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EXHIBIT 10.1
364-DAY
CREDIT AGREEMENT
dated as of September 26, 2000
by and among
COX 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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COX COMMUNICATIONS, INC.
TABLE OF CONTENTS
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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
<PAGE> 7
THIS 364-DAY CREDIT AGREEMENT (the "Agreement") made
as of the 26th day of September 2000, is among COX
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 Cox 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, Cox 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 Cox 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 Cox Enterprises.
"Chase" shall mean The Chase Manhattan Bank, a New York
banking corporation having its principal offices located at 270 Park Avenue, New
York, New York 10017.
"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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4
"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 mark-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 & Moore.
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5
"Counsel for the Company" shall mean Dow, Lohnes & Albertson,
PLLC.
"Cox Enterprises" shall mean Cox Enterprises, Inc., a Delaware
corporation.
"Cox Family" shall include those certain trusts commonly
referred to as the Dayton-Cox Trust A, the Barbara Cox Anthony Atlanta Trust,
the Anne Cox Chambers Atlanta Trust, the Estate of James M. Cox, Jr., Barbara
Cox Anthony, Garner Anthony, Anne Cox Chambers, 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)
<PAGE> 12
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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.
<PAGE> 13
7
"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.
<PAGE> 14
8
"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
<PAGE> 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 mark-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, Moody's or
Fitch, respectively, on such date:
<TABLE>
<S> <C> <C> <C> <C>
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 <BB+/Ba1/ 0.200% 1.000% 1.125%
-
BB+
</TABLE>
For purposes of the foregoing, (i) if one of S&P, Moody's or
Fitch 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 ratings of the other two rating
agencies; (ii) if two of the three corporate credit ratings established or
deemed to have been established by S&P, Moody's or Fitch for the Company shall
fall within the same Category but the third corporate credit rating falls within
a different Category from the other two ratings, the Margin Percentage shall be
based on the two ratings that fall within the same Category; (iii) if all three
of the corporate credit ratings established or deemed to have
<PAGE> 16
10
been established by S&P, Moody's or Fitch for the Company shall fall within
different Categories from one another, the Margin Percentage shall be based on
the Category next below that corresponding to the highest of the three ratings;
and (iv) if the corporate credit ratings established or deemed to have been
established by S&P, Moody's or Fitch for the Company shall be changed (other
than as a result of a change in the rating system of S&P, Moody's or Fitch),
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, Moody's or Fitch shall change, or if any such rating
agency shall cease to be in the credit rating business, the Company and the
Banks 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 FCC Licenses" shall have the meaning set forth 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.
"Materially Adverse Effect" shall mean (a) a materially
adverse effect on the business, operations, condition (financial or otherwise)
or assets of the Company and its Restricted Subsidiaries taken as a whole or (b)
material impairment of the rights or interests of the Banks in connection with
this Agreement.
"Maturity Date" shall mean the Termination Date, unless the
Company shall give the Notice of Extension contemplated by Section 2.01(i), in
which case the Maturity Date shall mean September 26, 2004.
"Maximum Permissible Rate" shall have the meaning set forth in
Section 13.05.
"Moody's" shall mean Moody's Investors Service, Inc.
"Net Cash Proceeds" shall mean (a) with respect to a sale,
assignment, transfer or other disposition by the Company or any of its
Restricted Subsidiaries to any Person other than the Company or any of its
Restricted Subsidiaries of any capital stock or assets owned by such party, the
gross cash proceeds to such party (including cash proceeds, whenever received,
of any non-cash consideration) of such sale, assignment, transfer or other
disposition, less the sum of (i) the reasonable costs associated with such sale,
assignment, transfer or other disposition, including income taxes (as estimated
by the Company or any of its Restricted Subsidiaries, as the case may be, in
good faith), (ii) payments of the outstanding principal amount of, premium or
penalty, if any, and interest on any Debt required to be, and which in fact is,
prepaid under the terms thereof as a result of such disposition and (iii)
appropriate amounts as a reserve, in accordance with GAAP, against any
liabilities directly associated with the capital stock or assets sold and which
liabilities are retained by the Company or any of its Subsidiaries after such
sale, assignment, transfer or other disposition, including, without limitation,
pension and other post-
<PAGE> 17
11
employment benefit liabilities and liabilities related to environmental matters
or against any indemnification obligations associated with such sale,
assignment, transfer or disposition and (b) with respect to any incurrence of
Debt, cash proceeds net of underwriting commissions or placement fees and
expenses directly incurred in connection therewith.
"Notice of Conventional Borrowing" shall have the meaning set
forth in Section 2.01(b).
"Officer's Certificate" shall mean a certificate signed in the
name of the Company by either its Chief Executive Officer, its President, its
Chief Financial Officer, one of its Vice Presidents or its Treasurer.
"Pay Units" shall mean the aggregate number of premium
services received by Basic Subscribers on a primary outlet.
"PBGC" shall have the meaning set forth in Section 6.12.
"Person" shall mean an individual, partnership, joint venture,
corporation, limited liability company, bank, trust, unincorporated organization
and/or a government or any department or agency thereof.
"PHONES" means the Company's Exchangeable Subordinated
Debentures due 2030 in an aggregate original principal amount of $275,000,000
issued pursuant to the Prospectus Supplement.
"PHONES Supplemental Indenture" means the Second Supplemental
Indenture dated as of March 14, 2000 between the Company and the Bank of New
York, as Trustee.
"Plan" shall mean any employee pension benefit plan within the
meaning of Article 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 414(b) and (c) 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 Period" shall mean any period during which the
ratio of (x) the sum of the average daily principal amount of the Loans
outstanding under this Agreement and the Five-Year Agreement and any outstanding
commercial paper in respect of which Commitments under this Agreement or the
Five-Year Agreement are used to provide backup liquidity, each during the most
recently ended fiscal quarter to (y) Pro-forma Consolidated Annualized Operating
Cash Flow exceeds 4.5 to 1.0
"PRIZES" means the Company's Exchangeable Subordinated
Debentures due 2029 in an aggregate original principal amount of $1,272,187,500
issued pursuant to the Prospectus Supplement.
<PAGE> 18
12
"Pro-forma Consolidated Annualized Operating Cash Flow" shall
mean Consolidated Annualized Operating Cash Flow, excluding therefrom all
Consolidated Annualized Operating Cash Flow attributable to any Property sold or
otherwise disposed of other than in the ordinary course of business during any
applicable fiscal quarter as if such Property were not owned at any time during
such quarter, and including therein all Consolidated Annualized Operating Cash
Flow attributable to any Property acquired other than in the ordinary course of
business during any applicable fiscal quarter as if such Property were at all
times owned during such quarter.
"Property" shall mean all types of real and personal property,
whether tangible, or intangible or mixed.
"Pro Rata Share" shall mean, with respect to any Bank, 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 a principal
amount equal to such Bank's Commitment, and (b) the denominator of which shall
be the aggregate principal amount equal to all Banks' Commitments; provided that
following the Termination Date, Pro Rata Share shall mean, with respect to any
Bank, a fraction (expressed as a percentage rounded upward, if necessary, to the
nearest whole multiple of 0.000000001%) (x) the numerator of which shall be the
aggregate principal amount of such Bank's outstanding Conventional Loans and (y)
the denominator of which shall be the aggregate principal amount of all
outstanding Conventional Loans.
"Prospectus Supplement" means, with respect to the (a) PHONES,
the prospectus supplement dated as of March 8, 2000, to the Company's prospectus
dated as of August 9, 1999, (b) PRIZES, the prospectus supplement dated as of
November 22, 1999, to the Company's prospectus dated as of August 9, 1999, and
(c) Discount Debentures, the prospectus supplement dated as of April 13, 2000,
to the Company's prospectus dated as of August 9, 1999.
"Quarterly Date" shall mean the last day of each March, June,
September and December, beginning with December 31, 2000, or if any such date is
not a Business Day, the next succeeding Business Day.
"Reference Banks" and individually "Reference Bank", shall
mean Chase, Bank of America National Trust and Savings Association, The Bank of
New York and Wachovia Bank, N.A..
"Register" shall have the meaning set forth in Section
13.07(e) hereof.
"Regulation D" shall mean Regulation D of the Board of
Governors of the Federal Reserve System.
"Required Prepayment Date" shall have the meaning set forth in
Section 2.01(e)(i) hereof.
"Restricted Payment" shall have the meaning set forth in
Section 9.04.
"Restricted Subsidiary" shall mean each Subsidiary other than
those Subsidiaries identified as Unrestricted Subsidiaries in Exhibit 6.01;
provided, however, that subject to Section 8.11, 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
<PAGE> 19
13
Subsidiary and the Company shall promptly notify the Administrative Agent of any
such designation or redesignation; provided further that after the initial
designation of an Unrestricted Subsidiary by the Company, only three further
redesignations of such Subsidiary shall be permitted.
"S&P" shall mean Standard and Poor's Ratings Group.
"SPC" has the meaning specified in Section 13.07(d).
"Special FCC Counsel" shall mean Dow, Lohnes & Albertson, PLLC
"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 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.
"Termination Date" shall mean September 25, 2001.
"Unrestricted Subsidiary" means any Subsidiary so designated
in accordance with the terms of this Agreement.
"Utilization Fee" shall have the meaning set forth in Section
4.01(b).
"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.
ARTICLE II The Loans
SECTION 2.01. Revolving Credit Loans. (a) Conventional Loan
Commitment. Subject to and upon the terms and conditions set forth in this
Agreement, each Bank severally agrees to make Conventional Loans to the Company
on any one or more Business Days on or after the date hereof and prior to the
Maturity Date, up to an aggregate principal amount of Conventional Loans not
exceeding at any one time outstanding an amount equal to (i) such Bank's
Commitment made to the Company by such Bank, if any, if such Loan is to be made
on or prior to the Termination Date, or (ii) the aggregate principal amount of
such Bank's outstanding Conventional Loans being repaid on such day pursuant to
Section 3.01, if any, if such Loan is to be made after the Termination Date;
provided, however, in no event shall the aggregate outstanding principal amount
at any time of Conventional Loans and Discretionary Loans exceed $1,500,000,000,
as such amount may be reduced pursuant to the terms of this Agreement. Each
Conventional Borrowing shall be in an aggregate amount of not less than
$3,000,000 and an integral multiple of $250,000. Subject to the foregoing, each
Conventional Borrowing shall be made simultaneously from the Banks according to
their Pro Rata Shares of the principal amount requested for each Conventional
Borrowing, and shall consist of Conventional Loans of the same type (e.g.,
Alternate Base Rate Loans, CD Rate Loans or Eurodollar Loans) with the same
Interest Period from each Bank. Within such limits and during such period, the
Company may borrow, repay and reborrow under this Section 2.01(a) (including,
without limitation, reborrowings for the sole purpose of refinancing any Loan).
The
<PAGE> 20
14
Company hereby unconditionally promises to pay to the Administrative Agent for
the account of each Bank the then unpaid principal amount of each Conventional
Loan on the Interest Payment Date for such Conventional Loan.
