Exhibit 10.1
EXECUTION COPY
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.................................................................... 14
Section 1.03 Accounting Terms; GAAP............................................................. 15
ARTICLE II. THE LOANS ........................................................................................... 15
Section 2.01 Term Loans......................................................................... 15
Section 2.02 Conventional Revolving Loans....................................................... 16
Section 2.03 Delivery of Proceeds; Recordation of Loans; Interest............................... 18
Section 2.04 Setoff, Counterclaims and Taxes.................................................... 24
Section 2.05 Withholding Tax Exemption.......................................................... 24
Section 2.06 Discretionary Revolving Loans...................................................... 25
Section 2.07 Interest Election.................................................................. 26
Section 2.08 Obligations Several, Not Joint..................................................... 27
Section 2.09 Replacement of Lenders............................................................. 27
Section 2.10 Letters of Credit.................................................................. 27
Section 2.11 Evidence of Debt................................................................... 31
ARTICLE III. OPTIONAL AND REQUIRED PREPAYMENTS; INTEREST PAYMENT DATE AND COMMITMENT REDUCTION DATE
PAYMENTS; OTHER PAYMENTS ................................................................... 31
Section 3.01 Optional Prepayments............................................................... 31
Section 3.02 Required Prepayments............................................................... 32
Section 3.03 Place, etc. of Payments and Prepayments............................................ 33
ARTICLE IV. REDUCTION OF COMMITMENTS; FEES....................................................................... 33
Section 4.01 Optional Reduction or Termination of Commitments................................... 33
Section 4.02 Mandatory Termination of Commitments............................................... 34
Section 4.03 Commitment Fees.................................................................... 34
Section 4.04 LC Participation Fees.............................................................. 34
Section 4.05 Administrative Agent's Fee......................................................... 35
ARTICLE V. APPLICATION OF PROCEEDS............................................................................... 35
ARTICLE VI. REPRESENTATIONS AND WARRANTIES....................................................................... 35
Section 6.01 Organization; Qualification; Subsidiaries.......................................... 35
Section 6.02 Financial Statements............................................................... 35
Section 6.03 Actions Pending.................................................................... 35
Section 6.04 Default............................................................................ 36
Section 6.05 Title to Assets.................................................................... 36
Section 6.06 Payment of Taxes................................................................... 36
Section 6.07 Conflicting or Adverse Agreements or Restrictions.................................. 36
Section 6.08 Purpose of Loans................................................................... 36
Section 6.09 Authority; Validity; Enforceability................................................ 36
Section 6.10 Consents or Approvals.............................................................. 36
Section 6.11 Compliance with Law................................................................ 37
Section 6.12 ERISA.............................................................................. 37
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Section 6.13 Investment Company Act............................................................. 37
Section 6.14 Disclosure......................................................................... 37
Section 6.15 Material Franchise Agreements...................................................... 37
Section 6.16 Quality of CATV Systems............................................................ 38
ARTICLE VII. CONDITIONS.......................................................................................... 38
Section 7.01 Conditions Precedent to the Initial Extension of Credit............................ 38
Section 7.02 Conditions Precedent to Each Extension of Credit................................... 39
ARTICLE VIII. AFFIRMATIVE COVENANTS.............................................................................. 40
Section 8.01 Certain Financial Covenants........................................................ 40
Section 8.02 Financial Statements and Information............................................... 40
Section 8.03 Existence; Laws; Obligations....................................................... 42
Section 8.04 Notice of Litigation and Other Matters............................................. 42
Section 8.05 Books and Records.................................................................. 42
Section 8.06 Inspection of Property and Records................................................. 42
Section 8.07 Maintenance of Property; Insurance................................................. 43
Section 8.08 ERISA.............................................................................. 43
Section 8.09 Maintenance of Revolving Credit Usage Proportionality.............................. 43
Section 8.10 Maintenance of Business Lines...................................................... 43
Section 8.11 Compliance with Material Franchise Agreements and FCC Licenses..................... 43
ARTICLE IX. NEGATIVE COVENANTS................................................................................... 44
Section 9.01 Liens.............................................................................. 44
Section 9.02 Merger; Consolidation; Disposition of Assets....................................... 45
Section 9.03 Restricted Payments................................................................ 45
Section 9.04 Limitation on Margin Stock......................................................... 45
Section 9.05 Loans and Advances to and Investments in Unrestricted Subsidiaries................. 45
Section 9.06 Subsidiary Debt.................................................................... 46
Section 9.07 Transactions with Affiliates....................................................... 46
ARTICLE X. EVENTS OF DEFAULT..................................................................................... 46
