) as soon as available, and in any event within 60 days, after
the end of each of the first three quarterly accounting periods in each
fiscal year (i) a copy of the consolidated unaudited financial statements
of the Company and its Subsidiaries as at the end of such quarter and for
the period then ended, containing a balance sheet, an income statement, a
statement of shareholders' equity and a consolidated statement of cash
flows, all in reasonable detail and certified by a financial officer of
the Company to have been prepared in accordance with GAAP, consistently
applied, except as may be explained in such certificate and except, in the
case of interim statements, for year end audit adjustments and the absence
of footnotes, and as fairly presenting in all material respects the
financial condition of the Company and its Subsidiaries on a consolidated
basis and the results of its and their operations as at the dates and for
the periods indicated and (ii) a copy of the reconciliation sheet,
certified by the Company, setting forth the adjustments required to the
consolidated quarterly financial statements of the Company and its
Subsidiaries referred to above in this paragraph (b) in order to arrive at
the consolidated financial statements of the Company and its Restricted
Subsidiaries;
(c) promptly after the filing thereof, copies of all statements
and reports filed with the Securities and Exchange Commission, other than
Form S-8 registration statements and other reports relating to employee
benefit plans, supplements to registration statements relating solely to
the pricing of securities offerings for which registration statements were
previously filed and Forms D;
(d) promptly, and in any case within five Business Days, after any
officer of the Company obtains knowledge of an Event of Default or
Default, an Officer's Certificate specifying the nature of such Event of
Default or Default, the period of existence thereof, and what action the
Company has taken and proposes to take with respect thereto;
(e) promptly upon the Company's or any Subsidiary's receipt
thereof, copies of all notices received from the FCC regarding the
termination, cancellation, revocation or taking of any other materially
adverse action with respect to any Material FCC Licenses;
(f) promptly upon the Company's or any Subsidiary's receipt
thereof, copies of any notice received from any franchisors regarding the
termination, cancellation or revocation of Franchise Agreements in
connection with CATV Systems constituting 20% or more at any time of
aggregate Basic Subscribers of the Company and its Subsidiaries;
31
(g) together with the delivery of the financial statements
required under clauses (a) and (b) of this Section 8.02, but only if such
information is not otherwise then publicly available, the Company shall
deliver to the Administrative Agent a report setting forth with respect to
the Company and its Subsidiaries (i) the number of Homes Passed by cable,
(ii) the number of Basic Subscribers, and (iii) the number of Pay Units,
in each case as of the end of the preceding fiscal quarter or fiscal year,
as the case may be; and
(h) promptly after request, such additional financial or other
information as the Administrative Agent or any Lender acting through the
Administrative Agent may reasonably request from time to time.
All financial statements specified in clauses (a) and (b) above
shall be furnished with comparative consolidated figures for the corresponding
period in the preceding year. Together with each delivery of financial
statements required by clauses (a) and (b) above, the Company will deliver to
each Lender (i) such schedules, computations and other information as may be
required to demonstrate that the Company is in compliance with its covenants in
Sections 8.01, 9.01(i), 9.03, 9.05 and 9.06 or reflecting any noncompliance
therewith as at the applicable date, and (ii) an Officer's Certificate stating
that, to the knowledge of such officer, there exists no Default or Event of
Default or if, to the knowledge of such officer any such Default or Event of
Default exists, stating the nature thereof, the period of existence thereof, and
what action the Company has taken and proposes to take with respect thereto.
Each Lender is authorized to deliver a copy of any financial statement delivered
to it to any regulatory body having jurisdiction over it and to any other Person
as may be required by applicable law, rules and regulations.
Financial statements required to be delivered pursuant to Section
8.02(a)(i) or (b)(i) or statements and reports required to be delivered pursuant
to Section 8.02(c) (to the extent any such documents are included in materials
otherwise filed with the SEC) shall be deemed to have been delivered on the date
on which notice is received by the Administrative Agent that such information
has been posted on the Company's website on the Internet at xxx.xxx.xxx, at
xxx.xxx/xxxxx/xxxxxxxxxx/xxxxxxxx.xxx or at another website identified in such
notice and accessible by the Lenders without charge (except in the case of
statements of beneficial ownership of securities on Form 3, 4, or 5 which shall
be deemed to have been delivered when so posted regardless of whether such
notice is received). The Administrative Agent shall have no obligation to
request the delivery or to maintain copies of the documents referred to above,
and each Lender shall be solely responsible for requesting delivery to it or
maintaining its copies of such documents.
Section 8.03 Existence; Laws; Obligations. Maintain its corporate
existence, comply and cause its Subsidiaries to comply, in all respects material
to the financial condition, business and properties of the Company and its
Restricted Subsidiaries on a consolidated basis, with all applicable laws and
regulations and pay and cause its Subsidiaries to pay all Taxes, assessments,
governmental charges and other obligations which if unpaid might become a Lien
(other than a Permitted Lien) against the Property of the Company or a
Restricted Subsidiary, except obligations being contested in good faith by
appropriate proceedings.
Section 8.04 Notice of Litigation and Other Matters. Promptly notify
the Administrative Agent in writing of (i) any action, suit or proceeding
pending or to the knowledge of the Company threatened, before any governmental
authority (including, without limitation, any bankruptcy or similar proceeding
by or against the Company or any Subsidiary) which, in the view of the Company,
could reasonably be expected to have a Material Adverse Effect, (ii) the failure
of any Unrestricted Subsidiary to pay when due (after giving effect to any grace
period permitted from time to time) any Debt of such Unrestricted Subsidiary,
the outstanding amount of which exceeds, singularly or in the aggregate,
$50,000,000, or the holder of such Debt declares, or may declare, such Debt due
prior to its stated
32
maturity because of the occurrence of a default or other event thereunder or
with respect thereto, if such failure, declaration or right to declare could
reasonably be expected to have a Material Adverse Effect, (iii) any revocation,
suspension or expiration (other than expiration at maturity in accordance with
their terms) of FCC licenses or franchises which are material to the operations
of the Company and the Restricted Subsidiaries on a consolidated basis (the
"Material FCC Licenses"), (iv) the designation by the Company of a Subsidiary as
an Unrestricted Subsidiary pursuant to the terms hereof, which notice shall (A)
set forth the calculations evidencing compliance with Section 8.01 after giving
effect to such designation, determined in accordance with the most recent
financial statements delivered to the Lenders pursuant to Section 6.02 or
Section 8.02, as the case may be, and (B) be deemed to be a representation and
warranty of the Company that at the time of such designation and after giving
effect thereto, no Default or Event of Default shall have occurred and be
continuing. Promptly after the receipt by the Administrative Agent of any notice
provided for in this Section 8.04, the Administrative Agent will provide the
Lenders with a copy of such notice.
Section 8.05 Books and Records. Maintain, and cause its Subsidiaries
to maintain, proper books of record and account in accordance with GAAP and in
accordance, in all material respects, with applicable corporate, securities and
financial reporting laws.
Section 8.06 Inspection of Property and Records. Permit any Person
designated in writing by the Administrative Agent or any Lender acting through
the Administrative Agent (i) to visit and inspect any of the properties of the
Company and any Restricted Subsidiary and discuss its and their respective
affairs and finances with its and their respective principal officers and to
inspect any of the corporate books and financial records of the Company and any
Restricted Subsidiary and (ii) from and after the occurrence of an Event of
Default, to make copies of and abstracts from the books and records of account
of the Company and its Restricted Subsidiaries, in each case all upon reasonable
prior notice and at such times as the Administrative Agent or any Lender acting
through the Administrative Agent may reasonably request. Notwithstanding Section
13.01, but without prejudice to any other provision contained herein, unless any
such visit or inspection is conducted after the occurrence and during the
continuance of a Default or an Event of Default, the Company shall not be
required to pay any costs or expenses incurred by the Administrative Agent, any
Lender or any other Person in connection with any such visit or inspection.
Section 8.07 Maintenance of Property; Insurance. Cause its Property
and the Property of its Subsidiaries to be maintained, preserved and protected
and kept in good repair, working order and condition so as not to materially and
adversely affect the business carried on in connection therewith and maintain,
and cause its Subsidiaries to maintain, insurance with responsible companies in
such amounts and against such risks as is reasonably deemed appropriate by the
Company.
