Exhibit
10.3
$350,000,000
CREDIT
AGREEMENT
CCO
HOLDINGS, LLC,
as
Borrower,
BANC
OF
AMERICA SECURITIES LLC
and
J. P.
MORGAN SECURITIES INC.,
as
Co-Lead Arrangers
BANC
OF
AMERICA SECURITIES LLC, J. P. MORGAN SECURITIES INC.,
CITIGROUP
GLOBAL MARKETS, INC., CREDIT SUISSE SECURITIES (USA) LLC AND
DEUTSCHE
BANK SECURITIES INC.
as
Joint
Bookrunners
BANK
OF
AMERICA, N.A.
as
Administrative Agent
BANC
OF
AMERICA SECURITIES LLC and J. P. MORGAN SECURITIES INC.
as
Co-Syndication Agents
and
CITIGROUP
GLOBAL MARKETS, INC., CREDIT SUISSE SECURITIES (USA) LLC
And
DEUTSCHE BANK SECURITIES INC.
as
Co-Documentation Agents
Dated
as
of March 6, 2007
| SECTION I. DEFINITIONS |
1
|
| |
|
|
|
| |
Section
1.1. |
Defined
Terms |
1
|
| |
Section
1.2. |
Other
Definitional Provisions
|
29
|
| SECTION 2.
AMOUNT AND TERMS OF COMMITMENTS |
29
|
| |
|
|
|
| |
Section
2.1. |
Commitments
|
29
|
| |
Section
2.2. |
Procedure
for Borrowing
|
30
|
| |
Section
2.3. |
Repayment
of Loans
|
30
|
| |
Section
2.4. |
[RESERVED] |
30
|
| |
Section
2.5. |
[RESERVED] |
30
|
| |
Section
2.6. |
Fees |
30
|
| |
Section
2.7. |
[RESERVED] |
30
|
| |
Section
2.8. |
Optional
Prepayments |
30
|
| |
Section
2.9. |
Mandatory
Prepayments |
31
|
| |
Section
2.10. |
Conversion
and Continuation Options |
31
|
| |
Section 2.11. |
Limitations on Eurodollar
Tranches |
31
|
| |
Section
2.12. |
Interest
Rates and Payment Dates |
32
|
| |
Section
2.13. |
Computation
of Interest and Fees |
32
|
| |
Section
2.14. |
Inability
to Determine Interest Rate |
32
|
| |
Section
2.15. |
Pro
Rata Treatment and Payments |
33
|
| |
Section
2.16. |
Requirements
of Law |
34
|
| |
Section
2.17. |
Taxes |
35
|
| |
Section
2.18. |
Indemnity |
36
|
| |
Section
2.19. |
Change
of Lending Office |
37
|
| |
Section
2.20. |
Replacement
of Lenders |
37
|
| SECTION 4. REPRESENTATIONS
AND
WARRANTIES |
38
|
| |
|
|
|
| |
Section
4.1. |
Financial
Condition
|
38
|
| |
Section
4.2. |
No
Change
|
38
|
| |
Section
4.3. |
Existence;
Compliance with Law |
38
|
| |
Section
4.4. |
Power;
Authorization; Enforceable Obligations |
38
|
| |
Section
4.5. |
No
Legal Bar |
39
|
| |
Section
4.6. |
Litigation |
39
|
| |
Section
4.7. |
No
Default |
39
|
| |
Section
4.8. |
Ownership
of Property; Liens
|
39
|
| |
Section
4.9. |
Intellectual
Property
|
39
|
| |
Section
4.10. |
Taxes |
39
|
| |
Section 4.11. |
Federal
Regulations |
39
|
|
|
Section
4.12. |
Labor
Matters
|
40
|
| |
Section
4.13. |
ERISA |
40
|
| |
Section
4.14. |
Investment
Company Act; Other Regulations |
40
|
| |
Section
4.15. |
Subsidiaries |
40
|
| |
Section
4.16. |
Use
of Proceeds |
40
|
| |
Section 4.17. |
Environmental Matters |
41
|
| |
Section
4.18. |
Certain
Cable Television Matters
|
41
|
| |
Section
4.19. |
Accuracy
of Information, Etc.
|
42
|
| |
Section
4.20. |
Security
Interests |
42
|
| |
Section
4.21. |
Solvency |
43
|
| |
Section
4.22. |
Certain
Tax Matters |
43
|
| SECTION
5. CONDITIONS PRECEDENT |
43
|
| |
|
|
|
| |
Section
5.1. |
Conditions
to Initial Borrowing
|
43
|
| |
Section
5.2. |
Conditions
to the Extension of Credit
|
43
|
| SECTION 6. COVENANTS |
44
|
| |
|
|
|
| |
Section
6.1. |
[RESERVED]
|
44
|
| |
Section
6.2. |
|
44
|
| |
Section
6.3. |
Reports |
45
|
| |
Section
6.4. |
Compliance
Certificate |
45
|
| |
Section
6.5. |
Payment
of Taxes |
45
|
| |
Section
6.6 |
Stay,
Extension and Usury Laws |
45
|
| |
Section
6.7. |
Restricted
Payments |
45
|
| |
Section
6.8. |
Investments
|
48
|
| |
Section
6.9. |
Dividend
and Other Payment Restrictions Affecting Subsidiaries
|
49
|
| |
Section
6.10. |
Incurrence
of Indebtedness and Issuance of Preferred Stock |
50
|
| |
Section 6.11. |
Asset Sales |
53
|
| |
Section
6.12. |
Sales
and Leasebacks |
55
|
| |
Section
6.13. |
Transactions
with Affiliates |
55
|
| |
Section
6.14. |
Liens |
56
|
| |
Section
6.15. |
Existence |
56
|
| |
Section
6.16. |
Change
of Control |
56
|
| |
Section
6.17. |
Limitations
on Issuances of Guarantees of Indebtedness |
57
|
| |
Section
6.18. |
[RESERVED] |
58
|
| |
Section
6.19. |
Application
of Fall-Away Covenants |
58
|
| |
Section
6.20. |
Fundamental
Changes |
58
|
| SECTION
8. EVENTS OF
DEFAULT |
59
|
| |
|
|
|
| |
Section
8.1 |
Events
of Default |
59
|
|
|
Section
8.2. |
|
61
|
| |
Section
8.3. |
Other
Remedies |
61
|
| |
Section
8.4. |
Waiver
of Existing Defaults |
61
|
| |
Section
8.5. |
Priorities |
61
|
| SECTION
9. THE AGENTS |
62
|
| |
|
|
|
| |
Section
9.1 |
Appointment |
62
|
|
|
Section
9.2. |
|
62
|
| |
Section
9.3. |
Exculpatory
Provisions |
62
|
|
|
Section
9.4. |
Reliance
by Administrative Agent |
62
|
| |
Section
9.5. |
Notice
of Default |
63
|
| |
Section
9.6. |
Non-Reliance
on Agents and Other Lenders |
63
|
| |
Section
9.7. |
Indemnification |
63
|
| |
Section
9.8. |
Agent
in Its Individual Capacity |
64
|
| |
Section
9.9. |
Successor
Administrative Agent |
64
|
| |
Section
9.10. |
Co-Documentation
Agents and Co-Syndication Agents |
64
|
| |
Section
9.11. |
Intercreditor
Agreement |
64
|
| SECTION
10. MISCELLANEOUS |
64
|
| |
|
|
|
| |
Section
10.1 |
|
64
|
| |
Section
10.2 |
|
66
|
| |
Section 10.3 |
No
Waiver; Cumulative Remedies
|
67
|
| |
Section 10.4 |
Survival
of Representations and Warranties |
67
|
| |
Section
10.5 |
Payment
of Expenses and Taxes |
67
|
| |
Section
10.6 |
Successors
and Assigns; Participations and Assignments |
68
|
| |
Section
10.7 |
Adjustments;
Set-off
|
71
|
| |
Section
10.8 |
Counterparts |
71
|
| |
Section
10.9 |
Severability |
71
|
| |
Section
10.10 |
Integration |
72
|
| |
Section
10.11 |
GOVERNING
LAW |
72
|
| |
Section
10.12 |
Submission
to Jurisdiction; Waivers |
72
|
| |
Section
10.13 |
Acknowledgments |
72
|
| |
Section
10.14 |
Release
of Liens |
73
|
| |
Section
10.15 |
Confidentiality |
73
|
| |
Section
10.16 |
WAIVERS
OF JURY TRIAL |
74
|
| |
Section
10.17 |
USA
Patriot Act |
74
|
SCHEDULES:
1.1 Term
Commitments
4.15 Subsidiaries
4.20(a)