(b) Conventional Borrowing Procedures; Delivery of Proceeds;
Recordation of Loans. (i) Each Conventional Borrowing under this Section 2.01
shall be made on at least, (A) in the case of a Conventional Borrowing
consisting of Alternate Base 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 12:00 noon (New York, New York time) on the date such notice is
received by the Administrative Agent) provide oral or written notice of the
requested borrowing to the Banks, and each Reference Bank shall then provide to
the Administrative Agent not later than 12:15 p.m. (New York, New York time)
oral or written notice of the rate on overnight Federal funds for such day
offered at 12:00 noon (New York, New York time) by such Reference Bank to the
Company, and the Alternate Base Rate determined by the Administrative Agent
shall be conveyed by the Administrative Agent by oral or written communication
to all of the Banks by 1:00 p.m. (New York, New York time) on the Borrowing
Date, (B) in the case of a Conventional Borrowing consisting of CD Rate Loans,
one Business Day's prior written or oral notice from the Company to the
Administrative Agent by 10:00 a.m. (New York, New York time) and (C) in the case
of a Conventional 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) and (C) above, provide to each Bank prior oral or written notice of
the requested borrowing by 11:30 a.m. (New York, New York time) on the date such
notice is received by the Administrative Agent) ("Notice of Conventional
Borrowing"); provided, however, with respect to each oral Notice of Conventional
Borrowing, the Company shall deliver promptly (and in any event, no later than
two Business Days after the giving of such oral notice) to the Administrative
Agent a confirmatory written Notice of Conventional Borrowing. Each Notice of
Conventional Borrowing shall be irrevocable and shall specify: (w) the total
principal amount of the proposed Conventional Borrowing, (x) whether the
Conventional Borrowing will be comprised of CD Rate Loans, Alternate Base Rate
Loans or Eurodollar Loans, (y) the applicable Interest Period for such Loans
(which may not extend beyond the Maturity Date), and (z) the Borrowing Date. The
Administrative Agent shall promptly give like notice to the other Banks, and on
the Borrowing Date each Bank shall make its Pro Rata Share of the Conventional
Borrowing available at the principal banking office of the Administrative Agent,
270 Park Avenue, New York, New York 10017, no later than 3:30 p.m. (New York,
New York time) in the case of a Conventional Borrowing consisting of Alternate
Base Rate Loans, and no later than 2:00 p.m. (New York, New York time) in the
case of all other Conventional Borrowings, in each case, in immediately
available funds.
(ii) The Administrative Agent shall pay or deliver the
proceeds of each Borrowing to or upon the order of the Company. Each Bank shall
maintain in accordance with its usual practice an account or accounts evidencing
the indebtedness to such Bank resulting from each Loan, from time to time,
including the amounts of principal and interest payable and paid such Bank from
time to time under this Agreement. The Administrative Agent shall maintain
accounts in which it will record (A) the principal amount of each Loan made
hereunder, the type of each Loan and the Interest Period applicable thereto, (B)
the amount of any principal or interest due and payable or to become due and
payable from the Company to each Bank hereunder and (C) the amount of any sum
received by the Administrative Agent hereunder from the Company and each Bank's
Pro Rata Share thereof. The entries made in the accounts
<PAGE> 21
15
maintained pursuant to this paragraph shall be prima facie evidence of the
existence and amounts of the obligations therein recorded; provided, however,
that the failure of any Bank or the Administrative Agent to maintain such
accounts or any error therein shall not in any manner affect the obligation of
the Company to repay the Loans in accordance with their terms.
(c) 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 (i) the Majority Banks in their discretion
shall determine with respect to Eurodollar Loans to be made by them on the
applicable Borrowing Date of such Loan that there is a reasonable probability
that Dollar deposits will not be offered to such Banks 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 Bank's Eurodollar Loan in Dollars or
(ii) the Administrative Agent in its discretion shall determine with respect to
CD Rate Loans to be made by the Banks on the applicable Borrowing Date of such
proposed Loan that bid rates will not be provided by certificate of deposit
dealers of recognized standing for the purchase at face value of certificates of
deposit of the Reference Banks for a period of time equal to the applicable
Interest Period in amounts approximately equal or comparable to the aggregate
principal amount of such Loans with a maturity equal to the applicable Interest
Period, then:
(A) the Majority Banks (acting through the Administrative Agent) or the
Administrative Agent, as the case may be, shall give the Company notice thereof
and in the case of subsection (ii) above, the Administrative Agent shall also
give the Banks notice thereof, and
(B) Alternate Base Rate Loans shall be made having an Interest Period
of 10 days in lieu of any Eurodollar Loans or CD Rate Loans, as the case may be,
that were to have been made at such time.
(d) Interest. The Loans shall bear interest as follows:
(i) Each CD 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 CD Rate plus the applicable Margin
Percentage, or (B) the Highest Lawful Rate.
(ii) 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) which shall be equal to the
lesser of (A) the Alternate Base Rate, or (B) the Highest Lawful Rate.
(iii) 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.
(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
<PAGE> 22
16
in full and shall be due and payable (A) on the Interest Payment Date for each
such 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, (C) as to any CD Rate Loan having an Interest Period greater than 90 days,
on the 90th day of the Interest Period for such Loan, and (D) as to all Loans,
at maturity, whether by acceleration or otherwise, or after notice of prepayment
in accordance with Section 2.01(e)(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, whether pursuant to acceleration or 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 and shall be due and
payable upon demand.
(e) Change of Law. (i) Anything in this Agreement to the
contrary notwithstanding, if at any time any Bank in good faith determines
(which determination shall be conclusive) 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 Bank or its foreign branch or
branches to maintain or fund any Loan in Dollars by means of Dollar deposits
obtained in the interbank eurodollar market then, at the option of such Bank,
the aggregate principal amount of each of such Bank's Eurodollar Loans then
outstanding, which Loans are directly affected by such Eurodollar Events shall
be prepaid in Dollars and any remaining obligation of such Bank hereunder to
make Eurodollar Loans (but not CD Rate Loans or Alternate Base Rate Loans) shall
be suspended for so long as such Eurodollar Events shall continue. Upon the
occurrence of any Eurodollar Event and at any time thereafter so long as such
Eurodollar Event shall continue, such Bank 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 2.01(e)
shall be made, together with accrued and unpaid interest and all other amounts
payable to such Bank under this Agreement with respect to such prepaid Loan
(including, without limitation, amounts payable pursuant to Section 2.01(f)), 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 2.01(e), the Banks agree that at the written request of the
Company, the Bank that has made such Eurodollar Loan shall make an Alternate
Base Rate Loan or a CD Rate Loan on the Required Prepayment Date to the Company
in the same principal amount, in Dollars as the Eurodollar Loan of such Bank
being so prepaid. Any such written request by the Company for Alternate Base
Rate Loans or CD Rate Loans under this Section 2.01(e) 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 Bank amounts with respect to any Borrowing pursuant to
Section 2.01(e)(i), the Company may give notice to such Bank (with copies to the
Administrative Agent) that it wishes to seek one or more assignees (which may be
one or more of the Banks) to assume the Commitment of such Bank and to purchase
its outstanding Loans and the Administrative Agent will use its best
<PAGE> 23
17
efforts to assist the Company in obtaining an assignee; provided that if more
than one Bank requests that the Company pay substantially and proportionately
equal additional amounts under Section 2.01(e)(i) and the Company elects to seek
an assignee to assume the Commitments of any of such affected Banks, the Company
must seek an assignee or assignees to assume the Commitments of all of such
affected Banks. Each Bank requesting compensation pursuant to Section 2.01(e)(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 in
Dollars plus all other fees and amounts (including, without limitation, any
compensation claimed by such Bank under Section 2.01(e)(i) and Section 2.01(f))
due such Bank hereunder calculated, in each case, to the date such Commitment,
Loans and interest are purchased. Upon such sale or prepayment, each such Bank
shall have no further Commitment or other obligation to the Company hereunder.
(f) Funding Losses. In the event of (i) any payment or
prepayment (whether authorized or required hereunder pursuant to acceleration or
otherwise) of all or a portion of any CD Rate Loan or Eurodollar Loan on a day
other than an Interest Payment Date, (ii) any payment or prepayment (whether
authorized or required hereunder pursuant to acceleration or otherwise), of any
CD Rate Loan or Eurodollar Loan made after the delivery of the Notice of
Conventional Borrowing for such CD Rate Loan or Eurodollar Loan, but before the
Borrowing Date therefor, if such payment or prepayment prevents such CD Rate
Loan or Eurodollar Loan from being made in full or (iii) the failure of any Loan
to be made by any Bank due to any condition precedent to a Loan not being
satisfied or as a result of this Section 2.01 or due to any other action or
inaction of the Company, the Company shall pay, in Dollars, to each affected
Bank 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 Bank for any direct or indirect costs and losses
incurred by such Bank (including, without limitation, such amount or amounts as
will compensate it for the amount by which the rate of interest on such Loan
immediately prior to such repayment exceeds the Eurodollar Rate or the CD Rate,
as the case may be, for the period from the date of such prepayment to the
Interest Payment Date with respect to such prepaid Loan, but otherwise without
penalty. Any such claim by a Bank for compensation shall be made through the
Administrative Agent and shall be accompanied by a certificate signed by an
officer of such Bank authorized to so act on behalf of such Bank, setting forth
the computation upon which such claim is based. The obligations of the Company
under this Section 2.01(f) shall survive the termination of this Agreement
and/or the payment of the obligations hereunder.
(g) Increased Costs--Taxes, Reserve Requirements, etc. (i) The
Company for and on behalf of each Bank shall pay or cause to be paid directly to
the appropriate governmental authority or shall reimburse or compensate each
Bank upon demand by such Bank, acting through the Administrative Agent, for all
costs incurred, losses suffered or payments made, as determined by such Bank, 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), levies, imposts or any other charge of any nature whatsoever
imposed by any taxing authority, 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 such taxes as may be measured by
the overall net income of a Bank or its Lending Office and any increase in
franchise taxes imposed by the jurisdiction, or any political subdivision or
taxing authority thereof, in which such Bank's principal executive office or its
Lending Office is located.
<PAGE> 24
18
(ii) The Company shall pay immediately upon demand by any
Bank, acting through the Administrative Agent, any applicable stamp and
registration taxes, duties, official and sealed paper taxes, or similar charges
due, or which under currently applicable law could in the future become due, or
which may in the future become due as a result of any change in applicable law,
the interpretation thereof, or otherwise, in connection with any Loans or this
Agreement or in connection with the enforcement hereof.
(iii) If any Bank or the Administrative Agent receives a
refund in respect of taxes for which such Bank 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,
repay such refund to the Company with interest if any interest is received
thereon by such Bank or the Administrative Agent; provided that the Company,
upon the request of such Bank or the Administrative Agent, agrees to return such
refund (plus penalties, interest or other charges) to such Bank or the
Administrative Agent in the event such Bank or the Administrative Agent is
required to repay such refund.
(iv) (A) The Company shall reimburse or compensate each Bank
upon demand by such Bank, acting through the Administrative Agent, for all costs
incurred, losses suffered or payments made in connection with any CD Rate Loans,
Eurodollar Loans or any part thereof which costs, losses or payments are a
result of any present or future reserve, special deposit or similar requirement
against assets of, liabilities of, deposits with or for the account of, or Loans
by such Bank imposed on such Bank, 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 or (z) the
compliance with any request 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 Bank of agreeing to make or making, funding or maintaining
Loans for which such Bank shall not have been reimbursed pursuant to the
provisions of clause (A) above, then the Company shall from time to time, upon
demand by such Bank, acting through the Administrative Agent, pay to such Bank
additional amounts sufficient to indemnify such Bank against the full amount of
such increased cost.