Section 8.08 ERISA. Comply in all material respects with the
applicable provisions of ERISA and furnish to the Administrative Agent (i) as
soon as possible, and in any event within 30 days after the Company or a duly
appointed administrator of a Plan knows that any "reportable event" (as such
term is defined in Section 4043 of ERISA), other than a reportable event for
which the notice requirement has been waived by the PBGC under Sections 4043.22,
4043.23, 4043.27 through 4043.32 (inclusive) and 4043.34 of the PBGC
regulations) with respect to any Plan has occurred, a statement of the chief
financial officer of the Company setting forth details as to such reportable
event and the action which the Company proposes to take with respect thereto,
together with a copy of any notice of such reportable event given to the PBGC
(provided that if such notice has not been submitted to the PBGC as of the date
of the required notice to the Administrative Agent under this Section 8.08, a
copy of such notice to the PBGC shall be provided to the Administrative Agent as
of the date provided to the PBGC) and (ii) promptly after receipt thereof, a
copy of any notice the Company, any Subsidiary or any member of the controlled
group of corporations may receive from the PBGC relating to the intention of the
PBGC to terminate any Plan.
33
Section 8.09 Maintenance of Business Lines. Maintain and cause its
Restricted Subsidiaries to maintain lines of business in broadband
communications and related lines of business that are similar in scope to the
existing business lines and operations of the Company and its Restricted
Subsidiaries.
Section 8.10 Compliance with Material Franchise Agreements and FCC
Licenses. The Company will maintain, and will cause each Subsidiary to maintain,
in full force and effect at all times during the term of this Agreement, and
will materially comply with, and will cause each Subsidiary to materially comply
with, the terms and provisions of, the Material Franchise Agreements and the
Material FCC Licenses.
ARTICLE IX.
NEGATIVE COVENANTS
The Company covenants and agrees that, so long as the Company may
borrow hereunder and until payment in full of the Loans:
Section 9.01 Liens. The Company will not and will not permit any
Restricted Subsidiary to create or permit to exist any Lien upon any of its
assets, whether now owned or hereafter acquired, or assign or otherwise convey
any right to receive income, except
(a) Liens for Taxes, assessments, governmental charges and other
similar obligations not yet due or which are being contested in good faith
by appropriate proceedings;
(b) other Liens incidental to the conduct of its business or the
ownership of its assets which were not incurred in connection with the
borrowing of money, and which do not in the aggregate materially detract
from the value of its assets or materially impair the use thereof in the
operation of its business;
(c) Liens on assets of a Restricted Subsidiary to secure
obligations of such Restricted Subsidiary to the Company or a Wholly Owned
Restricted Subsidiary;
(d) Liens existing on the date hereof which are (i) described in
Exhibit 9.01(d) attached hereto, (ii) securing Debt reflected in the
consolidated financial statements of the Company referred to in Section
6.02 or (iii) Liens on Property that were existing at the time of the
acquisition thereof by the Company or any Restricted Subsidiary or placed
thereon to secure a portion of the purchase price thereof;
(e) Liens on Property acquired after the date hereof, existing at
the time of acquisition thereof by the Company or any Restricted
Subsidiary or placed thereon within one year of such acquisition to secure
a portion of the purchase price thereof; provided that no such Lien may
encumber or cover any other Property of such Restricted Subsidiary, of the
Company or of any other Restricted Subsidiary;
(f) Liens on the stock of Unrestricted Subsidiaries;
(g) to the extent not covered by clause (b) above, Liens of
attachment, judgments or awards in respect of which adequate reserves have
been established in accordance with GAAP and which do not constitute an
Event of Default;
34
(h) Liens securing interest rate and currency hedging arrangements
in a notional amount which, when taken together with the notional amounts
of all other outstanding hedging arrangements secured in accordance with
this clause (h), does not at the time incurred exceed $100,000,000, so
long as (i) the related Debt is permitted to be incurred in accordance
with the terms hereof and (ii) such arrangements are entered into by the
Company or any Subsidiary solely for risk management purposes;
(i) other Liens on Property of the Company and its Restricted
Subsidiaries having an aggregate value of not more than 15% of
Consolidated Net Worth as of the end of each fiscal quarter; and
(j) Liens on the stock of the Company purchased by the Company in
the Tender Offer or otherwise acquired by it.
Section 9.02 Merger; Consolidation; Disposition of Assets. The
Company will not merge or consolidate with any other corporation or sell or
dispose of all or substantially all of its assets unless the Company shall be
the continuing or surviving corporation and both before and after giving effect
to such merger or consolidation no Default or Event of Default shall exist. The
Company will not and will not permit any Restricted Subsidiary to sell, lease or
transfer or otherwise dispose of (whether in one transaction or a series of
transactions), its assets that are material to the business, operations or
financial condition of the Company and its Restricted Subsidiaries, taken as a
whole, other than inventory in the ordinary course of business and stock of
Unrestricted Subsidiaries, unless both before and after giving effect to such
disposition no Default or Event of Default shall exist.
Section 9.03 Restricted Payments. The Company will not, and will not
permit any Restricted Subsidiary to, pay or declare any dividend (exclusive of
stock dividends and cash dividends paid by the Subsidiaries to the Company or to
Restricted Subsidiaries) or redeem or acquire, directly or indirectly, any of
the stock of the Company or such Subsidiary or any warrant or option to purchase
any of such stock (any of the foregoing, a "Restricted Payment") in excess of
$250,000,000 in aggregate Restricted Payments in any calendar year, if (a) the
Leverage Ratio would have exceeded 4.5 to 1.0 as of the end of the four fiscal
quarter period most recently ended on a pro forma basis as if such Restricted
Payment had occurred and all Consolidated Debt incurred in connection therewith
had been incurred on the last day of such four fiscal quarter period, or (b) the
Company is not in compliance with its obligations under clauses (a) and (b) (and
the related provisions of the second to last paragraph) of Section 8.02.
Notwithstanding the foregoing, there shall not be included in the foregoing
limitations or computations (A) exchanges of stock for other stock, (B)
retirements of stock out of the proceeds of the sale of other stock after the
date hereof, (C) net acquisitions after giving effect to stock issuances to
employees by the Company of its stock from certain employees of the Company
pursuant to the Company's stock repurchase agreements in an aggregate amount not
to exceed $10,000,000 in any one calendar year, (D) purchases or other
acquisitions in arm's-length transactions of the capital stock of any Subsidiary
not Wholly Owned by the Company from stockholders of such Subsidiary that are
not members of the Cox Family, or (E) Acquisition Payments.
Section 9.04 Limitation on Margin Stock. The Company will not and
will not permit any Subsidiary to own or acquire Margin Stock such that at any
time any extension of credit under this Agreement shall be in violation of
Regulation U of the Federal Reserve System.
Section 9.05 Loans and Advances to and Investments in Unrestricted
Subsidiaries. The Company will not and will not permit any Restricted Subsidiary
to make any loan or advance to, or any capital contribution to or other
investment in (any of the foregoing, an "Investment") any Unrestricted
Subsidiary, if at the time of such Investment, and after giving effect thereto,
(a) the Leverage Ratio would
35
have exceeded 4.5 to 1.0 as of the end of the four fiscal quarter period most
recently ended on a pro forma basis as if such Investment had occurred on the
first day of such four fiscal quarter period, unless such Investment is on terms
which are no less favorable to the Company or Restricted Subsidiary, as the case
may be, than would obtain in a comparable arm's-length transaction with an
unaffiliated Person, or (b) a Default or Event of Default shall have occurred
and be continuing; provided that so long as no Event of Default shall have
occurred and be continuing, the Company and its Restricted Subsidiaries may (i)
make Investments in an aggregate amount not to exceed $250,000,000 per calendar
year, and (ii) continue to make Investments consisting of obligations of
Unrestricted Subsidiaries to the Company and its Restricted Subsidiaries arising
in the ordinary course of business as a result of short-term advances and/or
pooling of cash in connection with cash management programs conducted by
Unrestricted Subsidiaries on behalf of the Company and its Restricted
Subsidiaries.
Section 9.06 Subsidiary Debt. The Company will not permit any
Restricted Subsidiary to create, incur or suffer to exist any Debt except:
(a) Debt outstanding on the date hereof which is reflected in the
consolidated financial statements of the Company referred to in Section
6.02; and
(b) additional Debt in an amount which, when taken together with
all other outstanding Debt incurred in reliance on this clause (b) and,
without duplication, all outstanding Debt of the Company and its
Restricted Subsidiaries secured by Liens incurred in reliance on Section
9.01(i), does not at the time it is incurred exceed 15% of Consolidated
Net Worth.
