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EXHIBIT 10.2
FIVE-YEAR
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
--------------------
BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION
as Syndication Agent
-------------------------
THE BANK OF NEW YORK and WACHOVIA BANK, N.A.
as Co-Documentation Agents
-------------------------
Chase Securities Inc.,
as Sole Advisor, Arranger and Book Manager
-------------------------
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TABLE OF CONTENTS
ARTICLE I
Definitions 1
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SECTION 1.01. Defined Terms...................................................1
SECTION 1.02. Redenomination of Certain Foreign Currencies...................15
ARTICLE II
The Loans 16
SECTION 2.01. Revolving Credit Loans.........................................16
SECTION 2.02. Setoff, Counterclaims and Taxes................................24
SECTION 2.03. Withholding Tax Exemption......................................25
SECTION 2.04. Alternate Currency Loans.......................................25
SECTION 2.05. Currency Equivalents...........................................26
SECTION 2.06. Discretionary Loans............................................27
SECTION 2.07. Obligations Several, Not Joint.................................28
SECTION 2.08. Replacement of Banks...........................................28
ARTICLE III
Optional and Required Prepayments; Interest
Payment Date; Other Payments 28
SECTION 3.01. Optional Prepayments...........................................28
SECTION 3.02. Required Prepayments...........................................29
SECTION 3.03. Interest Payment Date..........................................31
SECTION 3.04. Place, etc. of Payments and Prepayments........................31
SECTION 3.05. Basis of Accrual...............................................32
SECTION 3.06. Rounding and Other Consequential Changes.......................32
ARTICLE IV
Fees; Reduction of Commitments 33
SECTION 4.01. Commitment Fees; Utilization Fee...............................33
SECTION 4.02. Reduction or Termination of Commitments........................33
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ARTICLE V
Application of Proceeds 34
Application of Proceeds 34
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ARTICLE VI
Representations and Warranties 34
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SECTION 6.01. Organization; Qualification; Subsidiaries......................34
SECTION 6.02. Financial Statements...........................................34
SECTION 6.03. Actions Pending................................................35
SECTION 6.04. Default........................................................35
SECTION 6.05. Title to Assets................................................35
SECTION 6.06. Payment of Taxes...............................................35
SECTION 6.07. Conflicting or Adverse Agreements or Restrictions..............35
SECTION 6.08. Purpose of Loans...............................................36
SECTION 6.09. Authority; Validity............................................36
SECTION 6.10. Consents or Approvals..........................................36
SECTION 6.11. Compliance with Law............................................36
SECTION 6.12. ERISA..........................................................37
SECTION 6.13. Investment Company Act.........................................37
SECTION 6.14. Disclosure.....................................................37
SECTION 6.15. Material Franchise Agreements..................................37
SECTION 6.16. Insurance......................................................38
SECTION 6.17. Quality of CATV Systems........................................38
SECTION 6.18. Environmental and Safety Matters...............................38
ARTICLE VII
Conditions 39
SECTION 7.01. Conditions Precedent to Closing................................39
SECTION 7.02. Conditions Precedent to Each Borrowing.........................39
SECTION 7.03. Conditions Precedent to Borrowings that Increase Principal
Outstanding....................................................40
SECTION 7.04. Conditions Precedent to the Initial Borrowing After the
Effectiveness of this Agreement................................40
ARTICLE VIII
Affirmation Covenants 41
SECTION 8.01. Certain Financial Covenants....................................41
SECTION 8.02. Financial Statements and Information...........................41
SECTION 8.03. Existence, Laws, Obligations...................................43
SECTION 8.04. Notice of Litigation and Other Matters.........................43
SECTION 8.05. Books and Records..............................................44
SECTION 8.06. Inspection of Property and Records.............................44
SECTION 8.07. Maintenance of Property, Insurance.............................44
SECTION 8.08. ERISA..........................................................44
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SECTION 8.09. Maintenance of Business Lines..................................44
SECTION 8.10. Compliance with Material Franchise Agreements..................45
SECTION 8.11. Restricted/Unrestricted Designation of Subsidiaries............45
SECTION 8.12. Capital Expenditure Budget.....................................45
ARTICLE IX
Negative Covenants 45
SECTION 9.01. Mortgages, etc.................................................45
SECTION 9.02. Debt...........................................................46
SECTION 9.03. Merger; Consolidation; Disposition of Assets...................46
SECTION 9.04. Restricted Payments............................................47
SECTION 9.05. Limitation on Margin Stock.....................................47
SECTION 9.06. ...............................................................47
SECTION 9.07. Transactions with Affiliates...................................47
ARTICLE X
Events of Default 48
SECTION 10.01. Failure To Pay Principal or Interest..........................48
SECTION 10.02. Failure To Pay Other Sums.....................................48
SECTION 10.03. Failure To Pay Other Debt.....................................48
SECTION 10.04. Misrepresentation or Breach of Warranty.......................49
SECTION 10.05. Violation of Certain Covenants................................49
SECTION 10.06. Violation of Other Covenants, etc............................49
SECTION 10.07. Undischarged Judgment........................................49
SECTION 10.08. ERISA.........................................................49
SECTION 10.09. Change of Control.............................................49
SECTION 10.10. Assignment for Benefit of Creditors or Nonpayment of Debts....49
SECTION 10.11. Voluntary Bankruptcy..........................................49
SECTION 10.12. Involuntary Bankruptcy........................................50
SECTION 10.13. Dissolution...................................................50
SECTION 10.14. Interest on PRIZES............................................50
ARTICLE XI
Modifications, Amendments or Waivers 50
ARTICLE XII
The Administrative Agent 51
SECTION 12.01. Appointment of Administrative Agent...........................51