(C) Any Bank claiming reimbursement or compensation under this
Section 2.01(g)(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, who in turn shall
provide the Company, with a written statement of the amount and basis of its
request, which statement, subject to Section 2.01(h), shall be conclusive absent
manifest error; provided that in the event any reimbursement or compensation
demanded by a Bank under this Section 2.01(g) 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 Bank in the
form of Exhibit 2.01(g)(iv) attached hereto. No Bank may request reimbursement
or compensation under this Section 2.01(g)(iv) for any period prior to the
period for which demand has been made in accordance with the foregoing sentence.
Such statement shall be conclusive and binding on the Company, subject to
Section 2.01(h), except in the case of manifest error. In preparing any
statement delivered under this Section 2.01(g)(iv), such Bank may employ such
assumptions and allocations of costs and expenses as it shall in good faith deem
reasonable and may be determined by any reasonable
<PAGE> 25
19
averaging and attribution method. So long as any notice requirement provided for
herein has been satisfied, any decision by the Administrative Agent or any Bank
not to require payment of any interest, cost or other amount payable under this
Section 2.01(g)(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 Bank'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 Bank shall have determined in good faith that any
applicable law, rule, regulation or guideline regarding capital adequacy now or
hereafter in effect, or any change therein, or any change in the interpretation
or administration thereof by any governmental authority, central bank or
comparable agency charged with the interpretation or administration thereof, or
compliance by any Bank (or any Lending Office of such Bank) with any request or
directive regarding capital adequacy (whether or not having the force of law) of
any such governmental authority, central bank or comparable agency has the
effect of reducing the rate of return on such Bank's capital or the capital of
any corporation controlling such Bank as a consequence of its obligations
hereunder to a level below that which such Bank would have achieved as a
consequence of its obligations hereunder but for such adoption, change or
compliance (taking into consideration such Bank's policies with respect to
capital adequacy) by an amount deemed in good faith by such Bank to be material,
then from time to time, upon notice by the Bank requesting (through the
Administrative Agent) compensation, under this Section 2.01(g)(v) within a
reasonable period of time after such Bank has obtained knowledge of such event,
the Company shall pay to the Administrative Agent for the account of such Bank
such additional amount or amounts as will compensate such Bank for such
reduction. Any such claim by a Bank for compensation shall be made through the
Administrative Agent and shall be accompanied by a certificate signed by an
officer of such Bank authorized to so act on behalf of such Bank setting forth
the calculation upon which such claim is based.
(vi) Notwithstanding the foregoing, in the event the Company
is required to pay to any Bank amounts pursuant to Section 2.01(g)(iv)(A),
Section 2.01(g)(iv)(B) or Section 2.01(g)(v), the Company may give notice to
such Bank (with copies to the Administrative Agent) (A) that it wishes to seek
one or more assignees (which may be one or more of the Banks) to assume the
Commitment of such Bank and to purchase its outstanding Loans, in which case the
Administrative Agent will use its best efforts to assist the Company in
obtaining an assignee, or (B) in the case of any Bank that became a Bank
pursuant to an assignment under Section 13.07, that it wishes to terminate the
Commitment of such Bank; provided that if more than one Bank requests that the
Company pay substantially and proportionately equal additional amounts under
Section 2.01(g)(iv)(A), Section 2.01(g)(iv)(B) or Section 2.01(g)(v) and the
Company elects to seek an assignee to assume, or to terminate, the Commitments
of any of such affected Banks, the Company must seek an assignee or assignees to
assume, or must terminate, as the case may be, the Commitments of all of such
affected Banks. Each Bank requesting compensation pursuant to Section
2.01(g)(iv)(A), Section 2.01(g)(iv)(B) or Section 2.01(g)(v) 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, and
agrees that its Commitment shall be terminated as provided above upon payment to
it by the Company of, the outstanding unpaid principal of and accrued interest
on its outstanding Loans in Dollars plus all other fees and amounts (including,
without limitation, any compensation claimed by such Bank under Section 2.01(f),
Section 2.01(g)(iv)(A), Section 2.01(g)(iv)(B) or Section 2.01(g)(v)) due such
Bank hereunder calculated, in each case, to the date such Commitment, Loans and
interest are purchased or such amounts are paid, as the
<PAGE> 26
20
case may be. Upon such sale or prepayment, each such Bank shall have no further
Commitment or other obligation to the Company hereunder.
(vii) Any Bank claiming any amounts pursuant to this Section
2.01(g) 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 2.01(g), 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 Bank, such change would be materially disadvantageous to such Bank.
(viii) The aggregate amount payable, reimbursable or
compensable by the Company to or for the account of a Bank under this Section
2.01(g) shall not include any cost covered by the amount received by such Bank
from the Company through the Administrative Agent in connection with the
calculation of the CD Rate. The Company agrees to indemnify and hold the
Administrative Agent and each Bank harmless from and against any and all
liabilities with respect to or resulting from any delay in the payment or
omission to pay such amounts. The obligations of the Company under this Section
2.01(g) created in accordance with this Section 2.01(g) shall survive the
termination of the Commitments and/or this Agreement and/or the payment of the
obligations hereunder.
(h) Calculation Errors. Each calculation by the Administrative
Agent or any Bank 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 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 Bank that received an overpayment or underpayment
or (ii) the Company, as the case may be, shall promptly refund or pay, as the
case may be, to the other any such overpayment or underpayment. In the event it
is determined within a reasonable time that any Bank, acting through the
Administrative Agent, has miscalculated any amount for which it has demanded
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
Bank 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 or the Utilization Fee due under Section 4.01
which results in the Company paying more or less than the amount which would
have been due and payable but for such error, (y) any Bank that received an
overpayment or underpayment or (z) the Company, as the case may be, shall
promptly refund or pay, as the case may be, the full amount of the overpayment
or underpayment.
(i) Extension of Maturity Date; Required Prepayments. The
Company may, at its sole option, at any time not sooner than the 30th Business
Day prior to the Termination Date and not later than the 15th Business Day prior
to the Termination Date, deliver to the Administrative Agent written notice
extending the Maturity Date, in which event the Commitments shall terminate on
the Termination Date but the Maturity Date for Conventional Loans outstanding on
the Termination Date shall be extended to September 26, 2004. Following the
Termination Date, the first proviso to Section 3.02(b)(ii) shall have no effect.
After the Termination Date, references in Sections 2.01(e)(ii), 2.01(g)(vi),
13.03 and 13.07(c) to "Commitments" shall be deemed to be references to "Loans",
as the sense of the applicable provisions may require.
<PAGE> 27
21
Loans repaid or prepaid after the Termination Date may not be reborrowed (except
in the case of a refinancing of a Loan with another Loan at the time of such
prepayment).
SECTION 2.02. 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
contemplated in Section 2.03 below) for any present or future tax, levy, impost,
or any other charge, if any, of any nature whatsoever now or hereafter imposed
by any governmental authority (including, without limitation, withholdings of
United States taxes, except as otherwise provided in Section 2.03). Except as
specifically provided in Section 2.03 below, if the making of such payments is
prohibited by law unless such tax, levy, impost, or other charge is deducted or
withheld therefrom, the Company shall pay to the Administrative Agent for the
account of each Bank, on the date of each such payment, such additional amounts
as may be necessary in order that the net amounts received by such Bank after
such deduction or withholding shall equal the amounts in Dollars which would
have been received if such deduction or withholding were not required. The
Company shall confirm that all applicable 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. Upon request of any Bank, the
Administrative Agent shall forward to such Bank a copy of such official receipt
or a copy of such notarized copy of such receipt.
SECTION 2.03. Withholding Tax Exemption . 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 Banks, if any Bank is not
incorporated or organized under the laws of the United States of America, or a
state thereof, such Bank agrees that it will deliver to the Company (with a copy
to the Administrative Agent) a duly completed copy of United States Internal
Revenue Service Form W-8BEN or W-8ECI, certifying in either case that such Bank
is entitled to receive payments under this Agreement without deduction or
withholding of any United States Federal income taxes. If such Bank delivers a
Form W-8BEN or W-8ECI, such Bank further undertakes to deliver to the Company
(with a copy to the Administrative Agent) an additional copy of such form (or a
successor form) on or before the date that such form expires (currently, three
successive calendar years for Form W-8BEN and one calendar year for Form W-8ECI)
or becomes obsolete or after the occurrence of any event requiring a change in
the most recent forms so delivered by it, and such amendments thereto or
extensions or renewals thereof as may be reasonably requested by the Company, in
each case certifying that such Bank is entitled to receive payments under this
Agreement without deduction or withholding of any United States Federal income
taxes, unless an event (including, without limitation, any change in treaty, law
or regulation) has occurred prior to the date on which any such delivery would
otherwise be required which renders all such forms inapplicable or which would
prevent such Bank from duly completing and delivering any such form with respect
to it and such Bank advises the Company (and the Administrative Agent) that it
is not capable of receiving payments without any deduction or withholding of
United States Federal income tax. In no event will any withholding by the
Company of interest payable by any Bank as contemplated by this Section 2.03
give rise to a Default under Section 10.01 with respect to payments of interest.
SECTION 2.04. Discretionary Loans . (a) Each Bank may, in its
sole discretion and on terms and conditions in writing satisfactory to it and
the Company that are not inconsistent with the provisions of this Agreement,
make additional Loans to the Company
<PAGE> 28
22
under its Commitment in Dollars on any one or more Business Days on or after the
date hereof and prior to the Termination Date, which Discretionary Loans will be
payable to the appropriate Bank upon such terms and conditions; provided,
however, that the Company will not permit to remain outstanding any
Discretionary Loans from any Bank, and no Bank will make any Discretionary Loans
to the Company, if the aggregate principal amount of the Discretionary Loans and
the Conventional Loans payable to such Bank exceeds such Bank's Commitment.
Should any Discretionary Loan be outstanding from any Bank on a date on which a
Conventional Borrowing is to be made, such Conventional Borrowing shall be made
available only if the Company has paid or shall, simultaneously with the making
of such Conventional Borrowing, pay such portions of Discretionary Loans
(including, without limitation, the payment of the amount of any losses payable
pursuant to Section 2.01(f) actually incurred by such Bank as a result of such
prepayment) as shall be necessary to make available a portion of each Bank's
Commitment at least equal to such Bank's Pro Rata Share of such Conventional
Borrowing. No Discretionary Loan shall have a maturity date or interest period
that extends beyond the Termination Date. Each Bank shall maintain in accordance
with its usual practice an account or accounts evidencing the indebtedness to
such Bank resulting from each Discretionary Loan made by such Bank. The entries
made in the accounts maintained pursuant to this Section 2.04 (a) shall be prima
facie evidence of the existence and amounts of the obligations therein recorded;
provided, however, that the failure of any Bank to maintain such accounts or any
error therein shall not in any manner affect the obligation of the Company to
repay the Discretionary Loans in accordance with their terms. The Company hereby
unconditionally promises to pay to each Bank the then unpaid principal amount of
each Discretionary Loan made by such Bank on the earlier of the Maturity Date
and the date on which such principal amount is due pursuant to the terms of such
Discretionary Loan.