Section 10.01 Failure to Pay Principal or Interest............................................... 47
Section 10.02 Failure to Pay Other Sums.......................................................... 47
Section 10.03 Failure to Pay or Acceleration of Other Debt....................................... 47
Section 10.04 Misrepresentation or Breach of Warranty............................................ 47
Section 10.05 Violation of Certain Covenants..................................................... 47
Section 10.06 Violation of Other Covenants, etc.................................................. 48
Section 10.07 Undischarged Judgment.............................................................. 48
Section 10.08 Change of Control.................................................................. 48
Section 10.09 Assignment for Benefit of Creditors or Nonpayment of Debts......................... 48
Section 10.10 Voluntary Bankruptcy............................................................... 48
Section 10.11 Involuntary Bankruptcy............................................................. 48
Section 10.12 Dissolution........................................................................ 48
ARTICLE XI. MODIFICATIONS, AMENDMENTS OR WAIVERS................................................................. 48
ARTICLE XII. THE ADMINISTRATIVE AGENT............................................................................ 49
Section 12.01 Appointment of Administrative Agent................................................ 49
Section 12.02 Indemnification of Administrative Agent............................................ 50
Section 12.03 Limitation of Liability............................................................ 50
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Section 12.04 Independent Credit Decision........................................................ 50
Section 12.05 Rights of JPMCB.................................................................... 50
Section 12.06 Successor to the Administrative Agent.............................................. 51
Section 12.07 Other Agents and Sub-Agents........................................................ 51
ARTICLE XIII. MISCELLANEOUS...................................................................................... 51
Section 13.01 Payment of Expenses................................................................ 51
Section 13.02 Notices............................................................................ 52
Section 13.03 Setoff............................................................................. 52
Section 13.04 Indemnity and Judgments............................................................ 53
Section 13.05 Interest........................................................................... 54
Section 13.06 Governing Law; Submission to Jurisdiction; Venue................................... 54
Section 13.07 Survival of Representations and Warranties; Binding Effect; Assignment............. 55
Section 13.08 Counterparts....................................................................... 58
Section 13.09 Severability....................................................................... 58
Section 13.10 Descriptive Headings............................................................... 58
Section 13.11 Representation of the Lenders; Notification by the Lenders......................... 58
Section 13.12 Final Agreement of the Parties..................................................... 58
Section 13.13 Waiver of Jury Trial............................................................... 58
Section 13.14 Confidentiality.................................................................... 59
Section 13.15 Designation of Obligations as Designated Senior Indebtedness....................... 59
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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) - Term Loan Commitments
Exhibit 2.02(a) - Revolving Commitments
Exhibit 2.03(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 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 extensions of credit in an aggregate principal or face amount at any time
outstanding not greater than $3,500,000,000, consisting of $2,000,000,000
aggregate principal amount of Term Loans, and up to $1,500,000,000 aggregate
principal amount of Conventional Revolving Loans (of which up to $200,000,000
may be in the form of letters of credit). The proceeds of the Borrowings made
and the letters of credit issued hereunder will be used by the Company as
provided in Article V.
The Lenders are willing to establish the credit facilities 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 Eighteen-Month
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 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 2.03(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%.
"Applicable Revolver Percentage" shall mean, with respect to any
Lender at any time, the percentage of the aggregate amount of the Revolving
Commitments represented by such Lender's Revolving Commitment at such time. If
the Revolving Commitments have terminated or expired, the Applicable Revolver
Percentage shall be determined based upon the Revolving Commitments most
recently in effect, giving effect to any assignments.
"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 Term Loan Borrowing or a Conventional
Revolving Borrowing.
"Borrowing Date" shall mean a date upon which a Borrowing or
Discretionary Revolving Loan is to be made under Article II.
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"Borrowing Pro Rata Share" shall mean, with respect to any Lender as
to any Borrowing of Conventional Revolving Loans or Term 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 amount of such
Lender's Commitment for such Loans and (B) the denominator of which shall be the
aggregate amount of all Lenders' Commitments for such Loans.
"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.
"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 Existing Credit Agreement" shall have the meaning specified in
Section 8.09.
"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.
"Commitments" shall mean the Revolving Commitments and Term Loan
Commitments, as such Commitments may be reduced from time to time pursuant to
the terms of this Agreement.
"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
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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.
"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.
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"Conventional Revolving Borrowing" shall mean a Borrowing of
Conventional Revolving Loans made by the Company under Section 2.02(a), as
converted or continued under Section 2.07.
"Conventional Revolving Loans" shall have the meaning specified in
Section 2.02(a).
"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%.