UCC
Filing Jurisdictions
EXHIBITS:
A Form
of
Pledge Agreement
B Form
of
Intercreditor Agreement
C Form
of
Closing Certificate
D [RESERVED]
E Form
of
Assignment and Assumption
F-1 Form
of
New Lender Supplement
F-2 Form
of
Incremental Facility Activation Notice
G Form
of
Exemption Certificate
H [RESERVED]
I Form
of
Notice of Borrowing
CREDIT
AGREEMENT, dated as of March 6, 2007, among CCO HOLDINGS, LLC, a Delaware
limited liability company (the “Borrower”),
the
several banks and other financial institutions or entities from time to time
parties to this Agreement (the “Lenders”),
BANK
OF AMERICA, N.A., as Administrative Agent (in such capacity, together with
any
successor, the “Administrative
Agent”),
BANC
OF
AMERICA SECURITIES LLC
and
J.P.
MORGAN SECURITIES INC.,
as
co-syndication agents (in such capacity, the “Co-Syndication
Agents”),
and
CITIGROUP GLOBAL MARKETS INC., CREDIT SUISSE SECURITIES (USA) LLC and DEUTSCHE
BANK SECURITIES INC., as co-documentation agents (in such capacity, the
“Co-Documentation
Agents”).
W
I T
N E S S E T H
:
WHEREAS,
the parties hereto wish to provide for the making of Loans and Incremental
Loans
(each as defined below) by the Lenders to the Borrower on the terms set forth
herein.
NOW,
THEREFORE, in consideration of the above premises, the parties hereto hereby
agree as follows:
SECTION
1. DEFINITIONS
1.1. Defined
Terms.
As used
in this Agreement, the terms listed in this Section 1.1 shall have the
respective meanings set forth in this Section 1.1.
“ABR”:
for
any day, a rate per annum (rounded upwards, if necessary, to the next 1/100th
of
1%) equal to the greater of (a) the Prime Rate in effect on such day and (b)
the
Federal Funds Effective Rate in effect on such day plus ½ of 1%. Any change in
the ABR due to a change in the Prime Rate or the Federal Funds Effective Rate
shall be effective as of the opening of business on the effective day of such
change in the Prime Rate or the Federal Funds Effective Rate,
respectively.
“ABR
Loans”:
Loans
the rate of interest applicable to which is based upon the ABR.
“Acquired
Debt”:
with
respect to any specified Person:
(1) Indebtedness
of any other Person existing at the time such other Person is merged with or
into or became a Subsidiary of such specified Person, whether or not such
Indebtedness is incurred in connection with, or in contemplation of, such other
Person merging with or into, or becoming a Subsidiary of, such specified Person;
and
(2) Indebtedness
secured by a Lien encumbering any asset acquired by such specified
Person.
“Administrative
Agent”:
as
defined in the preamble hereto.
“Affiliate”:
as to
any specified Person, any other Person directly or indirectly controlling or
controlled by or under direct or indirect common control with such specified
Person. For purposes of this definition, “control,” as used with respect to any
Person, shall mean the possession, directly or indirectly, of the power to
direct or cause the direction of the management or policies of such Person,
whether through the ownership of voting securities, by agreement or otherwise;
provided
that
beneficial ownership of 10% or more of the Voting Stock of a Person shall be
deemed to be control. For purposes of this definition, the terms “controlling,”
“controlled by,” and “under common control with” shall have correlative
meanings.
“Affiliate
Transaction”:
as
defined in Section 6.13.
“Agents”:
the
collective reference to the Co-Documentation Agents, the Co-Syndication Agents
and the Administrative Agent.
“Aggregate
Exposure”:
with
respect to any Lender at any time, an amount equal to the sum of (1) the
aggregate Term Commitment of such Lender in effect at such time and (2) the
aggregate then unpaid principal amount of such Lender’s Loans.
“Aggregate
Exposure Percentage”:
with
respect to any Lender at any time, the ratio (expressed as a percentage) of
such
Lender’s Aggregate Exposure at such time to the Aggregate Exposure of all
Lenders at such time.
“Agreement”:
this
Credit Agreement, as further amended, supplemented or otherwise modified from
time to time.
“Applicable
Margin”:
(a) with respect to ABR Loans other than Incremental Loans, 1.5% per annum
and, with respect to Eurodollar Loans other than Incremental Loans, 2.50% per
annum; and
(b)
with
respect to Incremental Loans, such per annum rates as shall be agreed to by
the
Borrower and the applicable Incremental Lenders as shown in the applicable
Incremental Facility Activation Notice.
“Approved
Fund”:
as
defined in Section 10.6.
“Asset
Acquisition”
means
(a) an Investment by the Borrower or any of its Restricted Subsidiaries in
any other Person pursuant to which such Person shall become a Restricted
Subsidiary of the Borrower or any of its Restricted Subsidiaries or shall be
merged with or into the Borrower or any of its Restricted Subsidiaries, or
(b) the acquisition by the Borrower or any of its Restricted Subsidiaries
of the assets of any Person which constitute all or substantially all of the
assets of such Person, any division or line of business of such Person or any
other properties or assets of such Person other than in the ordinary course
of
business.
“Asset
Sale”:
(1) the
sale,
lease, conveyance or other disposition of any assets or rights by the Borrower
or a Restricted Subsidiary, other than sales of inventory in the ordinary course
of the Cable Related Business; provided
that the
sale, conveyance or other disposition of all or substantially all of the assets
of the Borrower and its Subsidiaries, taken as a whole, shall be governed by
Section 6.19 and/or Section 6.16 and not by the provisions of
Section 6.11; and
(2) the
issuance of Equity Interests by any Restricted Subsidiary of the Borrower or
the
sale by the Borrower or any Restricted Subsidiary of the Borrower of Equity
Interests of any Restricted Subsidiary of the Borrower.