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SECTION 12.02. Indemnification of Administrative Agent.......................51
SECTION 12.03. Limitation of Liability.......................................52
SECTION 12.04. Independent Credit Decision...................................52
SECTION 12.05. Rights of Chase...............................................52
SECTION 12.06. Successor to the Administrative Agent.........................53
SECTION 12.07. Other Agents..................................................53
ARTICLE XIII
Miscellaneous 53
SECTION 13.01. Payment of Expenses...........................................53
SECTION 13.02. Notices.......................................................54
SECTION 13.03. Setoff........................................................54
SECTION 13.04. Indemnity and Judgments.......................................55
SECTION 13.05. Interest......................................................56
SECTION 13.06. Governing Law; Submission to Jurisdiction; Venue..............57
SECTION 13.07. Survival of Representations and Warranties; Binding Effect;
Assignment....................................................57
SECTION 13.08. Counterparts..................................................61
SECTION 13.09. Severability..................................................61
SECTION 13.10. Descriptive Headings..........................................61
SECTION 13.11. Representation of the Banks...................................61
SECTION 13.12. Final Agreement of the Parties................................61
SECTION 13.13. Waiver of Jury Trial..........................................61
SECTION 13.14. Designation of Obligations as Designated Senior Indebtedness..61
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6
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) - Officers' Certificate
Exhibit 9.01(d) - List of Liens and Security Interests
Exhibit 13.02 - Addresses for Notices
Exhibit 13.07(c) - Assignment and Acceptance
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THIS FIVE-YEAR 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 $900,000,000. 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
SECTION 1.01. Defined Terms . As used in this Agreement, the
following words and terms shall have the respective meanings indicated opposite
each of them 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 Five-Year 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.
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"Alternate Base Rate Loans" shall mean those Loans which may
be made under 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.
"Alternate Currency" shall mean British pounds sterling,
Japanese yen, Canadian dollars or the Euro.
"Alternate Currency Borrowings" and individually "Alternate
Currency Borrowing", shall mean borrowings by the Company under Section 2.04
consisting of simultaneous Loans from the Banks under each such Bank's Alternate
Currency Commitment.
"Alternate Currency Commitment" shall mean, subject to Section
4.02, as to each Bank, the Dollar equivalent of 55.55% of each Bank's initial
Commitment (as set forth on Exhibit 2.01(a), attached hereto) or as set forth in
an Assignment and Acceptance, as such Commitment (a) may be reduced from time to
time pursuant to this Agreement or (b) may be increased or reduced from time to
time pursuant to an Assignment and Acceptance.
"Alternate Currency Loans" and individually, "Alternate
Currency Loan", shall mean those Loans which may be made under this Agreement
and which are described in Section 2.04(a).
"Alternate Currency Reference Banks" shall mean Chase and its
Affiliates, Citicorp U.S.A., Inc. and Morgan Guaranty Trust Company of New York.
"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 or Alternate Currency Borrowings.
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"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 or
Alternate Currency Reference Banks, as the case may be, and the Administrative
Agent are open for business; provided that if the applicable Business Day
relates to Eurodollar Loans or Eurocurrency Loans, it shall mean a day when the
Reference Banks or the Alternate Currency Reference Banks, as the case may be,
and the Administrative Agent are open for business and banks are authorized to
be open for business in London and New York; further provided that if the
applicable Business Day relates to an Alternate Currency Loan, it shall
additionally mean a day when banks are open for business in (i) the country of
issue of the currency of such Alternate Currency Loan and (ii) Frankfurt am
Main, Germany (or such principal financial center or centers in such
Participating Member State or States as the Administrative Agent may from time
to time nominate for this purpose).
"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.
"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
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(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.
"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.
"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
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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 Debt obligations 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 (other than Alternate Currency 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.
"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%.
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"Debt" shall mean with respect to any Person and without
duplication (i) indebtedness for borrowed money or for the deferred purchase
price of Property in respect of which such Person is liable, contingently or
otherwise, as obligor, guarantor or otherwise, or in respect of which such
Person directly or indirectly assures a creditor against loss, and (ii) the
capitalized portions of obligations under leases which shall have been or should
have been, in accordance with GAAP, recorded as capital leases.
"Default Rate" shall mean a rate per annum (for the actual
number of days elapsed, based on a year of 365 or 366 days, as the case may be)
which shall be equal to the lesser of (i) in the case of a Conventional Loan,
the Alternate Base Rate plus 1%, or the Highest Lawful Rate and (ii) in the case
of an Alternate Currency Loan, the Eurocurrency Rate plus the applicable Margin
Percentage plus 1%, or the Highest Lawful Rate; provided that after the end of
any applicable Interest Period, if the rate provided for in clause (ii) is not
available, then the Default Rate shall be the rate provided for in clause (i).
"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 $1,643,617,000 issued pursuant to the Prospectus Supplement.
"Discretionary Alternate Currency" shall mean any lawful
currency other than Dollars which is freely transferable and convertible into
Dollars.
"Discretionary Borrowings" and individually, "Discretionary
Borrowing", shall mean borrowings by the Company under Section 2.06 consisting
of Discretionary Loans.
"Discretionary Loans" and individually, "Discretionary Loan",
shall mean loans made by a Bank pursuant to Section 2.06, including, without
limitation, Discretionary Loans made in a Discretionary Alternate Currency.