Section 9.07 Transactions with Affiliates. The Company will not, and
will not permit any Restricted Subsidiary to, directly or indirectly enter into
any transaction or series of transactions, whether or not in the ordinary course
of business, with any Affiliate of the Company other than (a) with the Company
or one or more Restricted Subsidiaries, (b) with one or more Unrestricted
Subsidiaries that are otherwise permitted by Section 9.05, (c) transactions on
terms and conditions substantially as favorable to the Company or such
Restricted Subsidiary, taken as a whole, as would be obtainable by the Company
or such Restricted Subsidiary at the time in comparable arm's length
transactions with Persons other than Affiliates of the Company, (d) transactions
involving the Company and its Restricted Subsidiaries exclusively, (e) any
executive or employee incentive or compensation plan, contract or other
arrangement (including any loans or extensions of credit in connection
therewith) if such plan, contract or arrangement is approved either by the
stockholders of the Company (in accordance with such voting requirements as may
be applicable) or by the Board of Directors (or similar governing body) of the
Company (or any committee thereof) by unanimous consent or at a meeting at which
a quorum of disinterested directors is present or by any person designated by
such Board of Directors (or similar governing body) or committee thereof by
unanimous consent or at such a meeting to approve such agreements on behalf of
the Company, (f) an Acquisition Intercompany Loan, (g) the Merger and (h) any
tax sharing agreement with the Company's Affiliates; provided that any such tax
sharing agreement shall apportion tax liabilities between or among the parties
based on factors customarily used in similar agreements to determine such
apportionment.
ARTICLE X.
EVENTS OF DEFAULT
If any of the following events shall occur and be continuing, then
the Administrative Agent may, with the consent of the Majority Lenders, and
shall, upon the direction of the Majority Lenders, upon notice to the Company
(i) terminate the Commitments and declare all Loans then outstanding hereunder
(together with all interest accrued and unpaid thereon and all other amounts
owing
36
or payable hereunder) to be immediately due and payable, and thereupon the
Commitments shall immediately be terminated and all Loans (together with such
interest and other amounts) shall become and be immediately due and payable
without presentment, demand, protest, notice of intent to accelerate or other
notice of any kind to the Company, all of which are hereby expressly waived;
provided that, in the case of an event described in Sections 10.09 through
10.12, inclusive, with respect to the Company, all Loans then outstanding
hereunder (together with such interest and other amounts) shall automatically
become immediately due and payable without any required action or notice by the
Administrative Agent or Lenders and without presentment, demand, protest, notice
of intent to accelerate, notice of acceleration or other notice of any kind to
the Company, all of which are hereby expressly waived:
Section 10.01 Failure to Pay Principal or Interest. The Company does
not pay or prepay any principal of any Loan within five days after the date due
or the Company does not pay or prepay any interest on any Loan (i) on or before
five days after actual receipt of oral or written notice from the Administrative
Agent as to the amount of interest due, but in no event shall the Company be
required to pay or prepay any such interest prior to the date due, or (ii)
within 10 days after the due date thereof if no notice is actually received by
the Company from the Administrative Agent with respect to the amount of interest
due; or
Section 10.02 Failure to Pay Other Sums. The Company does not pay
any sums (other than payments of principal and interest on the Loans or interest
thereon, in each case covered by Section 10.01) payable to the Administrative
Agent or any Lender under the terms of this Agreement (including, without
limitation, amounts due and payable under Section 3.02(a)) within 10 days after
the date due (or, in the case of the Commitment Fees payable to the
Administrative Agent for the account of each Lender pursuant to Section 4.03, 10
days after written notice of nonpayment has been received by the Company from
the Administrative Agent or any Lender); or
Section 10.03 Failure to Pay or Acceleration of Other Debt. (i) The
Company or any Restricted Subsidiary does not pay when due any other Debt of the
Company or any Restricted Subsidiary, the outstanding amount of which exceeds,
singularly or in the aggregate, $50,000,000, in respect of which any applicable
grace period has expired, provided that a default under other Debt of the
Company or any Restricted Subsidiary as described in this clause (i) shall not
constitute an Event of Default under this Agreement if such default is the
result of a failure to pay caused by an error or omission of an administrative
or operational nature and funds were available to enable the Company or such
Restricted Subsidiary to make the payment when due, unless either (x) the
Company or such Restricted Subsidiary is aware of such default and, if no grace
period of at least 3 days is provided for under the other Debt, 3 days have
passed since the Company or Restricted Subsidiary became aware of such default
without the curing of the default, or (y) such other Debt has become due prior
to the maturity thereof; and provided further that, during the continuance of
any applicable grace period or such 3 day period, any such failure to pay such
other Debt when due shall constitute a Default (but not an Event of Default)
hereunder; or (ii) the Company or any Restricted Subsidiary shall otherwise
default under any other Debt of the Company or any Restricted Subsidiary, the
outstanding amount of which exceeds, singularly or in the aggregate,
$50,000,000, in respect of which any applicable notice has been given and such
Debt has been declared due prior to any maturity thereof; provided that during
the continuance of any applicable grace period with respect thereto, such event
shall constitute a Default (but not an Event of Default) hereunder; or
Section 10.04 Misrepresentation or Breach of Warranty. (i) Any
representation or warranty made or deemed made by the Company herein or (ii) any
other written or formally presented information provided by the Company pursuant
to this Agreement after the date hereof concerning the historical operations of
the Company, when made or deemed made, shall be incorrect in any material
respect; or
37
Section 10.05 Violation of Certain Covenants. The Company violates
any covenant, agreement or condition contained in Article V or Section 8.01 or
Article IX; or
Section 10.06 Violation of Other Covenants, etc. The Company
violates any other covenant, agreement or condition contained herein and such
violation shall not have been remedied within 30 days after written notice has
been received by the Company from the Administrative Agent or any Lender; or
Section 10.07 Undischarged Judgment. Final judgment for the payment
of money in excess of $50,000,000 (excluding any amount as to which an insurer
having an A.M. Best rating of "A" or better and being in a financial size
category of XII or better (as such category is defined as of the date hereof)
has acknowledged liability) shall be rendered against the Company or any
Restricted Subsidiary and the same shall remain undischarged for a period of 30
days during which period execution shall not be effectively stayed; or
Section 10.08 Change of Control. The Xxx Family shall cease at any
time to Control the Company; or
Section 10.09 Assignment for Benefit of Creditors or Nonpayment of
Debts. The Company or any Restricted Subsidiary makes an assignment for the
benefit of creditors or is generally not paying its debts as such debts become
due; or
Section 10.10 Voluntary Bankruptcy. The Company or any Restricted
Subsidiary petitions or applies to any tribunal for or consents to the
appointment of, or taking possession by, a trustee, receiver, custodian,
liquidator or similar official of the Company or any Restricted Subsidiary, or
of any substantial part of the assets of the Company or any Restricted
Subsidiary, or commences any case or proceedings relating to the Company or any
Restricted Subsidiary under any bankruptcy, reorganization, arrangement,
insolvency, readjustment of debt, dissolution or other liquidation law of any
jurisdiction; or
Section 10.11 Involuntary Bankruptcy. Any such petition or
application is filed, or any such case or proceedings are commenced, against the
Company or any Restricted Subsidiary, and (a) the Company or such Restricted
Subsidiary by any act indicates its approval thereof, consent thereto or
acquiescence therein, or (b) an order for relief is entered in an involuntary
case under the bankruptcy law of the United States of America, or (c) an order,
judgment or decree is entered appointing such trustee, receiver, custodian,
liquidator or similar official or adjudicating the Company or any Restricted
Subsidiary bankrupt or insolvent, or approving the petition in any such case or
proceedings, or (d) such petition, application, case or proceeding continues for
60 days without having been dismissed or discharged; or
Section 10.12 Dissolution. Any order is entered in any proceeding
against the Company or any Restricted Subsidiary decreeing the dissolution or
split-up of the Company or such Restricted Subsidiary, and such order remains
unstayed and in effect for 60 days.
ARTICLE XI.