Notwithstanding
the preceding, the following items shall not be deemed to be Asset
Sales:
(1) any
single transaction or series of related transactions that: (a) involves
assets having a fair market value of less than $100 million; or (b) results
in net proceeds to the Borrower and its Restricted Subsidiaries of less than
$100 million;
(2) a
transfer of assets between or among the Borrower and/or its Restricted
Subsidiaries;
(3) an
issuance of Equity Interests by a Restricted Subsidiary of the Borrower to
the
Borrower or to another Wholly Owned Restricted Subsidiary of the
Borrower;
(4) a
Restricted Payment that is permitted by Section 6.7, a Restricted
Investment that is permitted by Section 6.8 or a Permitted
Investment;
(5) the
incurrence of Liens not prohibited by this Agreement and the disposition of
assets related to such Liens by the secured party pursuant to a foreclosure;
and
(6) any
disposition of cash or Cash Equivalents.
“Asset
Sale Offer”:
as
defined in Section 6.11.
“Assignee”:
as
defined in Section 10.6(b)(i).
“Assignment
and Assumption”:
an
Assignment and Assumption, substantially in the form of Exhibit E.
“Attributable
Debt”:
in
respect of a sale and leaseback transaction, at the time of determination,
the
present value of the obligation of the lessee for net rental payments during
the
remaining term of the lease included in such sale and leaseback transaction,
including any period for which such lease has been extended or may, at the
option of the lessee, be extended. Such present value shall be calculated using
a discount rate equal to the rate of interest implicit in such transaction,
determined in accordance with GAAP.
“Authorizations”:
all
filings, recordings and registrations with, and all validations or exemptions,
approvals, orders, authorizations, consents, Licenses, certificates and permits
from, the FCC, applicable public utilities and other Governmental Authorities,
including CATV Franchises, FCC Licenses and Pole Agreements.
“Bank
of America” means Bank of America, N.A. and its successors.
“Bankruptcy
Law”:
Title
11, U.S. Code or any federal or state law of any jurisdiction relating to
bankruptcy, insolvency, winding up, liquidation, reorganization or relief of
debtors.
“Beneficial
Owner”
has
the
meaning assigned to such term in Rule 13d-3 and Rule 13d-5 under the
Exchange Act, except that in calculating the beneficial ownership of any
particular “person” (as such term is used in Section 13(d)(3) of the
Exchange Act) such “person” shall be deemed to have beneficial ownership of all
securities that such “person” has the right to acquire, whether such right is
currently exercisable or is exercisable only upon the occurrence of a subsequent
condition.
“Benefitted
Lender”:
as
defined in Section 10.7(a).
“Board”:
the
Board of Governors of the Federal Reserve System of the United States (or any
successor).
“Board
of Directors”:
the
board of directors or comparable governing body of CCI or, if so specified,
the
Borrower, in either case, as constituted as of the date of any determination
required to be made, or action required to be taken, pursuant to this
Agreement.
“Borrower”:
as
defined in the preamble hereto.
“Borrowing
Date”:
each
Business Day specified by the Borrower in a Notice of Borrowing as the date
on
which the Borrower requests the relevant Lenders to make the Loans hereunder;
provided that in no event shall any Borrowing Date (other than for Incremental
Loans) occur after April 15, 2007.
“Business”:
as
defined in Section 4.17(b).
“Business
Day”:
a day
other than a Saturday, Sunday or other day on which commercial banks in New
York
City are authorized or required by law to close, provided,
that
with respect to notices and determinations in connection with, and payments
of
principal and interest on, Eurodollar Loans, such day is also a day for trading
by and between banks in Dollar deposits in the London interbank eurodollar
market.
“Cable
Related Business”:
the
business of owning cable television systems and businesses ancillary,
complementary or related thereto.
“Capital
Lease Obligation”:
at the
time any determination thereof is to be made, the amount of the liability in
respect of a capital lease that would at that time be required to be capitalized
on a balance sheet in accordance with GAAP.
“Capital
Stock”:
(1) in
the
case of a corporation, corporate stock;
(2) in
the
case of an association or business entity, any and all shares, interests,
participations, rights or other equivalents (however designated) of corporate
stock;
(3) in
the
case of a partnership or limited liability company, partnership or membership
interests (whether general or limited); and
(4) any
other
interest (other than any debt obligation) or participation that confers on
a
Person the right to receive a share of the profits and losses of, or
distributions of assets of, the issuing Person.
“Capital
Stock Sale Proceeds”:
the
aggregate net proceeds (including the fair market value of the non-cash
proceeds, as determined by an independent appraisal firm) received by the
Borrower from and after October 1, 2003, in each case:
(1) as
a
contribution to the common equity capital or from the issue or sale of Equity
Interests (other than Disqualified Stock and other than issuances or sales
to a
Subsidiary of the Borrower) of the Borrower after October 1, 2003,
or
(2) from
the
issue or sale of convertible or exchangeable Disqualified Stock or convertible
or exchangeable debt securities of the Borrower that have been converted into
or
exchanged for such Equity Interests (other than Equity Interests (or
Disqualified Stock or debt securities) sold to a Subsidiary of the
Borrower).
“Cash
Equivalents”:
(1) United
States dollars;
(2) securities
issued or directly and fully guaranteed or insured by the United States
government or any agency or instrumentality thereof (provided
that the
full faith and credit of the United States is pledged in support thereof) having
maturities of not more than twelve months from the date of
acquisition;
(3) certificates
of deposit and eurodollar time deposits with maturities of twelve months or
less
from the date of acquisition, bankers’ acceptances with maturities not exceeding
six months and overnight bank deposits, in each case, with any domestic
commercial bank having combined capital and surplus in excess of $500 million
and a Thompson Bank Watch Rating at the time of acquisition of “B” or
better;
(4) repurchase
obligations with a term of not more than seven days for underlying securities
of
the types described in clauses (2) and (3) above entered into with any
financial institution meeting the qualifications specified in clause (3)
above;
(5) commercial
paper having a rating at the time of acquisition of at least “P-1” from Moody’s
or at least “A-1” from S&P and in each case maturing within twelve months
after the date of acquisition;
(6) corporate
debt obligations maturing within twelve months after the date of acquisition
thereof, rated at the time of acquisition at least “Aaa” or “P-1” by Moody’s or
“AAA” or “A-1” by S&P;
(7) auction-rate
Preferred Stocks of any corporation maturing not later than 45 days after the
date of acquisition thereof, rated at the time of acquisition at least “Aaa” by
Moody’s or “AAA” by S&P;
(8) securities
issued by any state, commonwealth or territory of the United States, or by
any
political subdivision or taxing authority thereof, maturing not later than
six
months after the date of acquisition thereof, rated at the time of acquisition
at least “A” by Moody’s or S&P; and
(9) money
market or mutual funds at least 90% of the assets of which constitute Cash
Equivalents of the kinds described in clauses (1) through (8) of this
definition.