(b) Promptly upon written request of the Administrative Agent,
each Bank will certify in writing the borrowing date, the principal amount in
Dollars and the maturity date of any Discretionary Loans made during any period
for which the Commitment Fees and the Utilization Fee under Section 4.01 are to
be calculated. The Company agrees to certify to the Administrative Agent on or
before each Quarterly Date the Borrowing Date, the principal amount in Dollars,
the maturity date and the lending Bank for all Discretionary Loans made during
any period for which the Commitment Fees and the Utilization Fee under Section
4.01 are to be calculated.
SECTION 2.05. Obligations Several, Not Joint . The obligations
of the Banks hereunder are several and not joint. The failure of any Bank to
make the Loan to be made by it as part of any borrowing shall not relieve any
other Bank of its obligation to make its Loan on the date of such borrowing, and
no Bank shall be responsible for the failure of any other Bank to make the Loan
to be made by such other Bank on the date of any borrowing.
SECTION 2.06. Replacement of Banks . If any Bank requests
compensation under Section 2.03, or if the Company is required to pay any
additional amount to any Bank or any governmental authority for the account of
any Bank pursuant to Section 2.02, or if any Bank defaults in its obligation to
fund Loans hereunder, or if any Bank fails to agree to an extension of the
Maturity Date as provided in Section 2.01(i), then the Company may, at its sole
expense and effort, upon notice to such Bank and the Administrative Agent,
require such Bank 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 Bank, if a Bank accepts such
assignment); provided that (i) the Company shall have received the prior written
consent of the
<PAGE> 29
23
Administrative Agent, which consent shall not be unreasonably withheld and (ii)
such Bank 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 Bank shall
not be required to make any such assignment and delegation if, prior thereto, as
a result of a waiver by such Bank or otherwise, the circumstances entitling the
Company to require such assignment and delegation cease to apply.
ARTICLE III
Optional and Required Prepayments; Interest
Payment Date; 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 Bank under Section 2.01(f) shall be
payable with respect to each such prepayment of any such CD Rate Loan or
Eurodollar Loan; and
(b) all partial prepayments shall be in an aggregate principal amount
of at least $2,000,000 and an integral multiple of $100,000; and
(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 CD Rate 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 Alternate Base Rate Loans, or any portion thereof,
proposed to be made pursuant to this Section 3.01, specifying the aggregate
principal amount of the Loans to be prepaid and the prepayment date; provided,
however, with respect to each oral notice of a prepayment, the Company shall
deliver promptly (and in any event, no later than two Business Days after the
giving of such oral notice) to the Administrative Agent a confirmatory written
notice of such proposed prepayment. The Administrative Agent shall promptly
notify the Banks 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 2.01(f) 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 the Company shall
reduce or terminate the respective Commitments of the Banks pursuant to Section
4.02, it will prepay to each Bank on the effective date of any such reduction or
termination:
(i) in the case of a reduction of the Commitments, that part of such
unpaid principal amount outstanding of the Conventional Loans and the
Discretionary Loans held by such Bank that exceeds the amount of the Commitment
of such Bank immediately after such reduction; and
<PAGE> 30
24
(ii) in the case of termination of the Commitments, the entire unpaid
principal amount of the Conventional Loans and the Discretionary Loans;
together, in each case, with accrued and unpaid interest on the amount being so
prepaid and all other amounts accrued and owing under this Agreement on such
date.
(b) (i) If on any Borrowing Date the principal amount
outstanding of the Conventional Loans and Discretionary Loans, as the case may
be, made to the Company by any Bank shall exceed the Commitment of such Bank,
the Company shall promptly pay to such Bank an amount equal to such excess,
together with accrued and unpaid interest on the amount so prepaid and all other
amounts accrued and owing under this Agreement on such date; and
(ii) if during any Prepayment Period the Company or any of its
Restricted Subsidiaries shall (A) sell, assign, transfer or otherwise dispose of
any Cash Flow Producing Asset (other than (i) dispositions of inventory in the
ordinary course of business or (ii) sales or transfers of capital stock or
assets to the Company or a Restricted Subsidiary) or (B) incur Debt for borrowed
money (other than (i) Debt incurred under this Agreement, the Five-Year
Agreement or outstanding commercial paper in respect of which Commitments under
this Agreement or the Five-Year Agreement are used to provide backup liquidity
and (ii) Debt incurred to finance the purchase by the Company or its Restricted
Subsidiaries of assets or capital stock (other than capital stock of the Company
or its Restricted Subsidiaries) not otherwise provided for in the Company's
annual capital expenditure budget or Debt incurred to refinance such Debt), then
the Company or such Restricted Subsidiary shall promptly apply an amount equal
to 50% of the Net Cash Proceeds of such sale, assignment, transfer, disposition
or incurrence to the prepayment of Loans under this Agreement and the Five-Year
Agreement and the Commitments under this Agreement and the Five-Year Agreement
shall be reduced by the respective amounts so prepaid thereunder; provided, that
if in connection with the disposition of any such capital stock or Cash Flow
Producing Asset, the Company shall advise the Administrative Agent that it
intends to use the Net Cash Proceeds of such disposition to acquire Cash Flow
Producing Assets to be owned by the Company or a Restricted Subsidiary, then (i)
the Commitments will not be reduced as required by this Section 3.02(b)(ii) to
the extent the amount prepaid or a portion thereof shall have been reborrowed
within 12 months after the date of such disposition and used to acquire such
Cash Flow Producing Assets, and (ii) during such 12 month period an amount of
the Commitments equal to the amount so prepaid will be restricted and the
Company will be entitled to reborrow such amount as provided herein only upon a
certification to the Administrative Agent that the proceeds of such borrowing
will be promptly applied to acquire such Cash Flow Producing Assets; and
provided further that prepayments and reductions required under clause (B) shall
be made only at each time that the aggregate amount of payments and reductions
required but not made shall equal an amount not less than $50,000,000, at which
time Loans shall be prepaid and Commitments reduced in such aggregate amount.
(c) Notwithstanding the foregoing, (i) no prepayment shall be
required under Section 3.02(b)(ii) with respect to an aggregate of $10,000,000
of Net Cash Proceeds and (ii) in the event any prepayment required by Section
3.02(b)(ii) to be made under this Agreement and the Five-Year Agreement shall be
in an amount less than $2,000,000, such prepayment may be deferred until the
aggregate amount of the prepayments deferred in reliance on this provision and
the corresponding provision of the Five-Year Agreement shall exceed $2,000,000,
at which time all such prepayments shall be promptly made and the Commitments
correspondingly reduced (except as otherwise provided in Section 3.02(b)(ii)).
In the event any prepayment
<PAGE> 31
25
required by Section 3.02(a) or Section 3.02(b) with respect to any Loan would
become due on a date that is not an Interest Payment Date and as a result
thereof the Company would incur liabilities under Section 2.01(f), the Company
shall make such prepayment to the Administrative Agent on the due date;
provided, however, that interest shall continue to accrue on any Loan so prepaid
and shall be paid by the Company to the Administrative Agent on the applicable
Interest Payment Date. So long as no Default or Event of Default shall occur or
shall have occurred and be continuing, the Administrative Agent shall hold the
proceeds of such prepayment for the benefit of the Banks, in an interest bearing
account, until such time as such proceeds can be applied towards payment of the
Loans in accordance with the provisions of this Agreement without resulting in
any liability to the Company under Section 2.01(f). All interest which may
accrue on such amounts so held in escrow shall be held by the Administrative
Agent for the benefit of the Company.
(d) All prepayments made pursuant to the provisions of this
Section 3.02 shall be applied, in the case of Conventional Loans, first, towards
payment of all Alternate Base Rate Loans, as the Company directs, and secondly,
and subject to the provisions of Section 2.01(f), towards payment of the
appropriate amount of CD Rate Loans and Eurodollar Loans, as the Company
directs. The Company shall have no right to reborrow any amount prepaid under
Section 3.02(a) or, except as expressly provided therein, Section 3.02(b)(ii).
SECTION 3.03. Interest Payment Date . The Company promises to
repay the principal amount of each Loan on the Interest Payment Date, or if
earlier, the Maturity Date, for such Loan; provided that, the Company may
reborrow in accordance with Section 2.01(a), Section 2.01(b) or Section 2.04 for
the purpose of refinancing any Loan. All principal payments of Loans shall be
accompanied by accrued and unpaid interest on the principal amount being repaid
to the date of payment.
SECTION 3.04. 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 or the Utilization Fee and the
Administrative Agent's fee and of principal of and interest on the Loans (other
than with respect to Discretionary Loans) shall be made to the Administrative
Agent in Dollars at its office at 270 Park Avenue, New York, New York 10017, in
immediately available funds for the accounts of the Banks. The Administrative
Agent will promptly distribute to the Banks, in accordance with each Bank's Pro
Rata Share as to all Loans (other than Discretionary Loans), in immediately
available funds, the amount of principal, interest, Commitment Fees and
Utilization Fees received by the Administrative Agent for the account of the
Banks; provided that if interest shall accrue on any Loan at a rate different
from the rate applicable to any other Loan, payment and distribution of interest
shall be based on the respective accrual rates applicable to such Loan. Any
payment to the Administrative Agent for the account of a Bank under this
Agreement shall constitute payment by the Company to such Bank of the amounts so
paid to the Administrative Agent, and any Loan 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
Fees; Reduction of Commitments
SECTION 4.01. Commitment Fees; Utilization Fee . (a) The Company agrees to
<PAGE> 32
26
pay to the Administrative Agent for the account of each Bank in Dollars,
commitment fees ("Commitment Fees"), computed on a daily basis of a year of 365
or 366 days, as the case may be, from the date of this Agreement to and
including the Termination Date at a rate per annum equal to the applicable
Margin Percentage on the daily average unused amount of the Commitment of such
Bank (taking into account all Conventional Loans and Discretionary Loans of such
Bank outstanding on the dates covered by such calculation). Each such Commitment
Fee shall be payable on or before the fifteenth day following each Quarterly
Date and on the Termination Date or on such earlier date as the Commitment of
such Bank shall terminate pursuant to the terms of this Agreement.
(b) For any day from the date of this Agreement to and including the
Maturity Date on which the sum of the Loans outstanding under this Agreement
(including all outstanding Discretionary Loans) exceeds 50% of the aggregate
Commitments hereunder, the Company shall pay to the Administrative Agent for the
account of each Bank, in Dollars, a utilization fee ("Utilization Fee") which
shall accrue at the rate of .10% per annum on the aggregate amount of such
Bank's outstanding Loans (excluding Discretionary Loans) on such day. Each such
Utilization Fee shall be payable on or before the fifteenth day following each
Quarterly Date and on the Maturity Date or on such earlier date as the
Commitments shall terminate pursuant to the terms of this Agreement. For
purposes of determining the applicable Utilization Fee during the period
following the Termination Date and prior to the Maturity Date, the applicable
calculation shall be made based on the amount of the Loans outstanding hereunder
from time to time and the amount of Commitments outstanding hereunder
immediately prior to their termination on the Termination Date. All Utilization
Fees shall be computed on the basis of a year of 365 days (or 366 days in the
case of a leap year) and shall be payable for the actual number of days elapsed
(including the first day but excluding the last day).