"Dollars" and "$" shall mean lawful currency of the United
States of America.
"EMU" means economic and monetary union as contemplated in the
Treaty on European Union.
"EMU Legislation" means legislative measures of the European
Council for the introduction of, changeover to or operation of a single or
unified European currency (whether known as the Euro or otherwise), being in
part the implementation of the third stage of EMU.
"ERISA" shall mean the Employee Retirement Income Security Act
of 1974, as amended.
"Euro" means the single currency of Participating Member State
of the European Union.
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"Eurocurrency Loans" shall mean those Loans which may be made
under this Agreement and which are described in Section 2.01(d)(iv) on which the
Company shall pay interest at a rate based on the Eurocurrency Rate.
"Eurocurrency Rate" for any Interest Period shall mean, for
each Eurocurrency Loan comprising part of the relevant Alternate Currency
Borrowing, the rate per annum determined by the Administrative Agent at
approximately 10:00 am (New York, New York time) on the Quotation Day for such
Interest Period by reference to the British Bankers' Association Interest
Settlement Rates for deposits in the currency of such Alternate Currency
Borrowing (as reflected on the applicable Telerate screen), for a period equal
to such Interest Period; provided that, to the extent that an interest rate is
not ascertainable pursuant to the foregoing provisions of this definition,
"Eurocurrency Rate" shall be the interest rate 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) of the rate per annum
at which deposits in the relevant Alternate Currency are offered for such
Interest Period by the lending office of each Alternate Currency Reference Bank
to a prime bank in the London interbank market at 10:00 am (New York, New York
time) on the date two Business Days prior to the beginning of such Interest
Period and in an amount substantially equal to the amount of the relevant
Eurocurrency Loan of such Alternate Currency Reference Bank to be outstanding
during such Interest Period.
"Eurodollar Event" or "Eurocurrency 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) 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.
"Euro Unit" means the currency unit of the Euro.
"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
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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 Credit Agreements" shall mean (a) 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 and (b) 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.
"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.
"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.
"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
<PAGE> 15
9
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.
"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 or Eurocurrency
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
or the Notice of Alternate Currency Borrowing; provided, however, that (i) no
Interest Period
<PAGE> 16
10
for a Conventional Loan or an Alternate Currency 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 or Eurocurrency 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 or
Eurocurrency 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 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
<PAGE> 17
11
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, Alternate Currency 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 Maturity 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 (calculated in its Dollar equivalent).
"Margin Percentage" shall mean at any date that percentage (a)
to be added to the CD Rate or the Eurodollar Rate or the Eurocurrency Rate, as
appropriate, pursuant to Section 2.01(d)(i), Section 2.01(d)(iii) or Section
2.01(d)(iv), for purposes of determining the per annum rate of interest
applicable from time to time to CD Rate Loans or Eurodollar Loans or
Eurocurrency Loans and (b) to be used in computing the Commitment Fee pursuant
to Section 4.01(a), 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>
<CAPTION>
Rating Commitment Fee Eurodollar/ CD Spread
Eurocurrency
Spread
<S> <C> <C> <C> <C>
Category 1 >A-/A3/A- 0.100% 0.400% 0.525%
Category 2 BBB+/Baa1/ 0.125% 0.500% 0.625%
BBB+
Category 3 BBB/Baa2/ 0.150% 0.625% 0.750%
BBB
Category 4 BBB-/Baa3/ 0.200% 0.750% 0.875%
BBB-
Category 5 <BB+/Ba1/ 0.250% 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 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
<PAGE> 18
12
(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 September 26, 2005.
"Maximum Permissible Rate" shall have the meaning set forth in
Section 13.05.
"Moody's" shall mean Moody's Investors Service, Inc.
"National Currency Unit" means the Unit of currency (other
than a Euro Unit) of a Participating Member State.
"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-employment benefit liabilities and liabilities related to
environmental matters
<PAGE> 19
13
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 Alternate Currency Borrowing" shall have the
meaning set forth in Section 2.04(b).
"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.
"Participating Member State" means each state so described in
any EMU legislation.
"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 364-Day Credit Agreement and any
outstanding commercial paper in
<PAGE> 20
14
respect of which Commitments under this Agreement or the 364-Day Credit
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.
"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.
"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.
"Quotation Day" means, with respect to any Alternate Currency
Borrowing and any Interest Period, the day on which it is market practice on the
relevant interbank market for prime banks to give quotations for deposits in the
currency of such Alternate Currency Borrowing for delivery on the first day of
such Interest Period. If such quotations would normally be given by prime banks
on more than one day, the Quotation Day will be the last of such days.
"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.
<PAGE> 21
15
"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 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.
"364-Day Agreement" shall mean the 364-Day Credit Agreement
dated September 26, 2000, among the Company, certain lenders thereto and Chase
as Administrative Agent for the lenders.
"Treaty on European Union" means the Treaty of Rome of March
25, 1957, as amended by the Single European Act 1986 and the Maastricht Treaty
(which was signed at Maastricht on February 7, 1992, and came into force on
November 1, 1993), as amended from time to time.
"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.
SECTION 1.02. Redenomination of Certain Foreign Currencies.
Each obligation of any party to this Agreement to make a payment denominated in
the National Currency Unit of any member state of the European Union that adopts
the Euro as its lawful currency after the date hereof shall be redenominated
into the Euro
<PAGE> 22
16
at the time of such adoption (in accordance with the EMU Legislation).