“CATV
Franchise”:
collectively, with respect to the Borrower and its Subsidiaries, (a) any
franchise, license, permit, wire agreement or easement granted by any political
jurisdiction or unit or
other
local, state or federal franchising authority (other than licenses, permits
and
easements not material to the operations of a CATV System) pursuant to which
such Person has the right or license to operate a CATV System and (b) any
law,
regulation, ordinance, agreement or other instrument or document setting
forth
all or any part of the terms of any franchise, license, permit, wire agreement
or easement described in clause (a) of this definition.
“CATV
System”:
any
cable distribution system owned or acquired by the Borrower or any of its
Subsidiaries which receives audio, video, digital, other broadcast signals
or
information or telecommunications by cable, optical, antennae, microwave or
satellite transmission and which amplifies and transmits such signals to
customers of the Borrower or any of its Subsidiaries.
“CCH
I”:
CCH I,
LLC, a Delaware limited liability company, and any successor Person
thereto.
“CCH I
Indenture”:
collectively (a) the indenture pursuant to which the CCH I Notes were
issued and (b) any indentures, note purchase agreements or similar documents
entered into by CCH I and/or CCH I Capital Corp. on or after the
Effective Date for the purpose of incurring Indebtedness in exchange for, or
the
proceeds of which are used to refinance, any of the Indebtedness outstanding
under the CCH I Indenture described in the foregoing clause (a), in each
case, together with all instruments and other agreements entered into by
CCH I or CCH I Capital Corp. in connection therewith, as the same may
be refinanced, replaced, amended, supplemented or otherwise modified from time
to time.
“CCH I
Notes”:
the
11.00% Senior Secured Notes due 2015 issued by CCH I and CCH I Capital
Corp.
“CCH
II”:
CCH
II, LLC, a Delaware limited liability company, and any successor Person
thereto.
“CCH
II
Indentures”:
collectively, (a) the indentures entered into by CCH II and CCH II Capital
Corp., a Delaware corporation, with respect to their 10.25% Senior Notes due
2010 and their 10.25% Senior Notes due 2013 and (b) any indentures, note
purchase agreements or similar documents entered into by CCH II and/or CCH
II
Capital Corp. for the purpose of incurring Indebtedness in exchange for, or
the
proceeds of which are used to refinance, any of the Indebtedness outstanding
under the CCH II Indentures described in the foregoing clause (a), in each
case,
together with all instruments and other agreements entered into by CCH II or
CCH
II Capital Corp. in connection therewith, as the same may be refinanced,
replaced, amended, supplemented or otherwise modified from time to
time.
“CCHC”:
CCHC,
LLC, a Delaware limited liability company, and any successor Person
thereto.
“CCI”:
Charter Communications, Inc., a Delaware corporation, together with its
successors.
“CCI
Indentures”:
collectively, (a) the indenture entered into by CCI with respect to its 5.875%
Convertible Senior Notes due 2009, and (b) any indentures, note purchase
agreements or similar documents entered into by CCI for the purpose of incurring
Indebtedness in exchange for, or the proceeds of which are used to refinance,
any of the Indebtedness outstanding under the CCI Indenture described in the
foregoing clause (a), in each case, together with all instruments and other
agreements entered into by CCI in connection therewith, as the same may be
refinanced, replaced, amended, supplemented or otherwise modified from time
to
time.
“CCO”:
Charter Communications Operating, LLC, a Delaware limited liability company,
and
any successor Person thereto.
“CCO
First Lien Administrative Agent”:
JPMorgan Chase Bank, N.A.
“CCO
First Lien Credit Agreement”:
the
Amended and Restated Credit Agreement dated as of March 18, 1999, as amended
and
restated as of April 27, 2004 and April 28, 2006 and as further amended and
restated as of March 6, 2007, among CCO, the Borrower, the financial
institutions from time to time parties thereto, the CCO First Lien
Administrative Agent, JPMorgan Chase Bank, N.A. and Bank of America, N.A.,
as
syndication agents, Citigroup Global Markets Inc., Deutsche Bank Securities
Inc., General Electric Capital Corporation and Credit Suisse Securities (USA)
LLC, as revolving facility co-documentation agents, and Citigroup Global Markets
Inc., Credit Suisse Securities (USA) LLC, General Electric Capital Corporation
and Deutsche Bank Securities Inc., as term facility co-documentation agents,
as
such agreement may be amended, restated, modified, renewed, refunded, replaced
or refinanced in whole or in part from time to time.
“CCO
Senior Note Indenture”:
collectively, (a) the indenture entered into by CCO and Charter Communications
Operating Capital Corp. with respect to its 8% Senior Second Lien Notes due
2012
and its 8 3/8% Senior Second Lien Notes due 2014 and (b) any indentures, note
purchase agreements or similar documents entered into by CCO and/or Charter
Communications Operating Capital Corp. for the purpose of incurring Indebtedness
in exchange for, or the proceeds of which are used to refinance, any of the
Indebtedness outstanding under the CCO Senior Note Indenture described in the
foregoing clause (a), in each case, together with all instruments and other
agreements entered into by CCO or Charter Communications Operating Capital
Corp.
in connection therewith, as the same may be refinanced, replaced, amended,
supplemented or otherwise modified from time to time.
“Change
of Control”:
the
occurrence of any of the following:
(1) the
sale,
transfer, conveyance or other disposition (other than by way of merger or
consolidation), in one or a series of related transactions, of all or
substantially all of the assets of the Borrower and its Subsidiaries, taken
as a
whole, or of a Parent and its Subsidiaries, taken as a whole, to any “person”
(as such term is used in Section 13(d)(3) of the Exchange Act) other than
Paul
G.
Allen and the Related Parties;
(2) the
adoption of a plan relating to the liquidation or dissolution of the Borrower
or
a Parent (except the liquidation of any Parent into any other
Parent);
(3) the
consummation of any transaction, including any merger or consolidation, the
result of which is that any “person” (as defined above) other than Paul G. Allen
and Related Parties becomes the Beneficial Owner, directly or indirectly, of
more than 35% of the Voting Stock of the Borrower or a Parent, measured by
voting power rather than the number of shares, unless Paul G. Allen or a Related
Party Beneficially Owns, directly or indirectly, a greater percentage of Voting
Stock of the Borrower or such Parent, as the case may be, measured by voting
power rather than the number of shares, than such person;
(4) after
the
Effective Date, the first day on which a majority of the members of the Board
of
Directors of CCI are not Continuing Directors;
(5) the
Borrower or a Parent consolidates with, or merges with or into, any Person,
or
any Person consolidates with, or merges with or into, the Borrower or a Parent,
in any such
event
pursuant to a transaction in which any of the outstanding Voting Stock of
the
Borrower or such Parent is converted into or exchanged for cash, securities
or
other property, other than any such transaction where the Voting Stock of
the
Borrower or such Parent outstanding immediately prior to such transaction
is
converted into or exchanged for Voting Stock (other than Disqualified Stock)
of
the surviving or transferee Person constituting a majority of the outstanding
shares of such Voting Stock of such surviving or transferee Person immediately
after giving effect to such issuance; or
(6) (i) Charter
Communications Holding Company, LLC shall cease to own beneficially, directly
or
indirectly, 100% of the Capital Stock of Charter Holdings or (ii) Charter
Holdings shall cease to own beneficially, directly or indirectly, 100% of the
Capital Stock of the Borrower.
