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EXHIBIT 10.1
364-DAY
CREDIT AGREEMENT
dated as of September 26, 2000
by and among
XXX COMMUNICATIONS, INC.
and
The Banks Party Hereto
and
THE CHASE MANHATTAN BANK
as Administrative Agent for the Banks
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BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION
as Syndication Agent
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THE BANK OF NEW YORK and WACHOVIA BANK, N.A.
as Co-Documentation Agents
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Chase Securities Inc.,
as Sole Advisor, Arranger and Book Manager
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XXX COMMUNICATIONS, INC.
TABLE OF CONTENTS
ARTICLE I
Definitions...................................................1
ARTICLE II
The Loans
SECTION 2.01. Revolving Credit Loans.........................................13
SECTION 2.02. Setoff, Counterclaims and Taxes................................21
SECTION 2.03. Withholding Tax Exemption......................................21
SECTION 2.04. Discretionary Loans............................................21
SECTION 2.05. Obligations Several, Not Joint.................................22
SECTION 2.06. Replacement of Banks...........................................22
ARTICLE III
Optional and Required Prepayments; Interest
Payment Date; Other Payments
SECTION 3.01. Optional Prepayments...........................................23
SECTION 3.02. Required Prepayments...........................................23
SECTION 3.03. Interest Payment Date..........................................25
SECTION 3.04. Place, etc. of Payments and Prepayments........................25
ARTICLE IV
Fees; Reduction of Commitments
SECTION 4.01. Commitment Fees; Utilization Fee...............................25
SECTION 4.02. Reduction or Termination of Commitments........................26
ARTICLE V
Application of Proceeds
ARTICLE VI
Representations and Warranties
SECTION 6.01. Organization; Qualification; Subsidiaries......................27
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SECTION 6.02. Financial Statements...........................................27
SECTION 6.03. Actions Pending................................................27
SECTION 6.04. Default........................................................28
SECTION 6.05. Title to Assets................................................28
SECTION 6.06. Payment of Taxes...............................................28
SECTION 6.07. Conflicting or Adverse Agreements or Restrictions..............28
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SECTION 6.08. Purpose of Loans...............................................28
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SECTION 6.09. Authority; Validity............................................29
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SECTION 6.10. Consents or Approvals..........................................29
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SECTION 6.11. Compliance with Law............................................29
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SECTION 6.12. ERISA..........................................................29
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SECTION 6.13. Investment Company Act.........................................29
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SECTION 6.14. Disclosure.....................................................30
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SECTION 6.15. Material Franchise Agreements..................................30
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SECTION 6.16. Insurance......................................................30
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SECTION 6.17. Quality of CATV Systems........................................30
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SECTION 6.18. Environmental and Safety Matters...............................30
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ARTICLE VII
Conditions
SECTION 7.01. Conditions Precedent to Closing................................31
SECTION 7.02. Conditions Precedent to Each Borrowing.........................32
SECTION 7.03. Conditions Precedent to Borrowings that Increase Principal
Outstanding....................................................32
SECTION 7.04. Conditions Precedent to the Initial Borrowing After the
Effectiveness of this Agreement................................33
ARTICLE VIII
Affirmative Covenants
SECTION 8.01. Certain Financial Covenants....................................33
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SECTION 8.02. Financial Statements and Information...........................33
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SECTION 8.03. Existence, Laws, Obligations...................................35
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SECTION 8.04. Notice of Litigation and Other Matters.........................35
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SECTION 8.05. Books and Records..............................................36
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SECTION 8.06. Inspection of Property and Records.............................36
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SECTION 8.07. Maintenance of Property, Insurance.............................36
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SECTION 8.08. ERISA..........................................................36
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SECTION 8.09. Maintenance of Business Lines..................................36
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SECTION 8.10. Compliance with Material Franchise Agreements..................37
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SECTION 8.11. Restricted/Unrestricted Designation of Subsidiaries............37
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SECTION 8.12. ...............................................................37
ARTICLE IX
Negative Covenants
SECTION 9.01. Mortgages, etc.................................................37
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SECTION 9.02. Debt...........................................................38
SECTION 9.03. Merger; Consolidation; Disposition of Assets...................38
SECTION 9.04. Restricted Payments............................................39
SECTION 9.05. Limitation on Margin Stock.....................................39
SECTION 9.06. Loans and Advances to and Investments in Unrestricted
Subsidiaries...................................................39