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 such Bank's Commitment,
less the principal amount outstanding at such time of all Alternate Currency
Loans (calculated in its Dollar equivalent on the Borrowing Date of such
Conventional Loan) made to the Company by such Bank, if any; provided, however,
in no event shall the aggregate outstanding principal amount at any time of
Conventional Loans, Alternate Currency Loans and Discretionary Loans, each
calculated in its Dollar equivalent, as applicable, exceed $900,000,000, 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
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
<PAGE> 23
17
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 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 (A) 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, that the Eurodollar Rate does not reflect the cost of funding by the Banks
or that adequate and fair means do not exist to be able to determine the
Eurodollar Rate, or (B) with respect to Eurocurrency Loans to be made by them on
the applicable Borrowing Date of such Eurocurrency Loan that there is a
reasonable probability that deposits in such Alternate Currency will not be
offered to such Banks in the interbank domestic eurocurrency market for a period
of time equal to the applicable Interest Period in
<PAGE> 24
18
amounts equal to each such Bank's Eurocurrency Loan in such Alternate Currency,
or, that the Eurocurrency Rate does not reflect the cost of funding by the Banks
or that adequate and fair means do not exist to be able to determine the
Eurocurrency Rate, 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,
Eurocurrency 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) Each Eurocurrency Loan shall be made in the Alternate
Currency specified in the applicable Notice of Alternate Currency
Borrowing and shall bear interest on the unpaid principal amount
thereof from time to time outstanding, payable in such Alternate
Currency, at a rate per annum (for the actual number of days elapsed,
based on a year of 360 days; provided that for British pounds sterling,
and for any other Alternate Currency as to which the Administrative
Agent has delivered to the Company and to each Bank certification in
writing that as to such other Alternate Currency a 365 or 366 day year,
as the case may be, is customarily used as a basis for such
calculation, on a year of 365 or 366 days, as the case may be), which
shall be equal to the lesser of (A) the Eurocurrency Rate plus the
applicable Margin Percentage, or (B) the Highest Lawful Rate; provided,
<PAGE> 25
19
however, that the failure of the Administrative Agent to deliver such
certification to the Company and each Bank shall not affect the basis
for such calculation used by the Administrative Agent.
(v) Interest on the outstanding principal of each Loan
shall accrue from and including the Borrowing Date for such Loan to but
excluding the date such Loan is paid in full and shall be due and
payable (A) on the Interest Payment Date for each such Loan, (B) as to
any Eurodollar Loan or Eurocurrency 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.
(vi) 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" or "Eurocurrency Event"), for such Bank or its
foreign branch or branches to maintain or fund any Loan in Dollars or in any
Alternate Currency by means of Dollar or Alternate Currency deposits, as the
case may be, obtained in the interbank eurodollar market, or interbank domestic
eurocurrency market, in the case of Eurocurrency Loans, then, at the option of
such Bank, the aggregate principal amount of each of such Bank's Eurodollar
Loans or Eurocurrency Loans, as the case may be, then outstanding, which Loans
are directly affected by such Eurodollar Events or Eurocurrency Events, shall be
prepaid in Dollars or in such Alternate Currency, as the case may be, and any
remaining obligation of such Bank hereunder to make Eurodollar Loans (but not CD
Rate Loans, Alternate Base Rate Loans or Eurocurrency Loans) or Eurocurrency
Loans in such Alternate Currency (but not Eurodollar Loans, CD Rate Loans,
Alternate Base Rate Loans or Eurocurrency Loans in another Alternate Currency),
as the case may be, shall be suspended for so long as such Eurodollar Events or
Eurocurrency Events shall continue. Upon the occurrence of any Eurodollar Event
or Eurocurrency Event, and at any time thereafter so long as such Eurodollar
Event or Eurocurrency 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 or Eurocurrency Loan, as the case
may be, 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
<PAGE> 26
20
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 or Eurocurrency
Loan, as the case may be, 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 or Eurocurrency Loan, as the case may be, 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, or its Dollar equivalent
in Alternate Currency, as the case may be, as the Eurodollar Loan or
Eurocurrency 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 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, or its Dollar equivalent in Alternate
Currency, if such Loan is an Alternate Currency Loan, 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 and Exchange 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, Eurodollar
Loan or Eurocurrency 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, Eurodollar Loan or Eurocurrency
Loan made after the delivery of the Notice of Conventional Borrowing or Notice
of Alternate Currency Borrowing, as the case may be, for such CD Rate Loan,
Eurodollar Loan or Eurocurrency Loan, but before the Borrowing Date therefor, if
such payment or prepayment prevents such CD Rate Loan, Eurodollar Loan or
Eurocurrency Loan from being made in full, (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 Section 2.05(b) or due to any other action
or inaction of the Company, or (iv) the failure to pay any Alternate Currency
Loan or interest thereon in the Alternate Currency in which it was made, the
Company shall pay, in Dollars, or its Dollar equivalent in Alternate Currency,
as the case may be, if such Loan is an Alternate Currency Loan, to each affected
Bank upon its request made on or
<PAGE> 27
21
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 (including,
without limitation, direct losses due to currency exchange rates and exchange
controls) incurred by such Bank (including, without limitation, such amount or
amounts as will compensate it for (A) the amount by which the rate of interest
on such Loan immediately prior to such repayment exceeds the Eurodollar Rate,
Eurocurrency 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, (B) any loss incurred in liquidating or closing out any foreign
currency contract undertaken by such Bank in funding or maintaining such
Alternate Currency Loan, and (C) any loss arising from any change in the value
of Dollars in relation to any such Alternate Currency Loan which was not paid on
the date due between the date such payment was due and the date of payment, or
which was not paid in the Alternate Currency in which it was made, all as
determined by such Bank in its good faith discretion), 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.