SECTION 4.02. 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 Banks
hereunder by giving not less than five 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 $3,000,000 and an integral
multiple of $250,000; provided, further, that, the Commitments may not be
reduced to an amount less than the aggregate principal amount of Discretionary
Loans and Conventional Loans outstanding at such time, unless simultaneously
therewith the Company shall make a prepayment in accordance with Section 3.02(a)
hereof. In the event of any prepayment of the Loans outstanding hereunder
pursuant to Section 3.02(b)(ii), the Commitments shall be ratably reduced by the
amount of such prepayment to the extent provided in Section 3.02(b)(ii). The
Administrative Agent shall promptly notify each Bank of its Pro Rata Share of
and of the date of each reduction of the Commitments. After each such reduction,
the Commitment Fees owing to each Bank shall be calculated upon the Commitment
of such Bank as so reduced. In the event of acceleration of the maturity date of
any Loan, the Commitments hereunder of the Banks shall thereupon automatically
terminate without notice. Each reduction or any termination of the Commitments
hereunder shall be irrevocable.
<PAGE> 33
27
ARTICLE V
Application of Proceeds
The Company agrees that the proceeds of the Loans hereunder
shall be used by the Company for general corporate purposes, including the
repayment of maturing commercial paper.
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 materially and adversely affect the business, properties or
financial condition of the Company and its Subsidiaries on a consolidated basis
or the ability of the Company to perform its obligations under this Agreement.
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 title
and number of such outstanding shares, if any, owned by Persons other than the
Company or any Subsidiary, (C) the name and address of each such other Person,
and (D) 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, claims and
encumbrances.
SECTION 6.02. Financial Statements. The Company has furnished
each Bank with the consolidated financial statements for the Company and its
Subsidiaries as at and for its fiscal year ended December 31, 1999, accompanied
by the opinion of Deloitte & Touche, and quarterly consolidated financial
statements as at and for the period ended June 30, 2000. Such statements have
been prepared in conformity with GAAP consistently applied throughout the period
involved, except as may be explained in such opinion. Such statements fairly
present 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
Subsidiaries on a consolidated basis since June 30, 2000; provided, however,
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 Company or any Subsidiary
before any court or administrative agency or other governmental authority which
might (although in the opinion of the Company such actions, suits and
proceedings would not reasonably be expected to) result in any material adverse
change in the business, properties or financial condition of the Company and its
<PAGE> 34
28
Subsidiaries on a consolidated basis or impair the ability of the Company to
perform its obligations under this Agreement.
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 materially and adversely affect the business, properties or
financial condition of the Company and its Subsidiaries on a consolidated basis
or impair the ability of the Company to perform its obligations under this
Agreement.
SECTION 6.05. Title to Assets. The Company and each
Restricted Subsidiary (i) have good and marketable title to their respective
real property assets and (ii) good title to their respective personal property
assets, in each case, subject to no liens, security interests or other
encumbrances except those permitted by Section 9.01.
SECTION 6.06. Payment of Taxes. The Company and each
Subsidiary have filed all Federal and 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 taxes shown on said returns and all
assessments which are due. 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 result in a material and adverse effect on the
business, properties or financial condition of the Company and its Subsidiaries
on a consolidated basis.
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 materially and adversely
affects the business, properties or financial condition of the Company and its
Subsidiaries on a consolidated basis. 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 if such
noncompliance or defaults referred to in this clause (ii) could in the aggregate
have a material adverse effect on the business, properties or financial
condition of the Company and its Subsidiaries on a consolidated basis or impair
the ability of the Company to perform its obligations under this Agreement.
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 and all other regulations of the Board of
Governors of the Federal Reserve System. Neither the Company nor any agent
acting on its behalf has taken or will take any action which would cause this
Agreement to violate Regulation U, T or X or any other regulation of the Board
of Governors of the Federal Reserve System 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.
<PAGE> 35
29
SECTION 6.09. Authority; Validity. 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 any governmental authority is
necessary to authorize or permit, or is required in connection with, the
execution and delivery of this Agreement, 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 are 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 and adverse effect on the business, properties or financial
condition of the Company and its Subsidiaries, on a consolidated basis, or could
reasonably be expected to impair the ability of the Company to perform its
obligations under this Agreement. Neither the Company nor any Subsidiary has
failed to obtain any license, permit, franchise, consent or authorization of any
governmental authority necessary to the ownership of its properties or the
operation of its business, which failure could reasonably be expected to have a
material and adverse effect on the business, properties or financial condition
of the Company and its Subsidiaries on a consolidated basis or could reasonably
be expected to impair the ability of the Company to perform its obligations
under this Agreement.
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,
has incurred any material accumulated funding deficiency within the meaning of
ERISA or Section 4971 of the Internal Revenue Code of 1986, as amended, or has
incurred any material liability to the Pension Benefit Guaranty Corporation
established under ERISA, or any successor thereto under ERISA (the "PBGC"), in
connection with any Plan. None of the Company, any Subsidiary or 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
414(b) and (c) of the Internal Revenue Code of 1986, as amended, is required to
contribute to any "multiemployer plan" (as such term is defined in Section
4001(a)(3) of ERISA) or has withdrawn from any multiemployer plan where such
contribution obligation or withdrawal has resulted or could result in any
"withdrawal liability" (as such term is defined in Section 4201 of ERISA) which
could reasonably be expected to have a Materially Adverse Effect.
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.
<PAGE> 36
30
SECTION 6.14. Disclosure. All material information furnished
by or on behalf of the Company in writing to the Administrative Agent or any
Bank pursuant to the terms of this Agreement (a) in the Confidential Information
Memorandum dated September 2000 or (b) after the date hereof and, in either
case, concerning the historical operations of the Company, did not or will not,
as the case may be, 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 were or 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;
(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 Subsidiaries on a consolidated basis.
SECTION 6.16. Insurance. The Company and each Subsidiary
maintains insurance of such types as is usually carried by corporations of
established reputation engaged in the same or similar businesses and similarly
situated with financially sound and reputable insurance companies or
associations (or, as to workers' compensation or similar insurance, with an
insurance fund or by self-insurance authorized by the jurisdiction in which its
operations are carried on) and in such amounts (and with co-insurance and
deductibles) as such insurance is usually carried by corporations of established
reputation engaged in the same or similar businesses and similarly situated.
SECTION 6.17. 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.
SECTION 6.18. Environmental and Safety Matters. The Company
and each Subsidiary have complied in all material respects with all Federal,
state, local and other statutes, ordinances, orders, judgments, rulings and
regulations relating to environmental pollution or to environmental regulation
or control or to employee health or safety. To the best knowledge of
<PAGE> 37
31
the Company's executive officers, neither the Company nor any Subsidiary has
received notice of any material failure so to comply. The Company's and the
Subsidiaries' plants do not manage any hazardous wastes, hazardous substances,
hazardous materials, toxic substances, toxic pollutants or substances similarly
denominated, as those terms or similar terms are used in the Resource
Conservation and Recovery Act, the Comprehensive Environmental Response
Compensation and Liability Act, the Hazardous Materials Transportation Act, the
Toxic Substance Control Act, the Clean Air Act, the Clean Water Act or any other
applicable law relating to environmental pollution or employee health and safety
generally, in violation in any material respect of any law or any regulations
promulgated pursuant thereto. The Company is aware of no events, conditions or
circumstances involving environmental pollution or contamination or employee
health or safety that could reasonably be expected to result in a material
adverse effect on the business, properties or financial condition of the Company
and its Subsidiaries on a consolidated basis.
ARTICLE VII
Conditions
SECTION 7.01. Conditions Precedent to Closing. The
obligations of the Banks to extend credit hereunder is subject to the
satisfaction of the following conditions:
(a) the Administrative Agent shall have received executed
counterparts of this Agreement which, when taken together, bear the signatures
of each of the parties hereto;
(b) the Administrative Agent shall have received on behalf of the
Banks all such evidence as it shall reasonably have requested as to the
corporate power and authority of the Company to enter into and borrow under this
Agreement and to perform its obligations hereunder;
(c) the Administrative Agent shall have received on behalf of the
Banks (i) from Counsel and Special FCC Counsel for the Company, their opinions,
dated the date hereof, substantially in the forms attached hereto as Exhibit
7.01(c)(i) and (ii) from Counsel for the Administrative Agent, its opinion,
dated the date hereof, substantially in the form attached hereto as Exhibit
7.01(c)(ii);
(d) the Administrative Agent shall have received on behalf of the
Banks an Officer's Certificate, dated the date hereof, substantially in the form
attached hereto as Exhibit 7.01(d);
(e) no Default shall have occurred and be continuing or shall
occur after giving effect to the Company's execution of this Agreement;
(f) after giving effect to the Company's execution of this
Agreement, the representations and warranties made by the Company in Article VI
(except those that expressly relate to a prior date) shall be true in all
material respects on and as of the date hereof;
(g) 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
<PAGE> 38
32
the extent invoiced, reimbursement or payment of all out-of-pocket expenses
required to be reimbursed or paid by the Company hereunder; and
(h) the Existing Credit Agreements shall have been terminated and
the principal of and interest accrued on all loans thereunder and all other
amounts due and payable thereunder shall have been paid.
SECTION 7.02. Conditions Precedent to Each Borrowing. The
obligation of the Banks to fund each Borrowing (including, without limitation,
the initial Borrowing after the date of this Agreement) is subject to the
following:
(a) No Event of Default shall have occurred and be
continuing or shall occur after giving effect to such Borrowing and the
application of the proceeds thereof, and each Borrowing shall be deemed to
constitute a representation and warranty by the Company on the applicable
Borrowing Date to such effect.
(b) The Administrative Agent shall have received by
telecopy, or otherwise, the Notice of Conventional Borrowing required by Section
2.01(b).
(c) The Company shall have delivered to the
Administrative Agent and each Bank such certificates and other documents as are
otherwise required under this Agreement.
SECTION 7.03. Conditions Precedent to Borrowings that Increase
Principal Outstanding. The obligation of the Banks to fund each Loan
(including, without limitation, the initial Loans to be made by the Banks to the
Company hereunder after the date of this Agreement), which has the effect of
increasing the aggregate outstanding principal amount of Loans of any Bank on
the applicable Borrowing Date is subject, in addition to the conditions set
forth in Section 7.02, to the following conditions:
(a) After giving effect to such Borrowing and the application of
the proceeds 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 in Sections 6.03 and 6.04 and those that
expressly relate to a prior date, shall be true in all material respects on and
as of the particular Borrowing Date as though made on and as of such date and
each such Borrowing shall be deemed to constitute a representation and warranty
by the Company on the applicable Borrowing 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 and those that
expressly relate to a prior date).
(b) Except as otherwise set forth therein, or in certificates
accompanying such financial statements, the most recent financial statements
delivered to the Banks pursuant to Section 8.02 shall fairly present 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 Borrowing shall be deemed to constitute a representation
and warranty by the Company on the applicable Borrowing Date to such effect.