SECTION 9.07. Transactions with Affiliates 39
ARTICLE X
Events of Default
SECTION 10.01. Failure To Pay Principal or Interest..........................40
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SECTION 10.02. Failure To Pay Other Sums.....................................40
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SECTION 10.03. Failure To Pay Other Debt.....................................40
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SECTION 10.04. Misrepresentation or Breach of Warranty.......................41
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SECTION 10.05. Violation of Certain Covenants................................41
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SECTION 10.06. Violation of Other Covenants, etc.............................41
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SECTION 10.07. Undischarged Judgment.........................................41
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SECTION 10.08. ERISA.........................................................41
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SECTION 10.09. Change of Control.............................................41
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SECTION 10.10. Assignment for Benefit of Creditors or Nonpayment of Debts....41
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SECTION 10.11. Voluntary Bankruptcy..........................................41
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SECTION 10.12. Involuntary Bankruptcy........................................41
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SECTION 10.13. Dissolution...................................................42
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SECTION 10.14. Interest on PRIZES............................................42
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ARTICLE XI
Modifications, Amendments or Waivers
ARTICLE XII
The Administrative Agent
SECTION 12.01. Appointment of Administrative Agent...........................43
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SECTION 12.02. Indemnification of Administrative Agent.......................43
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SECTION 12.03. Limitation of Liability.......................................43
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SECTION 12.04. Independent Credit Decision...................................44
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SECTION 12.05. Rights of Chase...............................................44
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SECTION 12.06. Successor to the Administrative Agent.........................44
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SECTION 12.07. Other Agents..................................................45
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ARTICLE XIII
Miscellaneous
SECTION 13.01. Payment of Expenses...........................................45
SECTION 13.02. Notices.......................................................45
SECTION 13.03. Setoff........................................................46
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SECTION 13.04. Indemnity and Judgments.......................................47
SECTION 13.05. Interest......................................................47
SECTION 13.06. Governing Law; Submission to Jurisdiction; Venue..............47
SECTION 13.07. Survival of Representations and Warranties; Binding Effect;
Assignment....................................................48
SECTION 13.08. Counterparts..................................................51
SECTION 13.09. Severability..................................................51
SECTION 13.10. Descriptive Headings..........................................52
SECTION 13.11. Representation of the Banks...................................52
SECTION 13.12. Final Agreement of the Parties................................52
SECTION 13.13. Waiver of Jury Trial..........................................52
SECTION 13.14. Designation of Obligations as Designated Senior Indebtedness..52
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LIST OF EXHIBITS
The following exhibits have been omitted and will be provided
supplementally to the Commission upon request.
Exhibit 2.01(a) - Banks and Commitments
Exhibit 2.01(g)(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(c)(i) - Opinions of the Company's Counsel and the
Company's Special FCC Counsel addressed to
the Banks
Exhibit 7.01(c)(ii) - Opinion of Counsel for the Banks Addressed
to the Banks
Exhibit 7.01(d) - 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 364-DAY CREDIT AGREEMENT (the "Agreement") made
as of the 26th day of September 2000, is among XXX
COMMUNICATIONS, INC. (the "Company"), the BANKS party hereto,
THE CHASE MANHATTAN BANK, as Administrative Agent for the
Banks (hereinafter in such capacity called the "Administrative
Agent"), BANK OF AMERICA NATIONAL TRUST AND SAVINGS
ASSOCIATION, as syndication agent and THE BANK OF NEW YORK and
WACHOVIA BANK, N.A., as co-documentation agents.
The Company has requested the Banks 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 revolving loans in an aggregate principal amount at any time outstanding
not greater than $1,500,000,000. The proceeds of the Borrowings hereunder will
be used by the Company for general corporate purposes, including the repayment
of maturing commercial paper.
The Banks are willing to establish the credit facility
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
As used in this Agreement, the following words and terms shall
have the respective meanings indicated opposite each of them and all accounting
terms shall be construed in accordance with GAAP consistent with those followed
in the preparation of the financial statements referred to in Section 6.02,
unless otherwise indicated:
"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 364-Day Credit Agreement, as the
same may be amended from time to time.
"Alternate Base Rate" shall mean, for any day, a rate per
annum (rounded upwards, if necessary, to the nearest 1/16 of 1%) 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 Federal
Funds Borrowing Rate shall be effective on the effective date of such change in
the Federal Funds Borrowing Rate. If for any reason the Administrative Agent
shall have determined (which determination shall be conclusive, absent manifest
error) that it is unable to ascertain, after reasonable efforts, the Federal
Funds Borrowing Rate, the Alternate Base Rate shall be the Floating Rate until
the circumstances giving rise to such inability no longer exist.