“Change
of Control Offer”:
as
defined in Section 6.16.
“Change
of Control Payment”:
as
defined in Section 6.16.
“Change
of Control Payment Date”:
as
defined in Section 6.16.
“Charter
Holdings”:
Charter Communications Holdings, LLC, a Delaware limited liability company,
and
any successor Person thereto.
“Charter
Holdings Indentures”:
collectively (a) the indentures entered into by Charter Holdings and
Charter Communications Holdings Capital Corporation in connection with the
issuance of the 8.250% Senior Notes Due 2007 dated March 1999, 8.625% Senior
Notes Due 2009 dated March 1999, 9.920% Senior Discount Notes Due 2011 dated
March 1999, 10.00% Senior Notes Due 2009 dated January 2000, 10.250% Senior
Notes Due 2010 dated January 2000, 11.750% Senior Discount Notes Due 2010 dated
January 2000, 10.75% Senior Notes Due 2009 dated January 2001, 11.125% Senior
Notes Due 2011 dated January 2001, 13.50% Senior Discount Notes Due 2011 dated
January 2001, 9.625% Senior Notes Due 2009 dated May 2001, 10.00% Senior Notes
Due 2011 dated May 2001, 11.750% Senior Discount Notes Due 2011 dated May 2001,
9.625% Senior Notes Due 2009 dated January 2002, 10.00% Senior Notes Due 2011
dated January 2002, and 12.125% Senior Discount Notes Due 2012 dated January
2002, and (b) any indentures, note purchase agreements or similar documents
entered into by Charter Holdings and/or Charter Communications Holdings Capital
Corporation on or after the Effective Date for the purpose of incurring
Indebtedness in exchange for, or proceeds of which are used to refinance, any
of
the Indebtedness described in the foregoing clause (a), in each case,
together with all instruments and other agreements entered into by Charter
Holdings or Charter Communications Holdings Capital Corporation in connection
therewith, as the same may be refinanced, replaced, amended, supplemented or
otherwise modified from time to time.
“Charter
Refinancing Indebtedness”:
any
Indebtedness of a Charter Refinancing Subsidiary issued in exchange for, or
the
net proceeds of which are used within 90 days after the date of issuance thereof
to extend, repay, refinance, renew, replace, defease, purchase, acquire or
refund (including successive extensions, refinancings, renewals, replacements,
defeasances, purchases, acquisitions or refunds), (i) Indebtedness initially
incurred under any one or more of the CCI Indentures, the Charter Holdings
Indentures, the CIH Indenture, the CCH I Indenture, the CCH II Indentures,
the
Holdings Indentures or this Agreement or (ii) any other Indebtedness of the
Borrower or any Restricted Subsidiary of the Borrower up to an aggregate
principal amount of $1.5 billion pursuant to this clause (ii); provided
that:
(1) the
principal amount (or accreted value, if applicable) of such Charter Refinancing
Indebtedness does not exceed the principal amount (or accreted value, if
applicable) of, plus accrued interest and premium, if any, on the Indebtedness
so extended, refinanced, renewed, replaced, defeased, purchased, acquired or
refunded (plus the amount of reasonable fees, commissions and expenses incurred
in connection therewith); and
(2) such
Charter Refinancing Indebtedness has a final maturity date later than the final
maturity date of, and has a Weighted Average Life to Maturity equal to or
greater than the Weighted Average Life to Maturity of, the Indebtedness being
extended, refinanced, renewed, replaced, defeased, purchased, acquired or
refunded.
“Charter
Refinancing Subsidiary”:
any
direct or indirect, wholly owned Subsidiary (and any related corporate
co-obligor if such Subsidiary is a limited liability company or other
association not taxed as a corporation) of CCI or Charter Communications Holding
Company, LLC, which is or becomes a Parent.
“CIH”:
CCH I
Holdings, LLC, a Delaware limited liability company, and any successor Person
thereto.
“CIH
Indenture”:
collectively (a) the indenture pursuant to which the CIH Notes were issued
and (b) any indentures, note purchase agreements or similar documents
entered into by CIH and/or CCH I Holdings Capital Corp. on or after the
Effective Date for the purpose of incurring Indebtedness in exchange for, or
the
proceeds of which are used to refinance, any of the Indebtedness outstanding
under the CIH Indenture described in the foregoing clause (a), in each
case, together with all instruments and other agreements entered into by CIH
or
CCH I Holdings Capital Corp. in connection therewith, as the same may be
refinanced, replaced, amended, supplemented or otherwise modified from time
to
time.
“CIH
Notes”:
each
of the following series of notes issued by CIH and CCH I Holdings Capital Corp.:
The 11.125% Senior Accreting Notes Due 2014, the 9.920% Senior Accreting Notes
Due 2014, the 10.00% Senior Accreting Notes Due 2014, the 11.75% Senior
Accreting Notes Due 2014, the 13.50% Senior Accreting Notes Due 2014, and the
12.125% Senior Accreting Notes Due 2015.
“Code”:
the
Internal Revenue Code of 1986, as amended from time to time.
“Co-Documentation
Agents”:
as
defined in the preamble hereto.
“Co-Syndication
Agents”:
as
defined in the preamble hereto.
“Collateral”:
the
assets that from time to time secure the Loans.
“Commonly
Controlled Entity”:
an
entity, whether or not incorporated, that is under common control with the
Borrower within the meaning of Section 4001 of ERISA or is part of a group
that
includes the Borrower and that is treated as a single employer under Section
414
of the Code.
“Conduit
Lender”:
any
special purpose corporation organized and administered by any Lender for the
purpose of making Loans otherwise required to be made by such Lender and
designated by such Lender in a written instrument; provided,
that
the designation by any Lender of a Conduit Lender shall not relieve the
designating Lender of any of its obligations to fund a Loan under this Agreement
if, for any reason, its Conduit Lender fails to fund any such Loan, and the
designating Lender (and not the Conduit Lender) shall have the sole right and
responsibility to deliver all consents and waivers required or requested under
this Agreement with respect to its Conduit Lender, and provided,
further,
that no
Conduit
Lender
shall (a) be entitled to receive any greater amount pursuant to Section 2.16,
2.17, 2.18 or 10.5 than the designating Lender would have been entitled to
receive in respect of the extensions of credit made by such Conduit Lender
or
(b) be deemed to have any Revolving Commitment.
“Confidential
Information Memorandum”:
the
final Confidential Information Memorandum dated February 2007 and furnished
to
certain of the Lenders in connection with this Agreement, including materials
incorporated by reference therein.