(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,
if no Event of Default has occurred, repay such refund to the Company with
interest if any interest is received thereon by such Bank or the Administrative
Agent; provided, that if an Event of Default has occurred and is continuing,
such refund shall be applied to the outstanding loans or paid to the Company
<PAGE> 28
22
once such Event of Default no longer exists; provided further, 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, Eurocurrency 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, the interbank eurodollar market or the interbank eurocurrency
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 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.
<PAGE> 29
23
(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 or the Dollar equivalent in Alternate
Currency, if any such Loan is an Alternate Currency Loan, 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 case may be. Upon such sale or prepayment, each such Bank shall have no
further Commitment or other obligation to the Company hereunder.
<PAGE> 30
24
(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.
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
<PAGE> 31
25
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, or its Dollar equivalent in Alternate Currency, as the case may be,
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. Alternate Currency Loans . (a) Alternate
Currency Commitment. Subject to and upon the terms and conditions set forth in
this Agreement, each Bank severally agrees to make Alternate Currency 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 Alternate
Currency Loans (calculated in its Dollar equivalent) not exceeding at any one
time outstanding an amount equal to such Bank's Alternate Currency Commitment;
provided, however, in no event shall the aggregate outstanding principal amount
of Conventional Loans, Discretionary Loans and Alternate Currency Loans (each
calculated in its Dollar equivalent) made by any Bank exceed such Bank's
Commitment; provided, further, that in no event shall the aggregate outstanding
principal amount of all Alternate Currency Loans and Discretionary Loans made in
a Discretionary Alternate Currency (each calculated in its Dollar equivalent)
made by all
<PAGE> 32
26
Banks exceed $500,000,000. Each Alternate Currency Borrowing shall be in an
aggregate amount of not less than $3,000,000 (or the equivalent thereof in any
Alternate Currency), and an integral multiple of $250,000 (or the equivalent
thereof in any Alternate Currency). Each Alternate Currency Borrowing shall be
made simultaneously from the Banks ratably according to their Pro Rata Shares of
their respective Alternate Currency Commitments and shall consist of
Eurocurrency Loans with the same Interest Period made in the same currency from
each Bank. Within such limits and during such period, the Company may borrow,
repay and reborrow under this Section 2.04(a) (including, without limitation,
reborrowings for the sole purpose of refinancing any Loan). The Company hereby
unconditionally promises to pay to the Administrative Agent for the account of
each Bank the then unpaid principal amount of each Alternate Currency Loan on
the Interest Payment Date for such Alternate Currency Loan. For purposes of this
Section 2.04(a) and all other provisions of this Article II, the equivalent in
Dollars of any Alternate Currency or the equivalent in any Alternate Currency of
Dollars shall be determined in accordance with Section 2.05(a). Each Alternate
Currency Loan shall be a Loan evidenced in accordance with Section 2.01(b)(ii),
shall constitute a Eurocurrency Loan which bears interest pursuant to Section
2.01(d)(iv) hereof and shall be repaid in the same currency in which it was
made.
(b) Alternate Currency Borrowing Procedure. Each
Alternate Currency Loan under this Section 2.04 shall be made on at least 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, upon receipt of such notice provide to each Bank
prior oral or written notice by 3:00 p.m. (New York, New York time) on the date
such notice is received by the Administrative Agent) ("Notice of Alternate
Currency Borrowing"); provided, however, with respect to each oral Notice of
Alternate Currency Borrowing, the Company shall deliver promptly to the
Administrative Agent a confirmatory written Notice of Alternate Currency
Borrowing, and upon receipt of such notice the Administrative Agent shall
promptly notify each Bank of such notice. Each Notice of Alternate Currency
Borrowing shall be irrevocable and shall specify: (i) the total principal amount
of the proposed Alternate Currency Loan, (ii) the applicable Interest Period for
such Alternate Currency Loan (which may not extend beyond the Maturity Date),
(iii) the Borrowing Date, (iv) the currency of such Borrowing and (v) the demand
deposit account of the Company into which the funds with respect to such
Alternate Currency Borrowing shall be deposited.
(c) Each Bank shall, before 11:00 a.m. (New York, New
York time) on the date of each such Alternate Currency Borrowing, make available
to the Administrative Agent in the case of a Borrowing in an Alternate Currency,
at the office of Chase, its Affiliates or its correspondent banks, for such
Alternate Currency (as such office shall have been notified by the
Administrative Agent to the Banks reasonably prior thereto) in same day funds,
such Bank's Pro Rata Share of such Alternate Currency Borrowing in such
Alternate Currency. After the Administrative Agent's receipt of such funds and
upon fulfillment of the applicable conditions set forth in Article VII, the
Administrative Agent will make such funds available to the Company at the demand
deposit account of the Company designated by the Company in its Notice of
Alternate Currency Borrowing.