MODIFICATIONS, AMENDMENTS OR WAIVERS
Any of the provisions of this Agreement may from time to time be
modified or amended by, or waived with, the written consent of the Majority
Lenders; provided that no such waiver, modification or amendment may be made
which will:
38
(a) increase the amount or extend the term of the Commitment of
any Lender hereunder, without the prior written consent of such Lender; or
(b) extend the time for payment of principal of or interest on any
Loan or interest thereon, or the time for payment of any facility fee, or
waive an Event of Default with respect to payment of any principal,
interest or fee, or reduce the principal amount of or the rate of interest
on any Loan, or otherwise affect the terms of payment of the principal of
or interest (other than to increase the interest rate or the Commitment
Fees, which may be effected with the written consent of the Majority
Lenders) on any Loan, or reduce the amount of the Commitment Fees, or
otherwise affect the terms of payment of any such fee, without the prior
written consent of the affected Lender; or
(c) change the definition of Majority Lenders without the prior
written consent of all the Lenders; or
(d) waive, modify or amend the provisions of Article V or this
Article XI or any other provision of this Agreement that requires the
consent of all of the Lenders without the prior written consent of all the
Lenders; or
(e) waive, modify or amend the provisions of Article XII or amend,
modify or otherwise affect the rights or duties of the Administrative
Agent, without the prior written consent of the Administrative Agent.
No failure or delay on the part of the Administrative Agent or any
Lender in exercising any right, power or remedy hereunder shall operate as a
waiver thereof, nor shall any single or partial exercise of any such power,
right or remedy or any abandonment or discontinuance of steps to enforce such a
power, right or remedy preclude any other or further exercise thereof or the
exercise of any other power, right or remedy hereunder. The remedies provided
for in this Agreement are cumulative and not exclusive of any remedies provided
by law or in equity. No modification or waiver of any provision of this
Agreement nor consent to any departure by the Company therefrom shall in any
event be effective unless the same shall be in writing, and then such waiver or
consent shall be effective only in the specific instance and for the purpose for
which given. No notice to or demand on the Company in any case shall entitle the
Company to any other or further notice or demand in similar or other
circumstances.
ARTICLE XII.
THE ADMINISTRATIVE AGENT
Section 12.01 Appointment of Administrative Agent. Each of the
Lenders irrevocably appoints and authorizes the Administrative Agent to act on
its behalf under this Agreement, and to exercise such powers hereunder as are
specifically delegated to or required of the Administrative Agent by the terms
hereof, together with such powers as may be reasonably incidental thereto. As to
any matters not expressly provided for by this Agreement, the Administrative
Agent shall not be required to exercise any discretion or take any action, but
shall be required to act or to refrain from acting (and shall be fully protected
in so acting or refraining from acting) upon the instructions of the Majority
Lenders, and such instructions shall be binding upon all Lenders; provided that
the Administrative Agent shall not be required to take any action which exposes
the Administrative Agent to personal liability or which is contrary to this
Agreement or applicable law.
Section 12.02 Indemnification of Administrative Agent. The
Administrative Agent shall not be required to take any action hereunder or to
prosecute or defend any suit in respect of this
39
Agreement, unless indemnified to its satisfaction by the Lenders against loss,
cost, liability and expense. If any indemnity furnished to the Administrative
Agent shall become impaired, it may call for additional indemnity and cease to
do the acts indemnified against until such additional indemnity is given. In
addition, the Lenders agree to indemnify the Administrative Agent (to the extent
not reimbursed by the Company), ratably according to the respective principal
amounts of the Loans then held by each of them (or if no Loans are at the time
outstanding, ratably according to the respective amount of their Commitments),
from and against any and all liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements of any
kind or nature whatsoever which may be imposed on, incurred by, or asserted
against the Administrative Agent in any way relating to or arising out of this
Agreement, or any action taken or omitted by the Administrative Agent under this
Agreement; provided that no Lender shall be liable for any portion of such
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements resulting from the Administrative Agent's gross
negligence or willful misconduct.
Section 12.03 Limitation of Liability. Neither the Administrative
Agent nor any of its directors, officers, employees, attorneys or agents shall
be liable for any action taken or omitted by it or them hereunder, or in
connection herewith, (i) with the consent or at the request of the Majority
Lenders, or (ii) in the absence of its or their own gross negligence or willful
misconduct. Without limitation of the generality of the foregoing, the
Administrative Agent: (t) except as expressly set forth herein, shall not have
any duty to disclose, and shall not be liable for the failure to disclose, any
information relating to the Company or any of its Subsidiaries that is
communicated to or obtained by the bank serving as Administrative Agent or any
of its Affiliates in any capacity, (u) may treat the payee with respect to any
Loan as the proper payee thereof until the Administrative Agent receives written
notice of the assignment or transfer thereof signed by such payee and in form
satisfactory to the Administrative Agent; (v) may consult with legal counsel
(including Counsel for the Company), independent public accountants and other
experts selected by it and shall not be liable for any action taken or omitted
to be taken in good faith by it in accordance with the advice of such counsel,
accountants or experts; (w) makes no warranty or representation to any Lender
and shall not be responsible to any Lender for any statements, warranties or
representations made in or in connection with this Agreement; (x) shall not have
any duty to ascertain or to inquire as to the performance or observance of any
of the terms, covenants or conditions of this Agreement, or to inspect the
Property (including the books and records) of the Company; (y) shall not be
responsible to any Lender for the due execution, legality, validity,
enforceability and genuineness of this Agreement, or any other instrument or
document furnished pursuant hereto; and (z) shall incur no liability under or in
respect of this Agreement by acting upon any notice or consent (whether oral or
written and whether by telephone, telegram, cable or telex), certificate or
other instrument or writing (which may be by telegram, cable or telex) believed
by it to be genuine and communicated, signed or sent by the proper Person or
Persons.
Section 12.04 Independent Credit Decision. Each Lender agrees that
it has relied solely upon its independent review of the financial statements of
the Company and all other representations and warranties made by the Company
herein or otherwise in making the credit decisions preliminary to entering into
this Agreement and agrees that it will continue to rely solely upon its
independent review of the facts and circumstances of the Company in making
future decisions with respect to this Agreement and the Loans. Each Lender
agrees that it has not relied and will not rely upon the Administrative Agent or
any other Lender respecting the ability of the Company to perform its
obligations pursuant to this Agreement.
Section 12.05 Rights of JPMCB. With respect to its Commitment and
the Loans made by it, JPMCB shall have the same rights and powers under this
Agreement as any other Lender and may exercise the same as though it were not
the Administrative Agent; and the term "Lender" or "Lenders" shall, unless
otherwise expressly indicated, include JPMCB in its individual capacity. JPMCB
40
and its Affiliates may accept deposits from, lend money to, act as trustee under
indentures of, and generally engage in any kind of business with, the Company,
any of the Subsidiaries and any Person or entity who may do business with or own
securities of any of them or of their subsidiaries, all as if JPMCB were not the
Administrative Agent and without any duty to account therefor to the Lenders.
Section 12.06 Successor to the Administrative Agent. The
Administrative Agent may resign at any time as Administrative Agent under this
Agreement, by giving 30 days' prior written notice thereof to the Lenders and
the Company and may be removed as Administrative Agent under this Agreement, at
any time with or without cause by the Company and the Majority Lenders. Upon any
such resignation or removal, the Company (with the consent of the Majority
Lenders, which shall not be unreasonably withheld) shall have the right to
appoint a successor Administrative Agent thereunder. If no successor
Administrative Agent shall have been so appointed by the Company (with the
consent of the Majority Lenders), and shall have accepted such appointment,
within 30 days after the retiring Administrative Agent's giving of notice of
resignation or the Majority Lenders' removal of the retiring Administrative
Agent, then the retiring Administrative Agent may, on behalf of the Lenders,
appoint a successor Administrative Agent, which shall be a commercial bank
organized under the laws of the United States of America or of any State thereof
and having a combined capital and surplus of at least $500,000,000. Upon the
acceptance of any appointment as Administrative Agent under this Agreement by a
successor Administrative Agent, such successor Administrative Agent shall
thereupon succeed to and become vested with all the rights, powers, privileges
and duties of the retiring Administrative Agent, and the retiring Administrative
Agent shall be discharged from its duties and obligations under this Agreement.
After any retiring Administrative Agent's resignation or removal as
Administrative Agent under this Agreement, the provisions of this Article XII
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.
Section 12.07 Other Agents and Sub-Agents. None of the Arrangers or
Syndication Agents shall have any right, power, obligation, liability,
responsibility or duty under this Agreement other than those applicable to all
Lenders as such and the rights herein specifically granted to the Arrangers.
Without limiting the foregoing, none of the Arrangers or Syndication Agents
shall have or be deemed to have any fiduciary relationship with any Lenders.