(c) No Default shall have occurred and be continuing or shall
occur after giving effect to such Borrowing and the application of the proceeds
thereof, and each Borrowing
<PAGE> 39
33
shall be deemed to constitute a representation and warranty by the Company on
the applicable Borrowing Date to such effect.
(d) The Company shall have delivered to the Administrative Agent
and each Bank such certificates and other documents as are otherwise required
under this Agreement.
SECTION 7.04. Conditions Precedent to the Initial Borrowing
After the Effectiveness of this Agreement. The obligation of the Banks to fund
the initial Conventional Loan and, unless otherwise agreed, the initial
Discretionary Loan on or after the date of this Agreement is subject, in
addition to the conditions set forth above, to the following condition:
No material adverse change shall have occurred in the
financial condition or the business, operations or properties of the Company and
its Subsidiaries on a consolidated basis since June 30, 2000.
ARTICLE VIII
Affirmative Covenants
The Company covenants and agrees that, until payment in full of the
obligations and termination of the Commitments hereunder, the Company will:
SECTION 8.01. Certain Financial Covenants. Maintain
at all times during each period set forth below:
(a) a Leverage Ratio of not more than the ratio set forth opposite
such period:
<TABLE>
<CAPTION>
Period Ratio
<S> <C>
Closing Date through and including December 31, 2000 6.0 to 1.0
January 1, 2001 through and including December 31, 2001 5.5 to 1.0
January 1, 2002 and thereafter 5.0 to 1.0; and
</TABLE>
(b) a ratio of Pro-forma Consolidated Annualized Operating Cash
Flow to Consolidated Annualized Interest Expense of not less than 2.0 to 1.0 at
any time.
SECTION 8.02. Financial Statements and Information . Deliver
to each of the Banks in duplicate:
(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
<PAGE> 40
34
another independent certified public accountant of recognized standing
satisfactory to the Banks, that such statements have been prepared in accordance
with generally accepted accounting principles, consistently applied, except as
may be explained in such opinion, and fairly present 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) at
the request of the Administrative Agent, a copy of the reconciliation sheet,
certified by the chief 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 (subject to year end
audit adjustments and except for the absence of footnotes), except as may be
explained in such certificate, and as fairly presenting 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 chief financial officer of
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
delivered and Forms D;
(d) promptly 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,
cancelation, revocation or taking of any other 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, cancelation 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;
(g) together with the delivery of the financial statements
required under clauses (a) and (b) of this Section 8.02, the Company shall
deliver to the Administrative Agent a report setting forth with respect to the
Company and its Subsidiaries (i) the
<PAGE> 41
35
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 Bank 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 Bank (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(g), 9.02, 9.03 and 9.06 or reflecting any
non-compliance therewith as at the applicable date, and (ii) an Officer's
Certificate stating that there exists no Event of Default or, to the knowledge
of such officer, any Default, or, if any such Event of Default or, to the
knowledge of such officer, any 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. Together with each delivery of financial
statements required by clause (a) above, the Company will deliver to each Bank a
written statement of said accountants that, in making the audit necessary to the
certification of such financial statements, they have obtained no knowledge of
any Event of Default or Default, or, if such accountants shall have obtained
knowledge of any Event of Default or Default, they shall specify the nature and
period of existence thereof in such statement; provided, that such accountants
shall not be liable directly or indirectly to any Bank for failure to obtain
knowledge of any Event of Default or Default. Each Bank 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.
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 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 against the Property of the Company or a Subsidiary, except
liabilities 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 reasonable
view of the Company, if adversely determined or during the pendency thereof,
would materially impair the ability of the Company and its Subsidiaries on a
consolidated basis to carry on their businesses substantially as now being
conducted or would materially and adversely affect the financial condition,
business, operations or properties of the Company and its Restricted
Subsidiaries on a consolidated basis or would impair the ability of the Company
to perform its obligations under this Agreement, (ii) any action or development
which, in the view of the Company, might reasonably be expected to materially
impair the ability of the Company and its Subsidiaries on a consolidated basis
to carry on their businesses substantially as now being conducted or would
materially and adversely affect the financial
<PAGE> 42
36
condition, business, operations or properties of the Company and its
Subsidiaries on a consolidated basis or would impair the ability of the Company
to perform its obligations under this Agreement, (iii) 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 which Debt declares, or may declare, such Debt due
prior to its stated maturity because of the occurrence of a default or other
event thereunder or with respect thereto and (iv) any revocation, suspension or
expiration of FCC licenses which, individually or in the aggregate, are material
to the operations of the Company and the Restricted Subsidiaries on a
consolidated basis (the "Material FCC Licenses").
SECTION 8.05. Books and Records. Maintain, and cause its
Subsidiaries to maintain, proper books of record and account in accordance with
GAAP, consistently applied.
SECTION 8.06. Inspection of Property and Records. Permit any
Person designated in writing by the Administrative Agent or any Bank (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 Bank may reasonably request.
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, and cause each Subsidiary to
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
files or is required to file, with respect to any Plan, any notice of a
"reportable event" (as such term is defined in Section 4043 of ERISA) for which
the notice requirement has not been waived by the PBGC (provided that notice
shall be required for reportable events arising from the disqualification of a
Plan or the distress termination of a Plan (in accordance with ERISA Section
4041(c)) without regard to the waiver of notice provided by the PBGC by
regulation or otherwise), a statement of the chief financial officer of the
Company setting forth details as to such reportable event and the action which
the Company, or such Subsidiary, as the case may be, proposes to take with
respect thereto, together with a copy of the notice of such reportable event
given 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 pursuant to Section 4042 of ERISA.
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.
<PAGE> 43
37
SECTION 8.10. Compliance with Material Franchise Agreements.
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.
SECTION 8.11. Restricted/Unrestricted Designation of
Subsidiaries. The Company will be permitted to designate a Restricted
Subsidiary as an Unrestricted Subsidiary or an Unrestricted Subsidiary as a
Restricted Subsidiary by the delivery to the Administrative Agent of a written
notice certifying that all conditions set forth in this Section 8.11 are
satisfied as of the effective date of such designation, which certification
shall state the effective date of such designation and shall set forth the
computations and information as may be required to demonstrate that the Company
is in compliance with this Section 8.11 and shall be signed by a financial
officer of the Company, provided, that, (a) no Default or Event of Default shall
exist immediately before or after the effective date of any such designation;
and (b) the Company shall not designate as Unrestricted Subsidiaries during any
period of 12 consecutive months Restricted Subsidiaries as to which the
Attributable Amount shall exceed 15% of Pro-forma Consolidated Annualized
Operating Cash Flow excluding therefrom the Attributable Amount of the
Unrestricted Subsidiaries which have been designated as Restricted Subsidiaries
during such period.
SECTION 8.12. Capital Expenditure Budget. The Company will
prepare its annual capital expenditure budget in a manner consistent in all
material respects with past practice.
ARTICLE IX
Negative Covenants
Until payment in full of the obligations and termination of the
Commitments hereunder:
SECTION 9.01. Mortgages, etc. The Company will not and will
not permit any Restricted Subsidiary to create or permit to exist any lien,
encumbrance, or security interest (including the charge upon assets purchased
under a conditional sales agreement, purchase money mortgage, security
agreement, or other title retention agreement) 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 not yet due or which are being contested in
good faith by appropriate proceedings;
(b) other liens, encumbrances and security interests 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;
<PAGE> 44
38
(c) liens and security interests on assets of a Restricted
Subsidiary to secure obligations of such Restricted Subsidiary to the Company or
a Wholly Owned Restricted Subsidiary;
(d) liens and security interests existing on the date hereof which
are (i) both (y) described in Exhibit 9.01(d) attached hereto and (z) reflected
in the consolidated financial statements of the Company referred to in Section
6.02 and (ii) liens and security interests 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 described in
Exhibit 9.01(d);
(e) liens and security interests 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 or
security interest may encumber or cover any other Property of such Restricted
Subsidiary, of the Company or of any other Restricted Subsidiary;
(f) liens, encumbrances and security interests on the stock of
Unrestricted Subsidiaries;
(g) liens on Excess Margin Stock owned by the Company and its
Restricted Subsidiaries; and
(h) other liens and security interests (in addition to those
permitted pursuant to Section 9.01(e)) on Property of the Company and its
Restricted Subsidiaries that secure Debt of the Company and its Restricted
Subsidiaries in an amount which, when taken together with all other outstanding
secured Debt incurred in reliance on this clause (h) and, without duplication,
all outstanding Debt of Restricted Subsidiaries incurred in reliance on clause
(b) of Section 9.02, does not at the time it is incurred exceed 20% of Pro-forma
Consolidated Annualized Operating Cash Flow.
SECTION 9.02. 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 clause (h) of Section 9.01, does not at
the time it is incurred exceed 20% of Pro-forma Consolidated Annualized
Operating Cash Flow.
SECTION 9.03. Merger; Consolidation; Disposition of Assets.
The Company will not merge or consolidate with any Person 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) any Cash Flow
<PAGE> 45
39
Producing Assets, other than sales of inventory in the ordinary course of
business and sales of stock of Unrestricted Subsidiaries or Margin Stock to any
Person and other than dispositions to the Company and its Restricted
Subsidiaries, unless both before and after giving effect to such disposition no
Default or Event of Default shall exist.
SECTION 9.04. Restricted Payments. The Company will not, and
will not permit any Subsidiary to, pay or declare dividends (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") during any
fiscal year in an aggregate amount equal to the greater of (a) $25,000,000 or
(b) 5% of Pro-forma Consolidated Annualized Operating Cash Flow determined as of
the Company's most recent fiscal year end if at the time of each such Restricted
Payment, and after giving effect thereto on a pro-forma basis as if each
Restricted Payment had occurred on the first day of the fiscal quarter most
recently ended, the Leverage Ratio would exceed 5.0 to 1.0.
SECTION 9.05. Limitation on Margin Stock. The Company will
not and will not permit any Restricted Subsidiary to own or acquire Margin Stock
such that at any time Margin Stock of the Company and its Restricted
Subsidiaries other than stock of Unrestricted Subsidiaries represents more than
40% of the value of the assets of the Company and its Subsidiaries on a
consolidated basis that would be subject to Section 9.01 or Section 9.03 but for
the exclusion of Excess Margin Stock from the restrictions of such Sections.
SECTION 9.06. Loans and Advances to and Investments in
Unrestricted Subsidiaries . At any time when (a) the Company shall not have
outstanding Index Debt that is investment grade rated by two of Moody's, S&P and
Fitch and (b) the Leverage Ratio exceeds (or would exceed on a pro forma basis
after giving effect to a transaction of the sort referred to in this Section
9.06 as if it had occurred at the beginning of any relevant quarter) 5.5 to 1.0,
the Company will not and will not permit any Restricted Subsidiary to make any
loan or advance to, or make any capital contribution to or other investment in,
any Unrestricted Subsidiary unless (i) in the case of a loan, advance or other
investment, such loan, advance or other investment is on terms which are no less
favorable to the Company or such Restricted Subsidiary, as the case may be, than
would obtain in a comparable arm's length transaction with an unaffiliated
Person, and (ii) in each case at the time of the making of any such loan,
advance, capital contribution or investment no Default or Event of Default has
occurred and is continuing and after giving effect to such loan, advance,
capital contribution or investment no Default or Event of Default would occur.