“Consolidated
EBITDA”:
with
respect to any Person, for any period, the consolidated net income (or net
loss)
of such Person and its Restricted Subsidiaries for such period calculated in
accordance with GAAP plus, to the extent such amount was deducted in calculating
such net income:
(1) Consolidated
Interest Expense;
(2) income
taxes;
(3) depreciation
expense;
(4) amortization
expense;
(5) all
other
non-cash items, extraordinary items and nonrecurring and unusual items
(including any restructuring charges and charges related to litigation
settlements or judgments) and the cumulative effects of changes in accounting
principles reducing such net income, less all non-cash items, extraordinary
items, nonrecurring and unusual items and cumulative effects of changes in
accounting principles increasing such net income;
(6) amounts
actually paid during such period pursuant to a deferred compensation plan;
and
(7) for
purposes of Section 6.10 only, Management Fees;
all
as
determined on a consolidated basis for such Person and its Restricted
Subsidiaries in conformity with GAAP, provided
that
Consolidated EBITDA shall not include:
(x) the
net
income (or net loss) of any Person that is not a Restricted Subsidiary
(“Other
Person”),
except (i) with respect to net income, to the extent of the amount of
dividends or other distributions actually paid to such Person or any of its
Restricted Subsidiaries by such Other Person during such period; and
(ii) with respect to net losses, to the extent of the amount of investments
made by such Person or any Restricted Subsidiary of such Person in such Other
Person during such period;
(y) solely
for the purposes of calculating the amount of Restricted Payments that may
be
made pursuant to Section 6.7(c)(3) (and in such case, except to the extent
includable pursuant to clause (x) above), the net income (or net loss) of
any Other Person accrued prior to the date it becomes a Restricted Subsidiary
or
is merged into or consolidated with such Person or any Restricted Subsidiaries
or all or substantially all of the property and assets of such Other Person
are
acquired by such Person or any of its Restricted Subsidiaries; and
(z) the
net
income of any Restricted Subsidiary of the Borrower to the extent that the
declaration or payment of dividends or similar distributions by such Restricted
Subsidiary of such
net
income is not at the time of determination of such Consolidated EBITDA permitted
by the operation of the terms of such Restricted Subsidiary’s charter or any
agreement, instrument, judgment, decree, order, statute, rule or governmental
regulation applicable to such Restricted Subsidiary (other than any agreement
or
instrument evidencing Indebtedness or Preferred Stock (i) outstanding on
the Effective Date, or (ii) incurred or issued thereafter in compliance
with Section 6.10, provided
that
(a) the terms of any such agreement or instrument (other than Existing
Indebtedness and any modifications, increases or refinancings that are not
materially more restrictive taken as a whole) restricting the declaration
and
payment of dividends or similar distributions apply only in the event of
a
default with respect to a financial covenant or a covenant relating to payment,
beyond any applicable period of grace, contained in such agreement or
instrument; (b) such terms are determined by such Person to be customary in
comparable financings; and (c) such restrictions are determined by the
Borrower not to materially affect the Borrower's ability to make principal
or
interest payments on the Loans when due).
“Consolidated
Indebtedness”:
with
respect to any Person as of any date of determination, the sum, without
duplication, of:
(1) the
total
amount of outstanding Indebtedness of such Person and its Restricted
Subsidiaries, plus
(2) the
total
amount of Indebtedness of any other Person that has been Guaranteed by the
referent Person or one or more of its Restricted Subsidiaries, plus
(3) the
aggregate liquidation value of all Disqualified Stock of such Person and all
Preferred Stock of Restricted Subsidiaries of such Person, in each case,
determined on a consolidated basis in accordance with GAAP.
“Consolidated
Interest Expense”:
with
respect to any Person for any period, without duplication, the sum
of:
(1) the
consolidated interest expense of such Person and its Restricted Subsidiaries
for
such period, whether paid or accrued (including amortization or original issue
discount, non-cash interest payments, the interest component of any deferred
payment obligations, the interest component of all payments associated with
Capital Lease Obligations, commissions, discounts and other fees and charges
incurred in respect of letter of credit or bankers’ acceptance financings, and
net payments (if any) pursuant to Hedging Obligations);
(2) the
consolidated interest expense of such Person and its Restricted Subsidiaries
that was capitalized during such period; and
(3) any
interest expense on Indebtedness of another Person that is guaranteed by such
Person or one of its Restricted Subsidiaries or secured by a Lien on assets
of
such Person or one of its Restricted Subsidiaries (whether or not such Guarantee
or Lien is called upon);
in
each
case, on a consolidated basis and in accordance with GAAP, excluding, however,
any amount of such interest of any Restricted Subsidiary of the referent Person
if the net income of such Restricted Subsidiary is excluded in the calculation
of Consolidated EBITDA pursuant to clause (z) of the definition thereof
(but only in the same proportion as the net income of such Restricted Subsidiary
is excluded from the calculation of Consolidated EBITDA pursuant to
clause (z) of the definition thereof).
“Continuing
Directors”:
as of
any date of determination, any member of the Board of Directors of CCI
who:
(1) was
a
member of the Board of Directors of CCI on the Effective Date; or
(2) was
nominated for election or elected to the Board of Directors of CCI with the
approval of a majority of the Continuing Directors who were members of such
Board of Directors of CCI at the time of such nomination or election or whose
election or appointment was previously so approved.
“Contractual
Obligation”:
as to
any Person, any provision of any debt or equity security issued by such Person
or of any agreement, instrument or other undertaking to which such Person is
a
party or by which it or any of its property is bound.
“Credit
Facilities”:
with
respect to the Borrower and/or its Restricted Subsidiaries, one or more debt
facilities or commercial paper facilities (including the CCO First Lien Credit
Agreement), in each case with banks or other lenders (other than a Parent of
the
Borrower) providing for revolving credit loans, term loans, receivables
financing (including through the sale of receivables to such lenders or to
special purpose entities formed to borrow from such lenders against such
receivables) or letters of credit, in each case, as amended, restated, modified,
renewed, refunded, replaced or refinanced in whole or in part from time to
time.
“Default”:
any
event that is, or with the passage of time or the giving of notice or both
would
be, an Event of Default.
“Designated
Holding Companies”:
the
collective reference to (i) Charter Holdings and (ii) each direct and indirect
Subsidiary, whether now existing or hereafter created or acquired, of Charter
Holdings of which the Borrower is a direct or indirect Subsidiary.
“Disposition”:
with
respect to any Person, any merger, consolidation or other business combination
involving such Person (whether or not such Person is the surviving Person)
or
the sale, assignment, transfer, lease or conveyance, or other disposition of
all
or substantially all of such Person’s assets or Capital Stock.
“Disqualified
Stock”:
any
Capital Stock that, by its terms (or by the terms of any security into which
it
is convertible, or for which it is exchangeable, in each case at the option
of
the holder thereof), or upon the happening of any event, matures or is
mandatorily redeemable, pursuant to a sinking fund obligation or otherwise,
or
redeemable at the option of the holder thereof, in whole or in part, on or
prior
to the date that is 91 days after the Maturity Date. Notwithstanding the
preceding sentence, any Capital Stock that would constitute Disqualified Stock
solely because the holders thereof have the right to require the Borrower to
repurchase such Capital Stock upon the occurrence of a change of control or
an
asset sale shall not constitute Disqualified Stock if the terms of such Capital
Stock provide that the Borrower may not repurchase or redeem any such Capital
Stock pursuant to such provisions unless such repurchase or redemption complies
with Section 6.7.