Each Lender acknowledges that it has not relied, and will not rely, on the
Administrative Agent or any of the Arrangers or Syndication Agents or any
representative, co-agent or sub-agent acting with or for any of them in deciding
to enter into this Agreement or in taking or not taking action hereunder. The
Administrative Agent may perform any and all its duties and exercise its rights
and powers by or through any one or more sub-agents appointed by the
Administrative Agent. The Administrative Agent and any such sub-agent may
perform any and all its duties and exercise its rights and powers through their
respective Related Parties. The exculpatory provisions of the preceding Sections
of this Article XII shall apply to any such sub-agent and to the Related Parties
of the Administrative Agent and any such sub-agent, and shall apply to their
respective activities in connection with the syndication of the credit
facilities provided for herein as well as activities as Administrative Agent.
ARTICLE XIII.
MISCELLANEOUS
Section 13.01 Payment of Expenses. Any provision hereof to the
contrary notwithstanding (other than the last sentence of Section 8.06), and
whether or not the transactions contemplated by this Agreement shall be
consummated, the Company agrees to pay on demand (i) all reasonable costs and
expenses of the Administrative Agent in connection with the preparation,
execution and delivery of this Agreement and all amendments hereto (including,
without limitation, waivers hereunder and workouts with respect to Loans
hereunder), and the other instruments and documents to be
41
delivered hereunder or with respect to any amendment hereto, including, without
limitation, the reasonable fees and out-of-pocket expenses of any counsel for
the Administrative Agent with respect thereto, (ii) all reasonable increases in
costs and expenses of the Administrative Agent and the Lenders or any Lender
(including reasonable counsel fees and expenses, including reasonable allocated
costs of in-house legal counsel to the Administrative Agent or any Lender), if
any, in connection with the administration of this Agreement after the
occurrence of a Default (in the case of the Administrative Agent only) or Event
of Default (in the case of the Administrative Agent and the Lenders or any
Lender) and so long as the same is continuing, and (iii) all reasonable costs
and expenses of the Administrative Agent and the Lenders or any Lender
(including reasonable counsel fees and expenses, including reasonable allocated
costs of in-house legal counsel to the Administrative Agent or any Lender), if
any, in connection with the enforcement of this Agreement and the other
instruments and documents to be delivered hereunder. The obligations of the
Company under this Section 13.01 shall survive the termination of this Agreement
and the payment of the Loans. It is understood that except as set forth in
Section 2.07 the Company shall not be responsible for any costs, fees or
expenses related to any assignment or participation by any Lender of any of its
rights hereunder (including its Commitment or the Loans made by it).
Section 13.02 Notices. The Administrative Agent or any Lender giving
consent or notice to the Company provided for hereunder shall notify each Lender
and the Administrative Agent thereof. In the event that any Lender shall
transfer any Loan in accordance with Section 13.07(c), it shall immediately so
advise the Administrative Agent which shall be entitled to assume conclusively
that no transfer of any Loan has been made by any Lender unless and until the
Administrative Agent receives written notice to the contrary. Except as
otherwise specifically permitted by this Agreement with respect to oral Notices
of Borrowing, notices and other communications provided for herein shall be in
writing (including facsimile or electronic communication) and shall be
delivered, mailed, or transmitted addressed to the addressees set forth on
Exhibit 13.02, attached hereto (or, as to the Company or the Administrative
Agent, at such other address as shall be designated by such party to the other
parties in a written notice to the other parties and, as to each other party, at
such other address as shall be designated by such party in a written notice to
the Company and the Administrative Agent). All notices and other communications
given to any party hereto in accordance with the provisions of this Agreement
shall be deemed to have been given upon receipt. The Administrative Agent and
the Lenders may at any time waive any requirement for notice hereunder.
Section 13.03 Setoff. If one or more Events of Default as defined
herein shall occur and be continuing, any Lender which is owed any obligation
hereunder ("Depositary") shall have the right, in addition to all other rights
and remedies available to it, and is hereby authorized, to the extent permitted
by applicable law, at any time and from time to time, without notice to the
Company (any such notice being hereby expressly waived by the Company), to set
off and apply any and all deposits (general or special, time or demand,
provisional or final) at any time held and other indebtedness (whether or not
then due and payable) at any time owing by the Depositary to or for the credit
or the account of the Company, against any and all of the obligations of the
Company now or hereafter existing under this Agreement, irrespective of whether
or not the Depositary shall have made any demand for satisfaction of such
obligations and although such obligations may be unmatured. Each Depositary
agrees to notify the Company and the Administrative Agent promptly after any
such setoff and application; provided that the failure to give such notice shall
not affect the validity of such setoff and application. The rights of each
Depositary under this Section 13.03 are in addition to other rights and remedies
(including, without limitation, other rights of setoff) which such Depositary
may have hereunder or under any applicable law. Each Depositary agrees that (i)
if it shall exercise any such right of banker's lien, setoff, counterclaim or
similar right pursuant hereto, it will apply the proceeds thereof first to the
payment of Loans outstanding hereunder and (ii) if it shall through the exercise
of a right of banker's lien, setoff, counterclaim or otherwise obtain payment of
a proportion of the Loans held by it in excess of the proportion of the Loans
42
of each of the other Depositaries being paid simultaneously, it shall be deemed
to have simultaneously purchased from each other Depositary a participation in
the Loans owed to such other Depositaries so that the amount of unpaid Loans and
participations therein held by all Depositaries shall be proportionate to the
original principal amount of the Loans held by them; and in each case it shall
promptly remit to each such Depositary the amount of the participation thus
deemed to have been purchased. The Company expressly consents to the foregoing
arrangements, and in furtherance thereof, agrees that at such time as an Event
of Default hereunder has occurred, the Administrative Agent shall provide to
each Lender a schedule setting forth the Commitment of each Lender hereunder to
permit each Lender to correctly determine the portion which its Commitment
hereunder bears to the aggregate of all Commitments hereunder. If all or any
portion of any such excess payment is thereafter recovered from the Depositary
which received the same, the purchase provided for herein shall be deemed to
have been rescinded to the extent of such recovery, without interest.
Section 13.04 Indemnity and Judgments. THE COMPANY AGREES TO
INDEMNIFY EACH OF THE ADMINISTRATIVE AGENT, ARRANGERS, SYNDICATION AGENTS AND
LENDERS AND EACH OF THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, AGENTS,
ATTORNEYS, CONTROLLING PERSONS AND AFFILIATES FROM AND HOLD EACH HARMLESS
AGAINST ANY AND ALL LOSSES, COSTS, LIABILITIES, CLAIMS, DAMAGES AND EXPENSES
INCURRED BY ANY OF THE FOREGOING PERSONS (COLLECTIVELY, THE "INDEMNIFIED
LIABILITIES"), INCLUDING, WITHOUT LIMITATION, ATTORNEYS' FEES, SETTLEMENT COSTS,
COURT COSTS AND OTHER LEGAL EXPENSES, ARISING OUT OF OR BY REASON OF ANY
PARTICIPATION IN, OR ANY ACTION OR OMISSION IN CONNECTION WITH, THIS AGREEMENT
OR ANY LOAN HEREUNDER OR ANY INVESTIGATION, LITIGATION OR OTHER PROCEEDINGS
BROUGHT OR THREATENED RELATING THERETO, OR TO ANY USE OR PROPOSED USE TO BE MADE
BY THE COMPANY OR ANY SUBSIDIARY OF THE LOANS, BUT, IN THE CASE ONLY OF LENDERS
OTHER THAN THE ADMINISTRATIVE AGENT, ARRANGERS AND SYNDICATION AGENTS, ONLY TO
THE EXTENT THAT THE INDEMNIFIED LIABILITIES ARISE OUT OF OR BY REASON OF CLAIMS
MADE BY PERSONS OTHER THAN THE ADMINISTRATIVE AGENT, ARRANGERS, SYNDICATION
AGENTS OR LENDERS; PROVIDED THAT NO SUCH PERSON SHALL BE ENTITLED TO BE
INDEMNIFIED AND HELD HARMLESS AGAINST ANY SUCH INDEMNIFIED LIABILITIES ARISING
OUT OF OR BY REASON OF THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF SUCH
PERSON. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE COMPANY SHALL NOT
ASSERT, AND HEREBY WAIVES, ANY CLAIM AGAINST ANY OF THE LENDERS, ADMINISTRATIVE
AGENT, ARRANGERS AND SYNDICATION AGENTS OR ANY OF THEIR RESPECTIVE DIRECTORS,
OFFICERS, EMPLOYEES, AGENTS, ATTORNEYS, CONTROLLING PERSONS AND AFFILIATES, ON
ANY THEORY OF LIABILITY, FOR SPECIAL, INDIRECT, CONSEQUENTIAL OR PUNITIVE
DAMAGES (AS OPPOSED TO DIRECT OR ACTUAL DAMAGES) (WHETHER OR NOT THE CLAIM
THEREFOR IS BASED ON CONTRACT, TORT OR DUTY IMPOSED BY ANY APPLICABLE LEGAL
REQUIREMENT) ARISING OUT OF, IN CONNECTION WITH, ARISING OUT OF, AS A RESULT OF,
OR IN ANY WAY RELATED TO, THIS AGREEMENT OR ANY AGREEMENT OR INSTRUMENT
CONTEMPLATED HEREBY OR THEREBY OR REFERRED TO HEREIN OR THEREIN, THE
TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY, ANY LOAN OR THE USE OF THE PROCEEDS
THEREOF OR ANY ACT OR OMISSION OR EVENT OCCURRING IN CONNECTION THEREWITH, AND
COMPANY HEREBY WAIVES, RELEASES AND AGREES NOT TO XXX UPON ANY SUCH CLAIM OR ANY
SUCH DAMAGES, WHETHER OR NOT ACCRUED AND WHETHER OR NOT KNOWN OR SUSPECTED TO
EXIST IN ITS FAVOR. THE OBLIGATIONS OF THE COMPANY UNDER THIS SECTION 13.04
SHALL SURVIVE THE TERMINATION OF THIS AGREEMENT AND THE PAYMENT OF THE LOANS.