"Debentures" shall mean the Company's Exchangeable Subordinated
Discount Debentures due 2020 in an aggregate original principal amount at
maturity of $1,643,617,000.
"Debt" shall mean with respect to any Person and without duplication
(i) indebtedness for borrowed money or for the deferred purchase price of
Property in respect of which such Person is liable, contingently or otherwise,
as obligor, guarantor or otherwise, or in respect of which such Person directly
or indirectly assures a creditor against loss, and (ii) the capitalized portions
of obligations under leases which shall have been or should have been, in
accordance with GAAP, recorded as capital leases.
"Default Rate" shall mean a rate per annum (for the actual number of
days elapsed, based on a year of 365 or 366 days, as the case may be) which
shall be equal to the lesser of (i) in the case of a Term Loan or Conventional
Revolving Loan, the Alternate Base Rate plus the Alternate Base Rate Margin plus
1% or the Highest Lawful Rate, (ii) in the case of a Discretionary Revolving
Loan, the Negotiated Rate plus 1% or the Highest Lawful Rate, and (iii) in the
case of LC Disbursements, the Alternate Base Rate plus the Alternate Base Rate
Margin plus 1% or the Highest Lawful Rate.
"Depositary" shall have the meaning specified in Section 13.03.
"Discretionary Revolving Loan Interest Period" shall mean the period
which shall commence on the Borrowing Date with respect to a Discretionary
Revolving Loan and shall end on a date which shall be agreed to by the Company
and the Lender, by telephone (to be promptly confirmed in writing by the
Company); provided that no Discretionary Revolving Loan Interest Period shall
extend beyond the Revolving Credit Termination Date.
"Discretionary Revolving Loans" shall have the meaning specified in
Section 2.06(a).
"Dollars" and "$" 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
2.03(d)(i).
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"Eurodollar Loans" shall mean those Loans which may be made under
this Agreement and which are described in Section 2.03(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 Issuing Lender, 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;
(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, the Loans or the Letters
of Credit) 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 2.05.
"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
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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 2.03(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 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.
"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, LC Disbursement or on the other
amounts which may be owing to any Lender pursuant to this Agreement (including,
without limitation, pursuant to Section 2.06) 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
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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 2.07.
"Interest Payment Date" shall mean the last day of each Interest
Period.
"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 Term Loan Borrowing, Notice of Conventional Revolving Borrowing or
Interest Election Request; provided that (i) no Interest Period with respect to
Term Loans shall extend beyond the Term Loan Maturity Date and no Interest
Period with respect to Conventional Revolving Loans shall extend beyond the
Revolving Credit Termination 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.
"Issuing Lender" shall mean, with respect to any Letter of Credit,
JPMCB, Bank of America, N.A. or Wachovia Bank, National Association, as selected
by the Company, in its capacity as issuer of such Letter of Credit, and its
successors in such capacity as provided in Section 2.10(i). Each Issuing Lender
may, in its discretion, arrange for one or more Letters of Credit to be issued
by Affiliates of such Issuing Lender, in which case the term "Issuing Lender"
shall include any such Affiliate executing this Agreement as Issuing Lender, in
its capacity as issuer of Letters of Credit hereunder.
"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.
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"LC Disbursement" shall mean a payment made by an Issuing Lender
pursuant to a Letter of Credit.
"LC Exposure" shall mean, at any time, the sum of (i) the aggregate
undrawn amount of all outstanding Letters of Credit at such time plus (ii) the
aggregate amount of all LC Disbursements that have not yet been reimbursed by or
on behalf of the Company at such time. The LC Exposure of any Lender at any time
shall be its Applicable Revolver Percentage of the total LC Exposure at such
time.
"LC Participation Fee" shall have the meaning specified in Section
4.04.
"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 Exhibits 2.01(a) and
2.02(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, as to a
Conventional Revolving Loan or Term Loan, 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.
"Letter of Credit" shall mean a letter of credit issued by an
Issuing Lender pursuant to Section 2.10.
"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.
"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)
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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.
"Loans" shall mean Term Loans and Conventional Revolving Loans (in
each case whether Federal Funds Rate Loans, Alternate Base Rate Loans or
Eurodollar Loans) and Discretionary Revolving Loans.
"Majority Lenders" shall mean (a) until expiration or termination of
the Revolving Commitments, Lenders having more than 50% of the Revolving
Commitments, outstanding Term Loans and unfunded Commitments for Term Loans and
(b) after expiration or termination of the Revolving Commitments, Lenders having
more than 50% of the aggregate outstanding Loans and LC Exposure.
"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 2.03(c)(ii) or Section 2.03(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 Xxxxx'x, 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%
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