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 other than (a) transactions with
the Company or one or more Subsidiaries that are otherwise permitted by this
Agreement, (b) transactions on terms and conditions substantially as favorable
to the Company or such Restricted Subsidiary 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, (c) transactions involving the
Company and its Restricted Subsidiaries exclusively and (d) 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 of the Company at a meeting at which a quorum of
disinterested directors is present.
<PAGE> 46
40
ARTICLE X
Events of Default
Upon (i) the occurrence of any Event of Default specified in
Sections 10.10, 10.11, 10.12 or 10.13, (x) the unpaid principal amount of, and
all accrued but unpaid interest on, all Loans outstanding (including all
Discretionary Loans) and any other amounts payable hereunder shall automatically
become 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 and (y) the obligation of the Banks to make Loans
hereunder shall immediately terminate and (ii) the occurrence and during the
continuance of any other Event of Default and upon the written request of the
Majority Banks, the Administrative Agent shall, by notice to the Company, (x)
declare the obligation of the Banks to make Loans hereunder to be immediately
terminated, and the same shall forthwith be terminated, and/or (y) declare all
Loans then outstanding (including all Discretionary Loans) and any other amount
payable hereunder to be, and the same shall forthwith become, 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.
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, or the applicable Bank with respect to any Discretionary
Loan, 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 any Loan
covered by Section 10.01) payable to the Administrative Agent or any Bank under
the terms of this Agreement within 10 days after the date due (or, in the case
of the Commitment Fees or Utilization Fees payable to the Administrative Agent
for the account of each Bank pursuant to Section 4.01, 10 days after written
notice of nonpayment has been received by the Company from the Administrative
Agent or any Bank); or
SECTION 10.03. Failure To Pay 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; (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 (iii) an
Event of Default shall occur and be continuing under the Five-Year Agreement; or
<PAGE> 47
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SECTION 10.04. Misrepresentation or Breach of Warranty. (i)
Any representation or warranty made by the Company herein when made or deemed
made by the Company pursuant hereto shall be incorrect in any material respect
or (ii) any other written or formally presented information (other than
projections and similar forward-looking information) provided by the Company
pursuant to this Agreement after the date hereof, shall, 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; or
SECTION 10.05. Violation of Certain Covenants. The Company
violates any covenant, agreement or condition contained in Article V or Section
8.01 or Section 8.02(d) 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 Bank; or
SECTION 10.07. Undischarged Judgment. Final judgment for the
payment of money in excess of $50,000,000 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. ERISA. (a) A "reportable event" (as such term
is defined in Section 4043 of ERISA) shall have occurred with respect to any
Plan and within 30 days after the reporting of any such reportable event to the
Administrative Agent, the Administrative Agent shall have notified the Company
in writing that the Majority Banks have made a determination that, on the basis
of such reportable event, there is a substantial likelihood that such Plan will
be terminated by the PBGC or (b) the PBGC has instituted proceedings to
terminate any Plan and the effect of either of the foregoing would reasonably be
expected to have a Materially Adverse Effect.
SECTION 10.09. Change of Control. A Change of Control shall
have occurred.
SECTION 10.10. 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 10.11. 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 10.12. Involuntary Bankruptcy. An involuntary
proceeding is commenced or an involuntary petition is filed in a court of
competent jurisdiction seeking (i) relief in respect of the Company or any
Restricted Subsidiary, or of a substantial part of the property or assets of the
Company or a Restricted Subsidiary, under Title 11 of the United States
<PAGE> 48
42
Code, as now constituted or hereafter amended, or any other Federal or state
bankruptcy, insolvency, receivership or similar law or (ii) the appointment of a
receiver, trustee, custodian, sequestrator, conservator or similar official for
the Company or any Restricted Subsidiary or for a substantial part of the
property or assets of the Company or Restricted Subsidiary; and such proceeding
or petition shall continue undismissed for 60 days or an order or decree
approving or ordering any of the foregoing shall be entered; or
SECTION 10.13. 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.
SECTION 10.14. Interest on PRIZES. Upon the occurrence of any
Event of Default specified in this Article X, the Company shall defer payments
of Basic Interest (as defined in Section 3 of the global notes evidencing the
PRIZES) on the PRIZES in accordance with and as described in the "Description of
PRIZES" section of the Prospectus Supplement until such Event of Default is
otherwise cured or waived under this Agreement.
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
Banks; provided that no such waiver, modification or amendment may be made which
will:
(a) Reduce or increase the amount or alter the term of the
Commitment of any Bank hereunder, other than as permitted by Section 4.02,
without the prior written consent of such Bank; or
(b) Extend the stated maturity of or the time for payment of
interest on any Loan or the time for payment of any 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 reduce the
amount of any fee, or otherwise affect the terms of payment of any such fee,
without the prior written consent of each affected Bank; or
(c) Change the definition of Majority Banks without the prior
written consent of all the Banks; or
(d) Waive, modify or amend the provisions of this Article XI,
Section 13.07(a) or any other provision of this Agreement requiring the ratable
distribution of payments among the Banks without the prior written consent of
all the Banks; or
(e) Waive, modify or amend the provisions of Article XII without
the prior written consent of the Administrative Agent and the Majority Banks.
No failure or delay on the part of the Administrative Agent or
any Bank 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
<PAGE> 49
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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 or 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 Banks 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
Banks, and such instructions shall be binding upon all Banks; provided, however,
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 Agreement, unless indemnified to
its reasonable satisfaction by the Banks 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
Banks 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 amounts 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 Bank 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 wilful 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 Banks, or (ii) in the absence of its or their own gross negligence or
wilful misconduct. Without limitation of the generality of the foregoing (but
subject to the immediately preceding clause (ii)), 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
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44
accordance with the advice of such counsel, accountants or experts; (w) makes no
warranty or representation to any Bank and shall not be responsible to any Bank
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 Bank 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
facsimile), certificate or other instrument or writing (which may be by
telegram, cable or facsimile) believed by it to be genuine and communicated,
signed or sent by the proper Person or Persons.
SECTION 12.04. Independent Credit Decision. Each Bank 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 Bank
agrees that it has not relied and will not rely upon the Administrative Agent or
any other Bank respecting the ability of the Company to perform its obligations
pursuant to this Agreement.
SECTION 12.05. Rights of Chase. With respect to its
Commitment and the Loans made by it, Chase shall have the same rights and powers
under this Agreement as any other Bank and may exercise the same as though it
were not the Administrative Agent; and the term "Bank" or "Banks" shall, unless
otherwise expressly indicated, include Chase in its individual capacity. Chase
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 Chase were not the
Administrative Agent and without any duty to account therefor to the Banks.
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 Banks 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 Banks. Upon any such
resignation or removal, the Company (with the consent of the Majority Banks)
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 Banks), and shall have accepted such
appointment, within 30 days after the retiring Administrative Agent's giving of
notice of resignation or the Majority Banks' removal of the retiring
Administrative Agent, then the retiring Administrative Agent may, on behalf of
the Banks, 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 $100,000,000. 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
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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. None of the Banks identified on
the facing page or signature pages or elsewhere herein as "syndication agent" or
"co-documentation agent" shall have any right, power, obligation, liability,
responsibility or duty under this Agreement other than those applicable to all
Banks as such. Without limiting the foregoing, none of the Banks so identified
shall have or be deemed to have any fiduciary relationship with any Banks. Each
Bank acknowledges that it has not relied, and will not rely, on any of the Banks
so identified in deciding to enter into this Agreement or in taking or not
taking action hereunder.
ARTICLE XIII
Miscellaneous
SECTION 13.01. Payment of Expenses. Any provision hereof to
the contrary notwithstanding, 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 and the Banks or
any Bank 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 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 and the Banks
or any Bank with respect thereto; provided, however, that so long as no Default
or Event of Default has occurred and is continuing, such reasonable counsel
expenses shall be limited to the reasonable expenses of one counsel for the
Administrative Agent, (ii) all reasonable increases in costs and expenses of the
Administrative Agent and the Banks or any Bank (including reasonable counsel
fees and expenses, including reasonable allocated costs of in-house legal
counsel to the Administrative Agent or any Bank), if any, in connection with the
administration of this Agreement after the occurrence of a Default or Event of
Default and so long as the same is continuing and (iii) all reasonable costs and
expenses of the Administrative Agent and the Banks or any Bank (including
reasonable counsel fees and expenses, including reasonable allocated costs of
in-house legal counsel to the Administrative Agent or any Bank), 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 obligations hereunder.
SECTION 13.02. Notices. The Administrative Agent or any Bank
giving consent or notice to the Company provided for hereunder (other than in
connection with any Discretionary Loans), shall notify each Bank and the
Administrative Agent thereof. In the event that any Bank 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 Bank 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 Conventional Borrowings or oral notices regarding the payment of interest
under Section 10.01, notices and other communications provided for herein shall
be in writing (including telegraphic, facsimile or cable communication) and
shall be
<PAGE> 52
46
delivered, mailed, telegraphed, transmitted or cabled addressed to the addresses
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 or if sent by
registered or certified mail four Business Days after being duly posted, in each
case addressed to such party as provided in this Section 13.02 or in accordance
with the latest unrevoked direction from such party, except for Notices of
Conventional Borrowings and notices of prepayments of Loans hereunder, which
shall be deemed to have been given when received by the Administrative Agent,
and except for notices from the Administrative Agent to the Company under
Section 10.01 with respect to the amount of accrued and unpaid interest due on
the Loans, which shall be deemed to have been given when received by the
Company. The Administrative Agent and the Banks 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, any Bank or commercial bank which is owed any
obligation hereunder (a "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 setoff 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 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 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 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 owed to 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 Bank a schedule setting forth the Commitment of each Bank hereunder to
permit each Bank 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.
<PAGE> 53
47
SECTION 13.04. Indemnity and Judgments. The Company agrees to
indemnify the Administrative Agent and each of the Banks and each of their
controlling persons and Affiliates and each of their respective directors,
officers, employees, agents, attorneys and advisors 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, reasonable 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 by a Bank 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 and to the
extent that the indemnified liabilities arise out of or by reason of claims made
by Persons other than the Administrative Agent or any Bank; provided that no
such Person shall be entitled to be indemnified and held harmless against any
portion of indemnified liabilities resulting from or by reason of the gross
negligence or wilful misconduct of such Person.
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 Bank 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 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 Bank under this
Agreement that are made for the purpose of determining whether such rate exceeds
the Highest Lawful Rate applicable to such Bank (such Highest Lawful Rate being
such Bank's "Maximum Permissible Rate"), shall be made, to the extent permitted
by usury laws applicable to such Bank (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 Bank in connection therewith. If at any time and from time to time (y) the
amount of interest payable to any Bank on any date shall be computed at such
Bank'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 Bank would be less than the amount of interest payable
to such Bank computed at such Bank's Maximum Permissible Rate, then the amount
of interest payable to such Bank in respect of such subsequent interest
computation period shall continue to be computed at such Bank's Maximum
Permissible Rate until the total amount of interest payable to such Bank shall
equal the total amount of interest which would have been payable to such Bank 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 Banks under the laws of the State of New York and
of the United States and for all purposes shall be construed in accordance with,
and governed by, the laws of said State
<PAGE> 54
48
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 Bank
may have under applicable Federal law relating to the amount of interest which
such Bank 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 Bank 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 nonexclusive 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 Bank 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 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
Banks, and thereafter shall be binding upon and inure to the benefit of the
Company, the Administrative Agent and the Banks and their respective successors
(which shall include, in the case of a Bank, any entity resulting from a merger
or consolidation) 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 Bank.