Section 13.05 Interest. Anything in this Agreement to the contrary
notwithstanding, the Company shall never be required to pay unearned interest on
any Loan and shall never be required to pay interest on any Loan at a rate in
excess of the Highest Lawful Rate, and if the effective rate of interest which
would otherwise be payable under this Agreement would exceed the Highest Lawful
Rate, or if any Lender shall receive any unearned interest or shall receive
monies that are deemed to constitute interest which would increase the effective
rate of interest payable under this Agreement to a rate in excess of the Highest
Lawful Rate, then (i) in lieu of the amount of interest which would otherwise be
payable under this Agreement, the Company shall pay the Highest Lawful Rate, and
(ii) any unearned interest paid by the Company or any interest paid by the
Company in excess of the Highest Lawful Rate shall be credited
43
on the principal of such Loan, and, thereafter, refunded to the Company. It is
further agreed that, without limitation of the foregoing, all calculations of
the rate of interest contracted for, charged or received by any Lender under
this Agreement, that are made for the purpose of determining whether such rate
exceeds the Highest Lawful Rate applicable to such Lender (such Highest Lawful
Rate being such Lender's "Maximum Permissible Rate"), shall be made, to the
extent permitted by usury laws applicable to such Lender (now or hereafter
enacted), by amortizing, prorating and spreading in equal parts during the
period of the full stated term of the Loans all interest at any time contracted
for, charged or received by such Lender in connection therewith. If at any time
and from time to time (y) the amount of interest payable to any Lender on any
date shall be computed at such Lender's Maximum Permissible Rate pursuant to
this Section 13.05 and (z) in respect of any subsequent interest computation
period the amount of interest otherwise payable to such Lender would be less
than the amount of interest payable to such Lender computed at such Lender's
Maximum Permissible Rate, then the amount of interest payable to such Lender in
respect of such subsequent interest computation period shall continue to be
computed at such Lender's Maximum Permissible Rate until the total amount of
interest payable to such Lender shall equal the total amount of interest which
would have been payable to such Lender if the total amount of interest had been
computed without giving effect to this Section.
Section 13.06 Governing Law; Submission to Jurisdiction; Venue.
(a) THIS AGREEMENT AND OTHER DOCUMENTS EXECUTED IN CONNECTION
HEREWITH SHALL BE DEEMED TO BE CONTRACTS AND AGREEMENTS EXECUTED BY THE COMPANY,
THE ADMINISTRATIVE AGENT AND THE LENDERS UNDER THE LAWS OF THE XXXXX XX XXX XXXX
XXX XX XXX XXXXXX XXXXXX AND FOR ALL PURPOSES SHALL BE CONSTRUED IN ACCORDANCE
WITH, AND GOVERNED BY, THE LAWS OF SAID STATE AND OF THE UNITED STATES. Without
limitation of the foregoing, nothing in this Agreement shall be deemed to
constitute a waiver of any rights which any Lender may have under applicable
Federal law relating to the amount of interest which such Lender may contract
for, take, receive or charge in respect of any Loans, including any right to
take, receive, reserve and charge interest at the rate allowed by the laws of
the state where such Lender is located. Any legal action or proceeding with
respect to this Agreement may be brought in the courts of the State of New York
sitting in New York City or of the United States for the Southern District of
New York, and by execution and delivery of this Agreement, the Company hereby
irrevocably accepts for itself and in respect of its Property, generally and
unconditionally, the non-exclusive jurisdiction of the aforesaid courts. The
Company further irrevocably consents to the service of process out of any of the
aforementioned courts in any such action or proceeding by the mailing of copies
thereof by registered or certified mail, postage prepaid, to the Company at its
address for notices pursuant to Section 13.02, such service to become effective
15 days after such mailing. Nothing herein shall affect the right of the
Administrative Agent or any Lender to serve process in any other manner
permitted by law or to commence legal proceedings or otherwise proceed against
the Company in any other jurisdiction.
(b) The Company irrevocably waives any objection which it may now
or hereafter have to the laying of venue of any of the aforesaid actions or
proceedings arising out of or in connection with this Agreement brought in the
courts referred to in clause (a) above and hereby further irrevocably waives and
agrees not to plead or claim in any such court that any such action or
proceeding brought in any such court has been brought in an inconvenient forum.
Section 13.07 Survival of Representations and Warranties; Binding
Effect; Assignment.
(a) All representations, warranties and covenants contained herein
or made in writing by the Company in connection herewith shall survive the
execution and delivery of this
44
Agreement and will bind and inure to the benefit of the respective successors
and assigns of the parties hereto, whether so expressed or not. This Agreement
shall become effective when it shall have been executed by the Company, the
Administrative Agent and each of the Lenders, and thereafter shall be binding
upon and inure to the benefit of the Company, the Administrative Agent and the
Lenders, and their respective successors and assigns, except that the Company
shall not have the right to assign its rights or obligations hereunder or any
interest herein without the prior written consent of each Lender.
(b) Each Lender may grant participations to one or more Financial
Institutions in or to all or any part of its rights and obligations under this
Agreement (including, without limitation, all or a portion of its Commitment)
pursuant to such participation agreements and certificates as are customary in
the banking industry; provided that (i) such Lender's obligations under this
Agreement (including, without limitation its Commitment to the Company
hereunder) shall remain unchanged, (ii) such Lender shall remain solely
responsible to the other parties hereto for the performance of such obligations
and (iii) the Company, the 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, including without
limitation, such Lender's rights under Article XI hereof. In connection with any
such participation, each Lender may deliver such financial information
concerning the Company and its Subsidiaries to permit such participant to make
an informed and independent credit decision concerning such participation;
provided that each such Lender shall obtain from each such participant an
agreement to the effect that all such information delivered to it in connection
with such participation shall be treated in accordance with the provisions of
Section 13.14. Upon request of the Company, each Lender shall give prompt notice
to the Company of each such participation to Financial Institutions that are not
Affiliates of such Lender, identifying each such participant and the interest
acquired by each such participant. This Agreement shall not be construed so as
to confer any right or benefit upon any Person, including, without limitation,
any Financial Institution acquiring a participation in any Loan, other than the
parties to this Agreement, except that any Financial Institution acquiring a
participation shall be entitled to the benefits conferred upon the Lenders by
Sections 2.02(e)-(f) and 2.03, as limited or modified by Sections 2.02(g) and
2.04 (provided that the cost to the Company is not in excess of what such cost
would have been had such participation not been granted).
(c) Subject (except in the case of assignments to Lenders or Lender
Affiliates) to the prior written consent of the Company and the Administrative
Agent (which consents shall not be unreasonably withheld or delayed), each
Lender may assign to a bank or other Person all or a portion of its rights and
obligations under this Agreement (including, without limitation, all or a
portion of its Commitment or Loans); provided that (i) each such assignment
shall be in an amount equal to or greater than $2,500,000 (except in the case of
assignments to Lenders or Lender Affiliates, assignment of the assigning
Lender's entire remaining commitment or unless otherwise agreed by the Company)
and (ii) the parties to each such assignment shall execute and deliver to the
Administrative Agent, for its acceptance and recording in the Register, an
Assignment and Acceptance in substantially the form of Exhibit 13.07(c) attached
hereto (the "Assignment and Acceptance"), together with a processing and
recordation fee of $3,500; provided that such recordation fee shall not be
payable if such transfer is made pursuant to Sections 2.02(d) or (f)(vi), and
provided, further, that any consent of the Company required under this paragraph
shall not be required if an Event of Default has occurred and is continuing.