SECTION 2.05. Currency Equivalents . (a) For purposes of the
provisions of this Agreement, (i) the equivalent in Dollars of any Alternate
Currency and (ii) the equivalent in any Alternate Currency of Dollars shall be
determined by using
<PAGE> 33
27
the quoted spot rate at which Chase or any Affiliate of Chase offers to exchange
Dollars for such Alternate Currency in New York City, at 10:00 a.m. (New York,
New York time) two Business Days prior to the date on which such equivalent is
to be determined pursuant to the provisions of this Agreement (subject to
Section 4.01(c) with respect to calculation of the Commitment Fees and the
Utilization Fee) and the Administrative Agent shall notify each affected Bank of
such determination on such date. The equivalent in Dollars of each Loan made in
an Alternate Currency shall be recalculated hereunder on each date that it shall
be necessary to determine the unused portion of each Bank's Commitment or
Alternate Currency Commitment, or the amount of any or all Loans outstanding on
such date.
(b) In the event that there shall occur on or prior to
the date of an Alternate Currency Borrowing any material adverse change in
national or international financial, political or economic conditions or
currency exchange rates or exchange controls which would in the opinion of the
Majority Banks make it impracticable for the Eurocurrency Loans comprising such
Alternate Currency Borrowing to be denominated in the Alternate Currency
specified by the Company, then the Administrative Agent shall forthwith give
notice thereof to the Company and the Banks, and such Loans shall not be
denominated in such Alternate Currency but shall be made on the date of such
Borrowing in Dollars as Alternate Base Rate Loans, unless the Company shall have
notified the Administrative Agent at least two Business Days before such date
that it elects not to borrow on such date.
SECTION 2.06. 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 under its Commitment in Dollars, or in a
Discretionary Alternate Currency, as the case may be, on any one or more
Business Days on or after the date hereof and prior to the Maturity 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 Alternate Currency Loans (each calculated in its
Dollar equivalent, as applicable) 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 or an
Alternate Currency Borrowing is to be made, such Conventional Borrowing or
Alternate Currency Borrowing shall be made available only if the Company has
paid or shall simultaneously with the making of such Conventional Borrowing or
Alternate Currency 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 or Alternate Currency Borrowing. No Discretionary Loan shall have a
maturity date or interest period that extends beyond the Maturity 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 2.06 (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
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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, or its Dollar equivalent if such Loan is in a Discretionary
Alternate Currency, 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, or its Dollar equivalent if such Loan is in a Discretionary
Alternate Currency, 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 2.07. 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 2.08. 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, 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 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 II
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
<PAGE> 35
29
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, Eurodollar Loan or Eurocurrency 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, or the Dollar equivalent in an Alternate Currency, as the
case may be; 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, Eurocurrency 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, the Alternate Currency Loans and the Discretionary Loans, each
calculated in its Dollar equivalent, as applicable, held by such Bank
that exceeds the amount of the Commitment of such Bank immediately
after such reduction and that part of such unpaid principal amount
outstanding of the Alternate Currency Loans calculated in its Dollar
equivalent held by such Bank that exceeds the amount of the Alternate
Currency Commitment of such Bank immediately after giving effect to
such reduction; and
(ii) in the case of termination of the Commitments, the
entire unpaid principal amount of the Conventional Loans, the Alternate
Currency Loans and the Discretionary Loans, each calculated in its
Dollar equivalent, as applicable;
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.
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(b) (i) If on any Borrowing Date the principal amount
outstanding of the Conventional Loans, Discretionary Loans and Alternate
Currency Loans (calculated in its Dollar equivalent), as the case may be, made
to the Company by any Bank shall exceed the Commitment of such Bank, or the
Alternate Currency Loans (calculated in its Dollar equivalent) shall exceed the
Alternate Currency 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
364-Day Agreement or outstanding commercial paper in respect of which
Commitments under this Agreement or the 364-Day 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 364-Day Credit Agreement and the Commitments under this
Agreement and the 364-Day Credit 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 364-Day Credit
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 364-Day Credit 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 required by Section 3.02(a)
or Section 3.02(b) with respect to any Loan would become due on a date
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31
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, (i) 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 and (ii) in the case of Alternate Currency Loans, and subject to the
provisions of Section 2.01(f), towards payment of all Eurocurrency Loans. 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 shall 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), Section 2.04 or Section 2.06
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 . (a)
All payments and prepayments made in accordance with the provisions of this
Agreement (other than with respect to Alternate Currency Loans and Discretionary
Loans made in a Discretionary Alternate Currency) 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. All payments and prepayments made in accordance with the
provisions of this Agreement in respect of the Alternate Currency Loans shall be
made in the applicable Alternate Currency to the Administrative Agent at such
office of Chase, its Affiliates or its correspondents, as shall be from time to
time selected by the Administrative Agent and notified by the Administrative
Agent to the Company and 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
<PAGE> 38
32
outstanding for any purpose after the date of such payment to the Administrative
Agent. Any amount payable by the Administrative Agent to the Banks under this
Agreement in the currency of a Participating Member State shall be paid in the
Euro Unit.
(b) Payments by the Administrative Agent Generally. With
respect to the payment of any amount denominated in the Euro or in a National
Currency Unit, the Administrative Agent shall not be liable to the Company or
any of the Banks in any way whatsoever for any delay, or the consequences of any
delay, in the crediting to any account of any amount required by this Agreement
to be paid by the Administrative Agent if the Administrative Agent shall have
taken all relevant steps to achieve, on the date required by this Agreement, the
payment of such amount in immediately available, freely transferable, cleared
funds (in the Euro Unit or, as the case may be, in a National Currency Unit) to
the account with the bank in the principal financial center in the Participating
Member State which the Company or, as the case may be, any Bank shall have
specified for such purpose. In this paragraph (b), "all relevant steps" means
all such steps as may be prescribed from time to time by the regulations or
operating procedures of such clearing or settlement system as the Administrative
Agent may from time to time determine for the purpose of clearing or settling
payments of the Euro.