"Alternate Base Rate Loans" shall mean those Loans which may
be made under
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this Agreement and which are described in Section 2.01(d)(ii) on which the
Company shall pay interest at a rate based on the Alternate Base Rate.
"Assignment and Acceptance" has the meaning specified in
Section 13.07(c) hereof.
"Attributable Amount" shall mean, in respect of any assets
disposed of by the Company or a Restricted Subsidiary, or any designation of a
Restricted Subsidiary as an Unrestricted Subsidiary or of an Unrestricted
Subsidiary as a Restricted Subsidiary pursuant to Section 8.11, the amount of
Consolidated Annualized Operating Cash Flow, determined at the time of such
disposition or designation, which was attributable to such assets or such
Subsidiary.
"Banks" shall mean the Persons listed on Exhibit 2.01(a) 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.
"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, paying at the stated basic service rate, (b) the number
of equivalent bulk and commercial rate customers calculated by dividing the
aggregate bulk and commercial basic service revenues by the stated basic service
rate and (c) the number of courtesy and free service customers.
"Borrowings" and individually, "Borrowing", shall mean
Conventional Borrowings.
"Borrowing Date" shall mean a date upon which a Borrowing is
to be made under Section 2.
"Business Day" shall mean a day when the Reference Banks and
the Administrative Agent are open for business; provided that if the applicable
Business Day relates to Eurodollar Loans, it shall mean a day when the Reference
Banks and the Administrative Agent are open for business and banks are
authorized to be open for business in London and New York.
"Cash Flow Producing Assets" shall mean (a) assets other than
(i) cash equivalents and other investments purchased in the ordinary course of
the Company's cash management activities, (ii) office buildings and office
equipment and supplies and (iii) other assets not comprising cable television
systems or portions thereof and not directly employed in the cash flow-producing
activities of the Company and its Restricted Subsidiaries and (b) any capital
stock of a Restricted Subsidiary owning a Cash Flow Producing Asset.
"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.
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"CD Rate" for any Interest Period shall mean, for each CD Rate
Loan comprising all or part of the relevant Conventional Borrowing, an interest
rate per annum determined by the Administrative Agent to be equal to the sum of:
(a) the rate per annum obtained by dividing (i) the per annum rate of
interest determined by the Administrative Agent to be the average (rounded
upward to the nearest whole multiple of 0.01%, if such average is not such a
multiple) of the bid rate determined independently by each Reference Bank at
10:00 a.m. (New York, New York time), or as soon thereafter as is practicable,
on the first day of such Interest Period, of a certificate of deposit dealer of
recognized standing selected by each Reference Bank for the purchase at face
value of its certificates of deposit in an amount approximately equal or
comparable to the aggregate principal amount of such CD Rate Loans, with a
maturity equal to such Interest Period, by (ii) the result obtained by
subtracting from 100% all reserve (including, without limitation, any imposed by
the Board of Governors of the Federal Reserve System), special deposit or
similar requirements (expressed as a rate per annum) applicable (or scheduled at
the time of determination to become applicable during such Interest Period) to
such certificates of deposit, plus
(b) the weighted average of annual assessment rates, determined by the
Administrative Agent to be in effect on the first day of such Interest Period,
used to determine the then current annual assessment payable by the Reference
Banks to the Federal Deposit Insurance Corporation for such Corporation's
insuring Dollar deposits of such Reference Banks in the United States.
"CD Rate Loans" shall mean those Loans which may be made under
this Agreement and which are described in Section 2.01(d)(i) on which the
Company shall pay interest at a rate based on the CD Rate.
A "Change of Control" shall be deemed to have occurred if (a)
the Cox Family and Xxx Enterprises shall cease at any time to own directly or
indirectly at least 50.1% of the outstanding voting stock of the Company, (b)
any Person or group of Persons other than the Cox Family, Xxx Enterprises and
Persons controlled by them shall have the right or ability, directly or
indirectly, to cause the election of a majority of the directors of the Company,
(c) the Cox Family shall cease at any time to own directly or indirectly at
least 50.1% of the outstanding voting stock of Xxx Enterprises, or (d) any
Person or group of Persons other than the Cox Family shall have the right or
ability, directly or indirectly, to cause the election of a majority of the
directors of Xxx Enterprises.