Upon such execution, delivery, acceptance and recording, from and after the
effective date specified in each Assignment and Acceptance, which effective date
shall be the date on which such Assignment and Acceptance is accepted by the
Administrative Agent, (x) the assignee thereunder shall be a party hereto and,
to the extent that rights and obligations hereunder have been assigned to it
pursuant to such Assignment and Acceptance, have the rights and obligations of a
Lender under this Agreement and (y) the Lender assignor thereunder shall, to the
extent that rights and obligations hereunder have been assigned by it pursuant
to such Assignment and Acceptance, relinquish its rights and be released from
its obligations under this Agreement (and, in the case of an Assignment and
Acceptance covering all or the
45
remaining portion of an assigning Lender's rights and obligations under this
Agreement, such Lender shall cease to be a party hereto).
(d) Notwithstanding anything to the contrary contained herein, any
Lender (a "Granting Lender") may grant to a special purpose funding vehicle (an
"SPC"), identified as such in writing from time to time by the Granting Lender
to the Administrative Agent and the Company, the option to provide to the
Company all or any part of any Loan that such Granting Lender would otherwise be
obligated to make to the Company pursuant to this Agreement; provided that (i)
nothing herein shall constitute a commitment by any SPC to make any Loan, (ii)
if an SPC elects not to exercise such option or otherwise fails to provide all
or any part of such Loan, the Granting Lender shall be obligated to make such
Loan pursuant to the terms hereof, and such Granting Lender shall be liable
hereunder generally for all acts and omissions of such SPC as if such acts and
omissions were committed by such Granting Lender; (iii) the SPC shall have no
rights or benefits under this Agreement or any Note or any other related
documents (its rights against such Granting Lender being as set forth in any
agreements between such SPC and such Granting Lender), and shall not constitute
a "Lender" hereunder; (iv) all amounts payable by the Company to the Granting
Lender shall be determined as if such Granting Lender had not granted such
option, and as if such Granting Lender were funding each of its Loans and its
share of the Commitments in the same way that it is funding the portion of such
Loans and its share of the Loan Commitments in which no such option has been
granted; and (v) in no event shall a Granting Lender agree with a SPC to take or
refrain from taking any action hereunder or under any Note or any other related
document, except that such Granting Lender may agree with the SPC that it will
not, without the consent of the SPC, agree to any modification, supplement or
waiver of this Section 13.07(d). The making of a Loan by an SPC hereunder shall
utilize the Commitment of the Granting Lender to the same extent, and as if,
such Loan were made by such Granting Lender. Each party hereto hereby agrees
that (i) no SPC shall be liable for any indemnity or similar payment obligation
under this Agreement (all liability for which shall remain with the Granting
Lender), (ii) no SPC shall be entitled to the benefits of Sections 2.02(d), (e)
or (f) (or any other increased costs protection provision) other than as
contemplated by clause (iv) of the second preceding sentence and (iii) the
Granting Lender shall for all purposes, including, without limitation, the
approval of any amendment or waiver of any provision of this Agreement or any
related document, remain the Lender of record hereunder. In furtherance of the
foregoing, each party hereto hereby agrees (which agreement shall survive the
termination of this Agreement) that, prior to the date that is one year and one
day after the payment in full of all outstanding commercial paper or other
senior indebtedness of any SPC, it will not institute against, or join any other
person in instituting against, such SPC any bankruptcy, reorganization,
arrangement, insolvency or liquidation proceedings under the laws of the United
States of any State thereof. In addition, notwithstanding anything to the
contrary contained in this Section 13.07(d) any SPC may (i) with notice to, but
without the prior written consent of, the Company and the Administrative Agent
and without paying any processing fee therefor, assign all or a portion of its
interests in any Loan to the Granting Lender or to any financial institutions
(consented to by the Company and Administrative Agent) providing liquidity
and/or credit support to or for the account of such SPC to support the funding
or maintenance of Loans and (ii) disclose on a confidential basis any non-public
information relating to its Loans to any rating agency, commercial paper dealer
or provider of any surety, guarantee or credit or liquidity enhancement to such
SPC, provided that prior to any such disclosure, such rating agency, commercial
paper dealer or provider of any surety, guarantee or credit or liquidity
enhancement shall undertake in writing to preserve the confidentiality of such
information. This Section may not be amended without the written consent of the
SPC.
(e) By executing and delivering an Assignment and Acceptance, the
Lender assignor thereunder and the assignee thereunder confirm to and agree with
each other and the other parties hereto as follows: (i) other than as provided
in such Assignment and Acceptance, such assigning Lender makes no representation
or warranty and assumes no responsibility with respect to any statements,
warranties or representations made in or in connection with this Agreement or
the execution, legality, validity,
46
enforceability, genuineness, sufficiency or value of any other instrument or
document furnished pursuant thereto; (ii) such assigning Lender makes no
representation or warranty and assumes no responsibility with respect to the
financial condition of the Company or the performance or observance by the
Company of any of its respective obligations under this Agreement; (iii) such
assignee confirms that it has received a copy of this Agreement, together with
copies of the financial statements referred to in Sections 6.02 and 8.02 and
such other documents and information as it has deemed appropriate to make its
own credit analysis and decision to enter into such Assignment and Acceptance;
(iv) such assignee will, independently and without reliance upon the
Administrative Agent, such assigning Lender or any other Lender and based on
such documents and information as it shall deem appropriate at the time,
continue to make its own credit decisions in taking or not taking action under
this Agreement; (v) such assignee appoints and authorizes the Administrative
Agent to take such action as agent on its behalf and to exercise such powers
under this Agreement as are delegated to the Administrative Agent by the terms
hereof, together with such powers as are reasonably incidental thereto; and (vi)
such assignee agrees that it will perform in accordance with its terms all of
the obligations which by the terms of this Agreement are required to be
performed by it as a Lender.
(f) The Administrative Agent shall maintain at its address referred
to in Section 13.02 a copy of each Assignment and Acceptance delivered to and
accepted by it and a register for the recordation of the names and addresses of
the Lenders and the Commitment of, and principal amount of the Loans, if any,
owing to, each Lender from time to time (the "Register"). The entries in the
Register shall be conclusive and binding for all purposes, absent manifest
error, and the Company, the Administrative Agent and the Lenders may treat each
Person whose name is recorded in the Register as a Lender hereunder for all
purposes of this Agreement. The Register shall be available for inspection by
the Company or any Lender at any reasonable time and from time to time upon
reasonable prior notice.
(g) Upon its receipt of an Assignment and Acceptance executed by an
assigning Lender, the Administrative Agent shall, if such Assignment and
Acceptance has been completed and is in substantially the form of Exhibit
13.07(c) attached hereto, (i) accept such Assignment and Acceptance, (ii) record
the information contained therein in the Register and (iii) give prompt notice
thereof to the Company.
(h) Notwithstanding any other provision in this Agreement, any
Lender may at any time, without the consent of the Company, assign or pledge all
or any portion of its rights under this Agreement (including, without
limitation, the Loans) in favor of any Federal Reserve Bank in accordance with
Regulation A of the Board of Governors of the Federal Reserve System; provided
that no such assignment shall release a Lender from any of its obligations
hereunder or substitute any such Federal Reserve Bank for such Lender as a party
hereto. In order to facilitate such an assignment to a Federal Reserve Bank, the
Company shall, at the request of the assigning Lender, duly execute and deliver
to the assigning Lender a promissory note or notes evidencing the Loans made to
the Company by the assigning Lender hereunder.
Section 13.08 Counterparts. This Agreement may be executed in
several counterparts, and by the parties hereto on separate counterparts. When
counterparts executed by all the parties shall have been delivered to the
Administrative Agent, this Agreement shall become effective, and at such time
the Administrative Agent shall notify the Company and each Lender. Each
counterpart, when so executed and delivered, shall constitute an original
instrument, and all such separate counterparts shall constitute but one and the
same instrument. Delivery of an executed counterpart of a signature page of this
Agreement by telecopy shall be effective as delivery of a manually executed
counterpart of this Agreement.
47
Section 13.09 Severability. Should any clause, sentence, paragraph
or section of this Agreement be judicially declared to be invalid, unenforceable
or void, such decision will not have the effect of invalidating or voiding the
remainder of this Agreement, and the parties hereto agree that the part or parts
of this Agreement so held to be invalid, unenforceable or void will be deemed to
have been stricken herefrom and the remainder will have the same force and
effectiveness as if such part or parts had never been included herein.