“Dollars”
and
“$”:
dollars in lawful currency of the United States.
“Effective
Date”:
March
6, 2007.
“Effective
Date Indebtedness”:
as
defined in Section 6.10.
“Environmental
Laws”:
any
and all foreign, federal, state, local or municipal laws, rules, orders,
regulations, statutes, ordinances, codes, decrees, requirements of any
Governmental Authority or other Requirements of Law (including common law)
regulating, relating to or imposing liability or standards of conduct concerning
protection of human health or the environment, as now or may at any time
hereafter be in effect.
“Equity
Interests”:
Capital Stock and all warrants, options or other rights to acquire Capital
Stock
(but excluding any debt security that is convertible into, or exchangeable
for,
Capital Stock).
“ERISA”:
the
Employee Retirement Income Security Act of 1974, as amended from time to time
and the regulations promulgated thereunder.
“Eurodollar
Loans”:
Loans
for which the applicable rate of interest is based upon the Eurodollar
Rate.
“Eurodollar
Rate”: means, for any Interest Period with respect to a Eurodollar Loan, the
rate per annum equal to the British Bankers Association LIBOR Rate (“BBA
LIBOR”), as published by Reuters (or other commercially available source
providing quotations of BBA LIBOR as designated by the Administrative Agent
from
time to time) at approximately 11:00 a.m., London time, two Business Days
prior
to the commencement of such Interest Period, for Dollar deposits (for delivery
on the first day of such Interest Period) with a term equivalent to such
Interest Period. If such rate is not available at such time for any reason,
then
the “Eurodollar Rate” for such Interest Period shall be the rate per annum
determined by the Administrative Agent to be the rate at which deposits in
Dollars for delivery on the first day of such Interest Period in same day
funds
in the approximate amount of the Eurodollar Loan being made, continued or
converted by Bank of America and with a term equivalent to such Interest
Period
would be offered by Bank of America’s London Branch to major banks in the London
interbank eurodollar market at their request at approximately 11:00 a.m.
(London
time) two Business Days prior to the commencement of such Interest
Period.
“Eurodollar
Tranche”:
the
collective reference to Eurodollar Loans, the then current Interest Periods
with
respect to all of which begin on the same date and end on the same later
date(whether or not such Loans shall originally have been made on the same
day).
“Event
of Default”:
as
defined in Section 8.
“Excess
Proceeds”:
as
defined in Section 6.11.
“Exchange
Act”:
the
Securities Exchange Act of 1934, as amended.
“Existing
Indebtedness”:
Indebtedness of the Borrower and its Restricted Subsidiaries in existence on
the
Effective Date, until such amounts are repaid.
“FCC”:
the
Federal Communications Commission and any successor thereto.
“FCC
License”:
any
community antenna relay service, broadcast auxiliary license, earth station
registration, business radio, microwave or special safety radio service license
issued by the FCC pursuant to the Communications Act of 1934, as
amended.
“Federal
Funds Effective Rate”:
means,
for any day, the rate per annum equal to the weighted average of the rates
on
overnight Federal funds transactions with members of the Federal
Reserve
System arranged by Federal funds brokers on such day, as published by the
Federal Reserve Bank of New York on the Business Day next succeeding such
day;
provided
that (a)
if such day is not a Business Day, the Federal Funds Effective Rate for such
day
shall be such rate on such transactions on the next preceding Business Day
as so
published on the next succeeding Business Day, and (b) if no such rate is
so
published on such next succeeding Business Day, the Federal Funds Effective
Rate
for such day shall be the average rate (rounded upward, if necessary, to
a whole
multiple of 1/100 of 1%) charged to Bank of America on such day on such
transactions as determined by the Administrative Agent.
“Flow-Through
Entity”:
any
Person that is not treated as a separate tax paying entity for United States
federal income tax purposes.
“Funding
Office”:
the
office of the Administrative Agent specified in Section 10.2 or such other
office as may be specified from time to time by the Administrative Agent as
its
funding office by written notice to the Borrower and the Lenders.
“GAAP”:
generally accepted accounting principles set forth in the opinions and
pronouncements of the Accounting Principles Board of 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
have been approved by a significant segment of the accounting profession, which
are in effect on the Effective Date.
“Governmental
Authority”:
any
nation or government, any state or other political subdivision thereof, any
agency, authority, instrumentality, regulatory body, court, central bank or
other entity exercising executive, legislative, judicial, taxing, regulatory
or
administrative functions of or pertaining to government, any securities exchange
and any self-regulatory organization (including the National Association of
Insurance Commissioners).
“Guarantee”
or
“guarantee”:
a
guarantee other than by endorsement of negotiable instruments for collection
in
the ordinary course of business, direct or indirect, in any manner including
by
way of a pledge of assets or through letters of credit or reimbursement
agreements in respect thereof, of all or any part of any Indebtedness, measured
as the lesser of the aggregate outstanding amount of the Indebtedness so
guaranteed and the face amount of the guarantee, as the same may be amended,
supplemented or otherwise modified from time to time.
“Hedging
Obligations”:
with
respect to any Person, the obligations of such Person under:
(1) interest
rate swap agreements, interest rate cap agreements and interest rate collar
agreements;
(2) interest
rate option agreements, foreign currency exchange agreements, foreign currency
swap agreements; and
(3) other
agreements or arrangements designed to protect such Person against fluctuations
in interest and currency exchange rates.
“Holdings
Indentures”:
collectively, (a) the indentures entered into by the Borrower and CCO Holdings
Capital Corp., a Delaware corporation, with respect to their 8 3/4% Senior
Notes
due 2013 and their Senior Floating Rate Notes due 2010 and (b) any indentures,
note purchase agreements or similar documents entered into by the Borrower
and/or CCO Holdings Capital Corp. for the purpose of incurring Indebtedness
in
exchange for, or the proceeds of which are used to refinance, any of the
Indebtedness
outstanding under the Holdings Indentures described in the foregoing clause
(a),
in each case, together with all instruments and other agreements entered
into by
the Borrower or CCO Holdings Capital Corp. in connection therewith, as the
same
may be refinanced, replaced, amended, supplemented or otherwise modified
from
time to time.
“Incremental
Facility Activation Notice”:
a
notice substantially in the form of Exhibit F-2.
“Incremental
Facility Closing Date”:
any
Business Day designated as such in an Incremental Facility Activation
Notice.
“Incremental
Facility”:
the
Incremental Loans .
“Incremental
Lenders”:
(a) with respect to any Incremental Facility relating to Incremental Loans,
the Lenders signatory to the relevant Incremental Facility Activation Notice
and
(b) thereafter, each Lender that is a holder of an Incremental
Loan.