"Chase" shall mean The Chase Manhattan Bank, a New York
banking corporation having its principal offices located at 000 Xxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000.
"Closing Date" shall mean September 26, 2000.
"Commitment" shall mean as to any Bank the amount of such
Bank's commitment to make Loans hereunder, as set forth beside such Bank's name
on Exhibit 2.01(a) attached hereto or in any Assignment and Acceptance executed
pursuant to Section 13.07(c), as such amount (a) may be reduced from time to
time pursuant to the terms of this Agreement or pursuant to an Assignment and
Acceptance or (b) may be increased or reduced from time to time pursuant to an
Assignment and Acceptance, and "Commitments" shall mean the Commitments of all
of the Banks.
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"Commitment Fees" shall have the meaning set forth in Section
4.01(a).
"Consolidated Annualized Interest Expense" shall mean four
times 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 for the most recently completed fiscal quarter, all on a
consolidated basis determined in accordance with GAAP; provided that interest
expense shall exclude (a) any Deferred Basic Interest or Accrued Interest (as
defined in Section 3 of the global notes evidencing the PRIZES) on the PRIZES
until such time as such Deferred Basic Interest or Accrued Interest is paid in
cash and (b) any effects on interest expense in respect of any Indexed Security
arising as a result of xxxx-to-market entries made in respect of fluctuations in
the fair value of the securities underlying such Indexed Security, or
fluctuations in the fair value of any derivative financial instruments embedded
in such Indexed Security.
"Consolidated Annualized Operating Cash Flow" shall mean the
sum of (i) four times operating income of the Company and its Restricted
Subsidiaries for the most recently completed fiscal quarter (less cash dividends
and other cash distributions to the holders of minority interests in the
Company's Restricted Subsidiaries), before giving effect to depreciation,
amortization, equity in earnings (losses) of unconsolidated investees and
nonrecurring one-time charges and (ii) cash dividends and cash distributions
paid (other than extraordinary distributions) to the Company and its Restricted
Subsidiaries during the most recently completed fiscal quarter and the three
immediately preceding fiscal quarters by unconsolidated investees of the Company
and its Restricted Subsidiaries, all on a consolidated basis determined in
accordance with GAAP.
"Consolidated Debt" shall mean, as of any date and without
duplication, all Debt of the Company and its Restricted Subsidiaries on a
consolidated basis determined in accordance with GAAP, 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 its Restricted Subsidiaries, but only to the extent that the amount
of such liabilities for guaranties or standby letters of credit in the aggregate
exceed $50,000,000; provided further that (a) for purposes of this definition,
Debt shall not include guaranties by the Company 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, and (b) for purposes of
computing the Leverage Ratio at any time, the Consolidated Debt of the Company
and its Restricted Subsidiaries shall be reduced by the aggregate amount of cash
and cash equivalents of the Company and its Restricted Subsidiaries representing
the unused proceeds of debt and equity securities issued or assets sold after
the date hereof to finance acquisitions that have not yet been consummated and
to refinance any Debt scheduled to mature in 90 days.
"Conventional Borrowings" and individually, "Conventional
Borrowing", shall mean Borrowings by the Company under Section 2.01(a)
consisting of simultaneous Loans from the Banks.
"Conventional Loans" and individually, "Conventional Loan",
shall mean CD Rate Loans, Alternate Base Rate Loans or Eurodollar Loans made in
Dollars, pursuant to Section 2.01(a).
"Counsel for the Administrative Agent" shall mean Cravath,
Swaine & Xxxxx.
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"Counsel for the Company" shall mean Dow, Xxxxxx & Xxxxxxxxx,
PLLC.
"Xxx Enterprises" shall mean Xxx Enterprises, Inc., a Delaware
corporation.
"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, the Estate of Xxxxx X. Xxx, Xx., Xxxxxxx
Xxx Xxxxxxx, Xxxxxx Xxxxxxx, Xxxx Xxx Xxxxxxxx, and the estates, executors and
administrators, and children of the above-named individuals, and any
corporation, partnership, limited liability company, trust or other entity in
which the above-named trusts or individuals in the aggregate have a beneficial
interest of greater than 50%.
"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 1%, or the
Highest Lawful Rate.
"Depositary" shall have the meaning set forth in Section 13.03.
"Discount Debentures" means the Company's Exchangeable
Subordinated Discount Debentures due 2020 in an aggregate original principal
amount of $1,643,617,000 issued pursuant to the Prospectus Supplement.