(b) Each Bank may grant participations to one or more
other banks or other Persons 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, however, that
(i) such Bank's obligations under this Agreement (including, without limitation
its Commitment to the Company hereunder) shall remain unchanged, (ii) such Bank
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 Banks shall continue to deal solely and directly with such Bank in
connection with such Bank's rights and obligations under this Agreement,
including without limitation, such Bank's rights under Article XI hereof. In
connection with any such participation, each Bank 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, however, each such Bank shall obtain from each such
<PAGE> 55
49
participant an agreement to the effect that all such information delivered to it
in connection with such participation shall be considered confidential and shall
not be further distributed or delivered to any other Person except any
regulatory body having jurisdiction over such participant or to any director,
officer, employee, Affiliate or representative (including accountants and
attorneys acting for such participants) or as may otherwise be required by legal
process or applicable law, rules and regulations. Upon request of the Company,
each Bank shall give prompt notice to the Company of each such participation to
banks or other Persons that are not Affiliates of such Bank 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 Person acquiring a participation in
any Loan, other than the parties to this Agreement, except that any Person
acquiring a participation shall be entitled to the benefits conferred upon the
Banks by Section 2.01(f)-(g) (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 Banks,
or Affiliates of the Banks) to the prior written consent of the Company (which
consent shall not be unreasonably withheld or delayed) and written
acknowledgment of the Administrative Agent, each Bank may assign to a bank or
other Person a portion of its rights and obligations under this Agreement
(including, without limitation, a portion of its Commitment); provided, however,
that (i) each such assignment shall be of a constant, and not a varying,
percentage of all of the assigning Bank's rights and obligations under this
Agreement and shall be in an amount equal to or greater than $15,000,000 of the
assigning Bank's Commitment (except in the case of assignments to Banks or
Affiliates of any Bank 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
$2,000 (except in the case of assignments to Banks or Affiliates of any Bank);
provided, however, that such recordation fee shall not be payable if such
transfer is made pursuant to Sections 2.01(e) or (g)(vi). 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 Bank under this
Agreement and (y) the Bank 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 remaining portion of an assigning Bank's rights and obligations under this
Agreement, such Bank shall cease to be a party hereto).
(d) Notwithstanding anything to the contrary contained
herein, any Bank (a "Granting Bank") may grant to a special purpose funding
vehicle (an "SPC"), identified as such in writing from time to time by the
Granting Bank to the Administrative Agent and the Company, the option to provide
to the Company all or any part of any Loan that such Granting Bank 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 Bank shall be
obligated to make such Loan pursuant to the terms hereof, and such Granting Bank
shall be liable hereunder generally for all acts and omissions of such
<PAGE> 56
50
SPC as if such acts and omissions were committed by such Granting Bank; (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 Bank being as set
forth in any agreements between such SPC and such Granting Bank), and shall not
constitute a "Bank" hereunder; (iv) all amounts payable by the Company to the
Granting Bank shall be determined as if such Granting Bank had not granted such
option, and as if such Granting Bank 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 Bank 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 Bank 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 Bank to the same extent, and as if, such
Loan were made by such Granting Bank. 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 Bank),
(ii) no SPC shall be entitled to the benefits of Sections 2.01(f), (g) or (h)
(or any other increased costs protection provision) other than as contemplated
by clause (iv) of the second preceding sentence and (iii) the Granting Bank
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 Bank 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 Bank 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 Bank 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 Bank 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, enforceability, genuineness,
sufficiency or value of any other instrument or document furnished pursuant
thereto, (ii) such assigning Bank 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
<PAGE> 57
51
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 Bank or any other Bank 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 Bank.
(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 Banks and the Commitment of, and principal amount of the
Loans owing to, each Bank 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 Banks may treat each
Person whose name is recorded in the Register as a Bank hereunder for all
purposes of this Agreement. The Register shall be available for inspection by
the Company or any Bank 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 Bank, 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 Bank may at any time, without the consent of the Company, assign
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 Bank from any of its obligations
hereunder or substitute any such Federal Reserve Bank for such Bank 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 Bank, duly execute and deliver to
the assigning Bank a promissory note or notes evidencing the Loans made to the
Company by the assigning Bank 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 Bank. 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.
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.
<PAGE> 58
52
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 Banks. Each Bank 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.
SECTION 13.12. Final Agreement of the Parties. This Agreement
(including the Exhibits hereto) represents the final agreement between 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.
SECTION 13.13. Waiver of Jury Trial. The Company, the Banks
and the Administrative Agent 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. 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".
<PAGE> 59
IN WITNESS WHEREOF this Agreement has been executed by the
duty authorized signatories of the parties hereto in several counterparts all as
of the day and year first above written.
<PAGE> 60
COX COMMUNICATIONS, INC.,
by
/s/ Jimmy W. Hayes
---------------------------
Name: Jimmy W. Hayes
Title: Executive Vice President,
Finance and Chief Financial
Officer
<PAGE> 61
THE CHASE MANHATTAN BANK, individually
and as Administrative Agent
by
/s/ Constance M. Coleman
----------------------------
Name: Constance M.Coleman
Title: Vice President
<PAGE> 62
THE BANK OF NEW YORK,
by
/s/ Cynthia L. Rogers
-----------------------------
Name: Cynthia L. Rogers
Title: Vice President
<PAGE> 63
BANK OF AMERICA, N.A.,
by
/s/ Pamela S. Kurtzman
-----------------------------------
Name: Pamela S. Kurtzman
Title: Principal
<PAGE> 64
THE DAI-ICHI KANGYO BANK, LIMITED,
by
/s/ Nancy Stengel
---------------------------------
Name: Nancy Stengel
Title: Vice President
<PAGE> 65
WACHOVIA BANK, N.A.,
by
/s/ J. Timothy Toler
------------------------------------
Name: J. Timothy Toler
Title: Senior Vice President
<PAGE> 66
BANK ONE, N.A.,
by
/s/ Jennifer L. Jones
------------------------------------
Name: Jennifer L. Jones
Title: Commercial Banking Officer
<PAGE> 67
CITIBANK, N.A.,
by
/s/ Elaine Henry
------------------------------------
Name: Elaine Henry
Title: Senior Banker
<PAGE> 68
FIRST UNION NATIONAL BANK,
by
/s/ Kevin Shea
-----------------------------------
Name: Kevin Shea
Title: Vice President
<PAGE> 69
FLEET NATIONAL BANK,
by
/s/ Tanya M. Crossley
------------------------------------
Name: Tanya M. Crossley
Title: Director
<PAGE> 70
MELLON BANK, N.A.,
by
/s/ Alexander M. Gordon
------------------------------------
Name: Alexander M. Gordon
Title: Assistant Vice President
<PAGE> 71
SUNTRUST BANK,
by
/s/ Edwin D. Brooks, Jr.
-------------------------------------
Name: Edwin D. Brooks, Jr.
Title: Managing Director
<PAGE> 72
ABN AMRO BANK N.V.,
by
/s/ Ravneet Mumick
--------------------------------------
Name: Ravneet Mumick
Title: Vice President
by
/s/ Thomas Cha
-------------------------------------
Name: Thomas Cha
Title: Corporate Banking Officer
<PAGE> 73
THE BANK OF TOKYO-MITSUBISHI TRUST COMPANY,
by
/s/ S. Akita
-------------------------------------
Name: S. Akita
Title: Vice President
<PAGE> 74
COMMERZBANK AG NEW YORK AND GRAND CAYMAN BRANCHES,
by
/s/ Harry P. Yergey
-------------------------------------------
Name: Harry P. Yergey
Title: SVP & Manager
by
/s/ Brian J. Campbell
-------------------------------------------
Name: Brian J. Campbell
Title: Vice President
<PAGE> 75
CREDIT SUISSE FIRST BOSTON,
by
/s/ David L. Sawyer
------------------------------
Name: David L. Sawyer
Title: Vice President
by
/s/ Bill O'Daly
------------------------------
Name: Bill O'Daly
Title: Vice President
<PAGE> 76
DRESDNER BANK AG, NEW YORK AND GRAND CAYMAN BRANCHES,
by
/s/ Brian Schneider
------------------------------------
Name: Brian Schneider
Title: Assistant Vice President
by
/s/ Michael S. Greenberg
-------------------------------------
Name: Michael S. Greenberg
Title: Assistant Vice President
<PAGE> 77
WESTDEUTSCHE LANDESBANK GIROZENTRALE,
by
/s/ Lucie L. Guernsey
-----------------------------------
Name: Lucie L. Guernsey
Title: Director
by
/s/ Pascal Kabemba
-----------------------------------
Name: Pascal Kabemba
Title: Associate Director
<PAGE> 78
MERRILL LYNCH CAPITAL CORPORATION,
by
/s/ S. McGillicuddy
-----------------------------------
Name: S. McGillicuddy
Title: VP
<PAGE> 79
THE SANWA BANK, acting through its New York Branch,
by
/s/ P. Bartlett Wu
-------------------------------------
Name: P. Bartlett Wu
Title: Vice President
<PAGE> 80
THE SUMITOMO BANK, LIMITED,
by
/s/ C. Michael Garrido
-----------------------------------
Name: C. Michael Garrido
Title: Senior Vice President
<PAGE> 81
BANK OF OKLAHOMA, N.A.,
by
/s/ Elaine A. Hood
-----------------------------------
Name: Elaine A. Hood
Title: Vice President
<PAGE> 82
PNC BANK, National Association,
by
/s/ Steven J. McGehrin
-------------------------------------
Name: Steven J. McGehrin
Title: Vice President
<PAGE> 83
BANK OF HAWAII,
by
/s/ Luke Yeh
-----------------------------------
Name: Luke Yeh
Title: Vice President
<PAGE> 84
THE BANK OF NOVA SCOTIA ,
by
/s/ P.A. Weissenberger
-----------------------------------
Name: P.A. Weissenberger
Title: Authorized Signatory
<PAGE> 85
FIRST HAWAIIAN BANK,
by
/s/ Seydou Diallo
-----------------------------------
Name: Seydou Diallo
Title: Media Finance Officer
<PAGE> 86
TOKAI BANK, LIMITED,
by
/s/ Shinichi Nakatani
-----------------------------------
Name: Shinichi Nakatani
Title: Assistant General Manager
<PAGE> 87
WELLS FARGO BANK, N.A.,
by
/s/ Jack Haye
-------------------------------
Name: Jack Haye
Title: Senior Vice President
<PAGE> 88
HIBERNIA NATIONAL BANK,
by
/s/ G. Jeffrey Jones
---------------------------------
Name: G. Jeffery Jones
Title: Senior Vice President