SECTION 3.05. Basis of Accrual . If the basis of accrual of
interest or fees expressed in this Agreement with respect to the currency of any
state that becomes a Participating Member State shall be inconsistent with any
convention or practice in the London Interbank Market for the basis of accrual
of interest or fees in respect of the Euro, such convention or practice shall
replace such expressed basis effective as of and from the date on which such
state becomes a Participating Member State; provided that if any Loan in the
currency of such state is outstanding immediately prior to such date, such
replacement shall take effect, with respect to such Loan, at the end of the then
current Interest Period for such Loan.
SECTION 3.06. Rounding and Other Consequential Changes.
Without prejudice and in addition to any method of conversion or rounding
prescribed by any EMU Legislation and without prejudice to the respective
liabilities of the Company to the Banks and the Banks to the Company under or
pursuant to this Agreement:
(i) each reference in this Agreement to a minimum amount
(or an integral multiple thereof) in a National Currency Unit to be
paid to or by the Administrative Agent shall be replaced by a reference
to such reasonably comparable and convenient amount (or an integral
multiple thereof) in the Euro Unit as the Administrative Agent may from
time to time specify; and
(ii) except as expressly provided in this Section 3.06,
each provision of this Agreement shall be subject to such reasonable
changes of construction as the Administrative Agent may from time to
time specify to be necessary or appropriate to reflect the introduction
of or changeover to the Euro in Participating Member States.
<PAGE> 39
33
ARTICLE IV
Fees; Reduction of Commitments
SECTION 4.01. Commitment Fees; Utilization Fee . (a) The
Company agrees to 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 Maturity Date at a rate per annum equal to the applicable
Margin Percentage from time to time in effect on the daily average unused amount
of the Commitment of such Bank (taking into account all Conventional Loans,
Alternate Currency 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
Maturity 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. 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).
(c) For purposes of determining the unused portion of each
Bank's Commitment solely in order to calculate the Commitment Fees under Section
4.01(a) and the Utilization Fee under Section 4.01(b), the equivalent in Dollars
of each Eurocurrency Loan made by such Bank in an Alternate Currency, as
determined in accordance with Section 2.05 (provided that the calculation shall
be made two Business Days prior to the Borrowing Date with respect to such Loan,
rather than at the date specified in Section 2.05) shall be the amount of such
Bank's Commitment used in connection with such Loan, and no further adjustments
shall be made with respect to the unused portion of such Bank's Commitment based
upon fluctuations thereafter in the value of the Alternate Currency of such
Loan.
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 (and the Alternate Currency
Commitments may not be reduced as provided below to an amount less than the
aggregate principal amount of the outstanding Alternate Currency Loans and the
Discretionary Loans made in a Discretionary Alternate Currency, each calculated
<PAGE> 40
34
in its Dollar equivalent) 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). Any
reduction of the Commitments pursuant to this Section 4.02 shall reduce the
Alternate Currency Commitments proportionately; provided, that in no event shall
the Alternate Currency Commitments be reduced to an amount less than the lesser
of (a) $300,000,000 and (b) the aggregate amount of the Commitments. 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.
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
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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
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.
<PAGE> 42
36
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.
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
<PAGE> 43
37
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.
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
<PAGE> 44
38
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 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.
<PAGE> 45
39
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 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,
<PAGE> 46
40
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)
or Notice of Alternate Currency Borrowing required by Section 2.04(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 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
<PAGE> 47
41
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 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
<PAGE> 48
42
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 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
<PAGE> 49
43
(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 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
<PAGE> 50
44
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> 51
45
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> 52
46
(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
<PAGE> 53
47
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
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
<PAGE> 54
48
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.
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;
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49
(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 364-Day Credit Agreement; or
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
<PAGE> 56
50
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 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
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51
(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 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
(determined in its Dollar equivalent with respect to any such amounts that
represent
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52
Alternate Currency Loans outstanding) 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 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
(including, without limitation, its Alternate Currency 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
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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
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, oral Notices of Alternate Currency 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 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, Notices of Alternate Currency 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
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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; provided that, for purposes
of this Section 13.03, the equivalent in Dollars of any Alternate Currency or
the equivalent in any Alternate Currency of Dollars received hereunder, shall be
determined in accordance with Section 2.05(a); 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 (including and describing as a
separate item the Alternate Currency 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.
SECTION 13.04. Indemnity and Judgments. (a) 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.
(b) If for the purposes of obtaining judgment in any court it
is necessary to convert a sum due hereunder in an Alternate Currency into
Dollars,
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the parties hereto agree, to the fullest extent that they may effectively do so,
that the rate of exchange used shall be the rate of exchange determined in
accordance with Section 2.05(a) two Business Days prior to the date on which
final judgment is given.
(c) The obligation of the Company in respect of any sum due in
any Alternate Currency from it to any Bank or the Administrative Agent hereunder
shall, notwithstanding any judgment in a currency (the "Judgment Currency")
other than the currency in which such sum is stated to be due hereunder (the
"Agreement Currency"), be discharged only to the extent that on the Business Day
following receipt by such Bank or the Administrative Agent (as the case may be)
of any sum adjudged to be so due in the Judgment Currency, such Bank or the
Administrative Agent (as the case may be) may, in accordance with normal banking
procedures in the relevant jurisdiction purchase the Agreement Currency with the
Judgment Currency; if the amount of the Agreement Currency so purchased is less
than the sum originally due to such Bank or the Administrative Agent (as the
case may be) in the Agreement Currency, the Company agrees, as a separate
obligation and notwithstanding any such judgment, to indemnify such Bank or the
Administrative Agent (as the case may be) against such loss, and if the amount
of the Agreement Currency so purchased exceeds the sum originally due to any
Bank or the Administrative Agent (as the case may be) in the Agreement Currency,
such Bank or the Administrative Agent (as the case may be) agrees to remit to
the Company such excess. The obligations of the Company contained in this
Section 13.04 shall survive the termination of this Agreement and the payment of
all other amounts owing hereunder.