"Discretionary Borrowings" and individually, "Discretionary
Borrowing", shall mean borrowings by the Company under Section 2.04 consisting
of Discretionary Loans.
"Discretionary Loans" and individually, "Discretionary Loan",
shall mean loans made by a Bank pursuant to Section 2.04.
"Dollars" and "$" 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 set forth in Section
2.01(e)(i).
"Eurodollar Loans" shall mean those Loans which may be made
under this Agreement and which are described in Section 2.01(d)(iii) 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 the relevant Conventional Borrowing, an
interest rate per annum equal to the per annum rate of interest determined by
the Administrative Agent to be the arithmetical average (rounded upward to the
nearest whole multiple of 0.01%, if such average is not such a multiple)
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of the rate per annum at which deposits in Dollars are offered by the Lending
Office of each Reference Bank to a prime bank in the interbank domestic
eurodollar market at 10:00 a.m. (New York, New York time) two Business Days
before the first day of such Interest Period for a period equal to such Interest
Period and in an amount substantially equal to the amount of the relevant
Eurodollar Loan of such Reference Bank during such Interest Period.
"Event of Default" shall mean any of the events specified in
Section 10; 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.
"Excess Margin Stock" shall mean that portion of the Margin
Stock owned by the Company and its Restricted Subsidiaries that must be excluded
from the assets subject to the restrictions of Sections 9.01 and 9.03 in order
for the Margin Stock subject to such Sections to represent less than 25% of the
value of the assets of the Company and its Restricted Subsidiaries on a
consolidated basis that are subject to such Sections.
"Existing Agreements" shall mean (a) the Amended and Restated
364-Day Credit Agreement dated as of October 9, 1997, as amended and restated as
of September 30, 1998 and as of September 28, 1999, among the Company, the banks
party thereto, The Chase Manhattan Bank (formerly known as Texas Commerce Bank
National Association), as administrative agent, and The Chase Manhattan Bank, as
documentation agent and (b) the Amended and Restated Five-Year Credit Agreement
dated as of October 9, 1997, as amended by the First Amendment dated as of
September 30, 1998 and the Amended and Restated Five-Year Credit Agreement dated
as of September 28, 1999, among the Company, the banks party thereto, The Chase
Manhattan Bank (formerly known as Texas Commerce Bank National Association), as
administrative agent, and The Chase Manhattan Bank, as documentation agent.
"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 nearest whole multiple of 1/100 of 1%) of the
rates on overnight Federal funds transactions with members of the Federal
Reserve System for such day quoted by the Reference Banks to the Administrative
Agent at 12:00 noon (New York, New York time) on such day.
"Fitch" shall mean Fitch, Inc.
"Five-Year Agreement" shall mean the Five-Year Credit
Agreement dated September 26, 2000, among the Company, certain lenders party
thereto and Chase, as Administrative Agent for the lenders.
"Floating Rate" shall mean, as of a particular date, the prime
rate most recently determined by Chase. 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. Chase may make commercial loans
or other loans at rates of interest at, above or below the Floating Rate.
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"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 set
forth in the opinions and pronouncements of the Accounting Principles Board and
the American Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board, or in such other
statements by such other entity as may be in general use by significant segments
of the accounting profession, which are applicable to the circumstances as of
the date of determination; 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 Banks request an
amendment to any provision hereof for 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.
"Granting Bank" has the meaning specified in Section 13.07(d).
"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 Bank pursuant to this Agreement under the laws applicable to such
Bank 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.
"Indenture" means 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 Second
Supplemental Indenture dated as of October 6, 1999, the Second Supplemental
Indenture dated as of March 14, 2000, and the Third Supplemental Indenture dated
as of April 19, 2000 (and as the same may be further supplemented from time to
time).
"Index Debt" shall mean senior, unsecured noncredit-enhanced,
long-term Debt of the Company.
"Indexed Securities" means the PHONES, the PRIZES, the
Discount Debentures and any other securities of the Company issued and
outstanding from time to time (a) that are accounted for as indexed debt
instruments pursuant to EITF Issue No. 86-28 or (b) indexed debt instruments
that contain embedded derivative financial instruments and are accounted for
pursuant to FASB Statement No. 133.
"Interest Payment Date" shall mean the last day of each
Interest Period.