Section 13.10 Descriptive Headings. The section headings in this
Agreement have been inserted for convenience only and shall be given no
substantive meaning or significance whatever in construing the terms and
provisions of this Agreement.
Section 13.11 Representation of the Lenders; Notification by the
Lenders.
(a) Each Lender hereby represents and warrants that it is not
relying upon any Margin Stock as collateral in extending or maintaining the
credit to the Company represented by this Agreement.
(b) Each Lender hereby notifies the Company that pursuant to the
requirements of the USA Patriot Act (Title III of Pub. L. 107-56 (signed into
law October 26, 2001)) (the "Act"), it is required to obtain, verify and record
information that identifies the Company, which information includes the name and
address of the Company and other information that will allow such Lender to
identify the Company in accordance with the Act.
Section 13.12 Final Agreement of the Parties. This Agreement
(including the Exhibits hereto) represents the final agreement of the parties
and may not be contradicted by evidence of prior, contemporaneous or subsequent
oral agreements of the parties. There are no oral agreements between the
parties. All prior written agreements entered into by the Company with the
Administrative Agent and Arrangers shall survive the execution and delivery of
this Agreement and remain enforceable in accordance with their terms, except to
the extent any such agreement has terminated or hereafter terminates in
accordance with its terms or with the consent of the parties thereto.
Section 13.13 Waiver of Jury Trial. THE COMPANY, THE ADMINISTRATIVE
AGENT AND EACH LENDER HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVE, TO THE
FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT THEY MAY HAVE TO A TRIAL
BY JURY IN RESPECT OF ANY LEGAL ACTION OR PROCEEDING DIRECTLY OR INDIRECTLY
ARISING OUT OF, UNDER, OR IN CONNECTION WITH THIS AGREEMENT AND FOR ANY
COUNTERCLAIM THEREIN.
Section 13.14 Confidentiality. Each of the Administrative Agent and
the Lenders agrees to maintain the confidentiality of the Information (as
defined below), except that Information may be disclosed (i) to its and its
Affiliates' directors, officers, employees and agents, including accountants,
legal counsel and other advisors (it being understood that the Persons to whom
such disclosure is made will be informed of the confidential nature of such
Information and instructed to keep such Information confidential), (ii) to the
extent requested by any regulatory authority, (iii) to the extent required by
applicable laws or regulations or by any subpoena or similar legal process, (iv)
to any other party to this Agreement, (v) in connection with the exercise of any
remedies hereunder or any suit, action or proceeding relating to this Agreement
or the enforcement of rights hereunder, (vi) subject to an agreement containing
provisions substantially the same as those of this Section 13.14, to (A) any
assignee of or participant in, or any prospective assignee of or participant in,
any of its rights or obligations under this Agreement or (B) any actual or
prospective counterparty (or its advisors) to any swap or derivative transaction
relating to the Company and its obligations, (vii) with the consent of the
Company or (viii) to
48
the extent such Information (A) becomes publicly available other than as a
result of a breach of this Section or (B) becomes available to the
Administrative Agent or any Lender on a nonconfidential basis from a source
other than the Company or any of its agents. For the purposes of this Section
13.14, "Information" means all information received from or on behalf of the
Company or any of its Subsidiaries relating to the Company, any of its
Subsidiaries, or any of their respective businesses. Any Person required to
maintain the confidentiality of Information as provided in this Section 13.14
shall be considered to have complied with its obligation to do so if such Person
has exercised the same degree of care to maintain the confidentiality of such
Information as such Person would accord to its own confidential information.
Section 13.15 Designation of Obligations as Designated Senior
Indebtedness. For purposes of the Indenture and Prospectus Supplement, all
obligations of the Company hereunder shall be deemed "Designated Senior
Indebtedness".
[Intentionally left blank]
49
IN WITNESS WHEREOF this Agreement has been executed by the duly
authorized signatories of the parties hereto in several counterparts all as of
the day and year first above written.
XXX COMMUNICATIONS, INC.,
By /s/ Xxxxx X. Xxxxx
----------------------------------------
Name: Xxxxx X. Xxxxx
Title: Vice President and Treasurer
JPMORGAN CHASE BANK, N.A., individually and
as Administrative Agent
By /s/ Xxxxx X. Xxxxx
----------------------------------------
Name: Xxxxx X. Xxxxx
Title: Managing Director
CITICORP NORTH AMERICA, INC., individually
and as Syndication Agent
By /s/ Xxxxxxx X. Xxx
----------------------------------------
Name: Xxxxxxx X. Xxx
Title: Vice President
CITICORP GLOBAL MARKETS, INC., as Joint
Lead Arrange and Joint Bookrunner
By /s/ Xxxxxxx X. Xxx
----------------------------------------
Name: Xxxxxxx X. Xxx
Title: Vice President
XXXXXX BROTHERS INC., as Joint Lead
Arranger and Joint Bookrunner
By
----------------------------------------
Name:
Title:
X.X. XXXXXX SECURITIES INC., as Joint Lead
Arranger and Joint Bookrunner
By /s/ Xxxx X. Xxxxxxx
----------------------------------------
Name: Xxxx X. Xxxxxxx
Title: Vice President
BANC OF AMERICA. N.A.
By /s/ Xxxx Xxxxxxx
----------------------------------------
Name: Xxxx Xxxxxxx
Title: Senior Vice President
WACHOVIA BANK, NATIONAL ASSOCIATION,
By /s/ Xxxxxxxx X. Xxxxxxxxx
----------------------------------------
Name: Xxxxxxxx X. Xxxxxxxxx
Title: Managing Director
SUNTRUST BANK
By /s/ Xxxxxx X. Xxxxxx
----------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Managing Director
SUNTRUST CAPITAL MARKETS INC.
By /s/ Xxxxxx Xxxxxx
----------------------------------------
Name: Xxxxxx Xxxxxx
Title: Managing Director
THE BANK OF NEW YORK
By /s/ Xxxxxxx X. Xxxxxx
----------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
MIZUHO CORPORATE BANK, LTD.
By /s/ Xxxx Xxxxxxx
----------------------------------------
Name: Xxxx Xxxxxxx
Title: Senior Vice President
THE BANK OF TOKYO-MITSUBISHI, LTD., NY
BRANCH
By /s/ Xxxxx Xxxxxxxxxx
----------------------------------------
Name: Xxxxx Ossolinsky
Title: Vice Presidetn
BARCLAYS BANK PLC
By /s/ Xxxxxxxx X. Xxxx
----------------------------------------
Name: Xxxxxxxx X. Xxxx
Title: Director Loan Transaction
Department
THE BANK OF NOVA SCOTIA
By /s/Xxxx X. Xxxxxx
----------------------------------------
Name: Xxxx X. Xxxxxx
Title: Authorized Signatory
THE ROYAL BANK OF SCOTLAND
By /s/ Xxxxxx Xxxx
----------------------------------------
Name: Xxxxxx Xxxx
Title: Senior Vice President
DRESDNER BANK AG, NEW YORK AND
GRAND CAYMAN BRANCHES
By /s/ Xxxxx Xxxxx
----------------------------------------
Name: Xxxxx Xxxxx
Title: Managing Director
By /s/ Xxxxx Xxxxxxxxx
----------------------------------------
Name: Xxxxx Xxxxxxxxx
Title: Vice President
SUMITOMO MITSUI BANKING
CORPORATION
By /s/ Xxx X. Xxxxxxxxx
----------------------------------------
Name: Xxx X. Xxxxxxxxx
Title: Senior Vice President
CREDIT SUISSE FIRST BOSTON, acting through
its Cayman Islands Branch
By /s/ Xxxxxx X. Xxxx
----------------------------------------
Name: Xxxxxx X. Xxxx
Title: Vice President
By /s/ Xxxxxx Xxxx
----------------------------------------
Name: Xxxxxx Xxxx
Title: Associate
UBS LOAN FINANCE LLC
By /s/ Xxxxxxx X. Saint
----------------------------------------
Name: Xxxxxxx X. Saint
Title: Director Banking Products
Services, US
By /s/ Xxxx Xxxxxx
----------------------------------------
Name: Xxxx Xxxxxx
Title: Associate Director Banking
Products Services, US
SOCIETE GENERALE
By /s/ Xxxx Xxxxx
----------------------------------------
Name: Xxxx Xxxxx
Title: Managing Director