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
<PAGE> 62
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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 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.
<PAGE> 63
58
(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 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
<PAGE> 64
59
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 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
<PAGE> 65
60
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 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
<PAGE> 66
61
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.
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> 67
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> 68
COX COMMUNICATIONS, INC.,
by
/s/ Jimmy W. Hayes
---------------------------------------------
Name: Jimmy W. Hayes
Title: Executive Vice President, Finance and
Chief Financial Officer
<PAGE> 69
THE CHASE MANHATTAN BANK, individually and as
Administrative Agent
by
/s/ Constance M. Coleman
-----------------------------------------
Name: Constance M. Coleman
Title: Vice President
<PAGE> 70
THE BANK OF NEW YORK,
by
/s/ Cynthia L. Rogers
---------------------------------------------
Name: Cynthia L. Rogers
Title: Vice President
BANK OF AMERICA, N.A.,
by
/s/ Pamela S. Kurtzman
---------------------------------------------
Name: Pamela S. Kurtzman
Title: Principal
THE DAI-ICHI KANGYO BANK, LIMITED,
by
/s/ Nancy Stengel
---------------------------------------------
Name: Nancy Stengel
Title: Vice President
WACHOVIA BANK, N.A.,
by
/s/ J. Timothy Toler
---------------------------------------------
Name: J. Timothy Toler
Title: Senior Vice President
BANK ONE, N.A.,
by
/s/ Jennifer L. Jones
---------------------------------------------
Name: Jennifer L. Jones
Title: Commercial Banking Officer
<PAGE> 71
CITIBANK, N.A.,
by
/s/ Elaine Henry
---------------------------------------------
Name: Elaine Henry
Title: Senior Banker
<PAGE> 72
FIRST UNION NATIONAL BANK,
by
/s/ Kevin Shea
---------------------------------------------
Name: Kevin Shea
Title: Vice President
<PAGE> 73
FLEET NATIONAL BANK,
by
/s/ Tanya M. Crossley
---------------------------------------------
Name: Tanya M. Crossley
Title: Director
<PAGE> 74
MELLON BANK, N.A.,
by
/s/ Alexander M. Gordon
---------------------------------------------
Name: Alexander M. Gordon
Title: Assistant Vice President
<PAGE> 75
SUNTRUST BANK,
by
/s/ Edwin D. Brooks, Jr.
---------------------------------------------
Name: Edwin D. Brooks, Jr.
Title: Managing Director
<PAGE> 76
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> 77
THE BANK OF TOKYO-MITSUBISHI TRUST COMPANY,
by
/s/ S. Akita
---------------------------
Name: S. Akita
Title: Vice President
<PAGE> 78
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> 79
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> 80
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> 81
Morgan Guaranty Trust
Company of New York
by /s/ DENNIS WILCZEK
-------------------
Name: Dennis Wilczek
Title: Associate
<PAGE> 82
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> 83
MERRILL LYNCH CAPITAL CORPORATION,
by
/s/ S. McGillicuddy
---------------------------------------------
Name: S. McGillicuddy
Title: VP
<PAGE> 84
THE SANWA BANK, acting through its New York
Branch,
by
/s/ P. Bartlett Wu
---------------------------------------------
Name: P. Bartlett Wu
Title: Vice President
<PAGE> 85
THE SUMITOMO BANK, LIMITED,
by
/s/ C. Michael Garrido
---------------------------------------------
Name: C. Michael Garrido
Title: Senior Vice President
<PAGE> 86
BANK OF OKLAHOMA, N.A.,
by
/s/ Elaine A. Hood
---------------------------------------------
Name: Elaine A. Hood
Title: Vice President
<PAGE> 87
PNC BANK, National Association,
by
/s/ Steven J. McGehrin
---------------------------------------------
Name: Steven J. McGehrin
Title: Vice President
<PAGE> 88
BANK OF HAWAII,
by
/s/ Luke Yeh
---------------------------------------------
Name: Luke Yeh
Title: Vice President
<PAGE> 89
THE BANK OF NOVA SCOTIA,
by
/s/ P.A. Weissenberger
---------------------------------------------
Name: P.A. Weissenberger
Title: Authorized Signatory
<PAGE> 90
FIRST HAWAIIAN BANK,
by
/s/ Seydou Diallo
---------------------------------------------
Name: Seydou Diallo
Title: Media Finance Officer
<PAGE> 91
TOKAI BANK, LIMITED,
by
/s/ Shinichi Nakatani
---------------------------------------------
Name: Shinichi Nakatani
Title: Assistant General Manager
<PAGE> 92
WELLS FARGO BANK, N.A.,
by
/s/ Jack Haye
---------------------------------------------
Name: Jack Haye
Title: Senior Vice President
<PAGE> 93
HIBERNIA NATIONAL BANK,
by
/s/ G. Jeffrey Jones
---------------------------------------------
Name: G. Jeffrey Jones