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"Interest Period" shall mean, with respect to each Loan made
hereunder, the period commencing on the Borrowing Date of such Loan and
(a) in the case of CD Rate Loans, ending 30, 60, 90 or 180 days
thereafter;
(b) in the case of Alternate Base Rate Loans, ending not less than one
nor more than 90 days thereafter; and
(c) in the case of Eurodollar Loans, ending 7 days (subject to
availability from each Bank) or one, two, three or six months thereafter;
in each case as the Company may select in the Notice of Conventional Borrowing;
provided, however, that (i) no Interest Period for a Conventional Loan may be
chosen that would 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 and (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. In
no event shall there be more than ten (10) Interest Periods in effect at any one
time.
"Lending Office" shall mean, with respect to any Bank, its
principal office in the city identified with such Bank in Exhibit 13.02 hereto,
or such other office or branch of such Bank, or Affiliate of such Bank located
in the United States (acting on behalf of such Bank as its "Lending Office"
hereunder), as it shall designate in writing from time to time to the Company,
as the case may be.
"Leverage Ratio" shall mean, at any time, the ratio of (a)
Consolidated Debt as of the last day of the fiscal quarter most recently ended
to (b) Pro-forma Consolidated Annualized Operating Cash Flow; provided that (i)
so long as the Company is the beneficial owner of shares or other securities
constituting, or convertible into or exchangeable for the Maximum Number of
Reference Shares (as defined in Section 3 of the global notes evidencing the
PRIZES) with respect to the outstanding PRIZES (excluding, for purposes of such
determination, any shares or other securities in respect of which any other
Indexed Securities shall have been issued and shall be outstanding and excluding
any portion of any shares or other securities attributable to any additional
consideration payable upon any such conversion or exchange), the computation of
the Leverage Ratio shall exclude the PRIZES, (ii) so long as the Company is the
beneficial owner of shares or other securities constituting, or convertible into
or exchangeable for 4,477,000 Reference Shares (as defined in Section 101 of the
PHONES Supplemental Indenture) with respect to the outstanding PHONES
(excluding, for purposes of such determination, any shares or other securities
in respect of which any other Indexed Securities shall have been issued and
shall be outstanding and excluding any portion of any shares or other securities
attributable to any additional consideration payable upon any such conversion or
exchange), the computation of the Leverage Ratio shall exclude the PHONES, and
(iii) so long as the Company is the beneficial owner of shares or other
securities constituting, or convertible into or exchangeable for at least the
maximum number at any time of the securities underlying any other class of
Indexed
15
9
Securities in respect of which claims may be made by the holders of such Indexed
Securities (excluding, for purposes of such determination, any shares or other
securities in respect of which any other Indexed Securities shall have been
issued and shall be outstanding and excluding any portion of any shares or other
securities attributable to any additional consideration payable upon any
conversion or exchange), the computation of the Leverage Ratio shall exclude any
effects on the amount of the Indexed Securities of such class arising as a
result of xxxx-to-market entries made in respect of fluctuations in the fair
value of the securities underlying such Indexed Securities, or fluctuations in
the fair value of any derivative financial instruments embedded in such Indexed
Securities, but shall in any event include the original principal amount and any
accreted principal amount of the Indexed Securities of such class.
"Loans" and individually, "Loan", shall mean Conventional
Loans and Discretionary Loans.
"Majority Banks" shall mean (a) except as provided in clause
(b) below, Banks having more than 50% of the aggregate Commitments, and (b) for
the period after the Termination Date until such time as the obligations under
this Agreement are paid in full, and for purposes of making determinations under
Article X, Banks having more than 50% of the aggregate principal amount of Loans
outstanding.
"Margin Percentage" shall mean at any date that percentage (a)
to be added to the CD Rate or the Eurodollar Rate, as appropriate, pursuant to
Section 2.01(d)(i) or Section 2.01(d)(iii), for purposes of determining the per
annum rate of interest applicable from time to time to CD Rate Loans or
Eurodollar Loans and (b) to be used in computing the Commitment Fee pursuant to
Section 4.01, set forth under the appropriate column below opposite the Category
corresponding to the Company's corporate credit ratings by S&P, Xxxxx'x or
Fitch, respectively, on such date:
Commitment Eurodollar
Rating Fee Spread CD Spread
------ --- ---------- ---------
Category 1 >A-/A3/A- 0.090% 0.400% 0.525%
-
Category 2 BBB+/Baa1/ 0.100% 0.500% 0.625%
BBB+
Category 3 BBB/Baa2/ 0.125% 0.625% 0.750%
BBB
Category 4 BBB-/Baa3/ 0.150% 0.750% 0.875%
BBB-
Category 5