“Incremental
Loans”:
as
defined in Section 2.1(a).
“Incremental
Maturity Date”:
with
respect to the Incremental Loans to be made pursuant to any Incremental Facility
Activation Notice, the final maturity date specified in such Incremental
Facility Activation Notice, which date shall be no earlier than the final
maturity of the Loans.
“Indebtedness”:
with
respect to any specified Person, any indebtedness of such Person, whether or
not
contingent:
(1) in
respect of borrowed money;
(2) evidenced
by bonds, notes, debentures or similar instruments or letters of credit (or
reimbursement agreements in respect thereof);
(3) in
respect of banker’s acceptances;
(4) representing
Capital Lease Obligations;
(5) in
respect of the balance deferred and unpaid of the purchase price of any
property, except any such balance that constitutes an accrued expense or trade
payable; or
(6) representing
the notional amount of any Hedging Obligations,
if
and to
the extent any of the preceding items (other than letters of credit and Hedging
Obligations) would appear as a liability upon a balance sheet of the specified
Person prepared in accordance with GAAP. In addition, the term “Indebtedness”
includes all Indebtedness of others secured by a Lien on any asset of the
specified Person (whether or not such Indebtedness is assumed by the specified
Person) and, to the extent not otherwise included, the guarantee by such Person
of any indebtedness of any other Person.
The
amount of any Indebtedness outstanding as of any date shall be:
(1) the
accreted value thereof, in the case of any Indebtedness issued with original
issue discount; and
(2) the
principal amount thereof, together with any interest thereon that is more than
30 days past due, in the case of any other Indebtedness.
“Indemnified
Liabilities”: as defined in Section 10.5.
“Indemnitee”:
as
defined in Section 10.5.
"Insolvency
Proceeding":
any
proceeding in respect of bankruptcy, insolvency, winding up, receivership,
dissolution or assignment for the benefit of creditors, in each of the foregoing
events whether under a Bankruptcy Law or otherwise.
“Intellectual
Property”:
the
collective reference to all rights, priorities and privileges relating to
intellectual property, whether arising under United States, multinational or
foreign laws or otherwise, including copyrights, copyright licenses, patents,
patent licenses, trademarks, trademark licenses, technology, know-how and
processes, and all rights to sue at law or in equity for any infringement or
other impairment thereof, including the right to receive all proceeds and
damages therefrom.
“Intercreditor
Agreement”:
the
Intercreditor Agreement, dated as of March 6, 2007, between the CCO First
Lien
Administrative Agent and the Administrative Agent substantially in the form
of
Exhibit B, as the same may be, replaced, amended, supplemented or otherwise
modified from time to time.
“Interest
Payment Date”:
(a) as
to any ABR Loan, the last day of each March, June, September and December to
occur while such Loan is outstanding and the final maturity date of such Loan,
(b) as to any Eurodollar Loan having an Interest Period of three months or
less,
the last day of such Interest Period, (c) as to any Eurodollar Loan having
an
Interest Period longer than three months, each day that is three months, or
a
whole multiple thereof, after the first day of such Interest Period and the
last
day of such Interest Period and (d) as to any Loan, the date of any repayment
or
prepayment made in respect thereof.
“Interest
Period”:
as to
any Eurodollar Loan, (a) initially, the period commencing on the borrowing
or
conversion, as the case may be, date with respect to such Eurodollar Loan
and
ending one, two, three, six or, if available and consented to by (which consent
shall not be unreasonably withheld) each Lender, nine or twelve months
thereafter
(or any
other period of less than one month consented to by the Administrative
Agent),
as
selected by the Borrower in its notice of borrowing or notice of conversion,
as
the case may be, given with respect thereto; and (b) thereafter, each period
commencing on the last day of the next preceding Interest Period applicable
to
such Eurodollar Loan and ending one, two, three, six or, if available and
consented to by (which consent shall not be unreasonably withheld) each Lender,
nine or twelve months thereafter, as selected by the Borrower by irrevocable
notice to the Administrative Agent not less than three Business Days prior
to
the last day of the then current Interest Period with respect thereto;
provided
that,
all of the foregoing provisions relating to Interest Periods are subject
to the
following:
(i) if
any
Interest Period would otherwise end on a day that is not a Business Day, such
Interest Period shall be extended to the next succeeding Business Day unless
the
result of such extension would be to carry such Interest Period into another
calendar month in which event such Interest Period shall end on the immediately
preceding Business Day;
(ii) the
Borrower may not select an Interest Period that would extend beyond the date
final payment is due on the Loans or the relevant Incremental Loans, as the
case
may be;
(iii) any
Interest Period that begins on the last Business Day of a calendar month (or
on
a day for which there is no numerically corresponding day in the calendar month
at the end of such Interest Period) shall end on the last Business Day of a
calendar month; and
(iv) the
Borrower shall select Interest Periods so as not to require a payment or
prepayment of any Eurodollar Loan during an Interest Period for such
Loan.
“Investment
Grade Rating”:
a
rating equal to or higher than Baa3 (or the equivalent) by Moody’s and BBB- (or
the equivalent) by S&P.
“Investments”:
with
respect to any Person, all investments by such Person in other Persons,
including Affiliates, in the forms of direct or indirect loans (including
guarantees of Indebtedness or other obligations), advances or capital
contributions (excluding commission, travel and similar advances to officers
and
employees made in the ordinary course of business) and purchases or other
acquisitions for consideration of Indebtedness, Equity Interests or other
securities, together with all items that are or would be classified as
investments on a balance sheet prepared in accordance with GAAP.
“KPMG”:
KPMG,
LLP.
“Lenders”:
as
defined in the preamble hereto.
“Leverage
Ratio”:
as to
the Borrower, as of any date, the ratio of:
(1) the
Consolidated Indebtedness of the Borrower on such date to
(2) the
aggregate amount of Consolidated EBITDA for the Borrower for the most recently
ended fiscal quarter for which internal financial statements are available
(the
“Reference
Period”),
multiplied by four.
In
addition to the foregoing, for purposes of this definition, “Consolidated
EBITDA”
shall
be calculated on a pro forma basis after giving effect to
(1) the
borrowing of the Loans on each Borrowing Date on or prior to such
date;
(2) the
incurrence of the Indebtedness or the issuance of the Disqualified Stock by
the
Borrower or a Restricted Subsidiary or Preferred Stock of a Restricted
Subsidiary (and the application of the proceeds therefrom) giving rise to the
need to make such calculation and any incurrence or issuance (and the
application of the proceeds therefrom) or repayment of other Indebtedness,
Disqualified Stock or Preferred Stock of a Restricted Subsidiary, other than
the
incurrence or repayment of Indebtedness for ordinary working capital purposes,
at any time subsequent to the beginning of the Reference Period and on or prior
to the date of determination, as if such incurrence (and the application of
the
proceeds thereof), or the repayment, as the case may be, occurred on the first
day of the Reference Period; and
(3) any
Dispositions or Asset Acquisitions (including any Asset Acquisition giving
rise
to the need to make such calculation as a result of such Person or one of its
Restricted Subsidiaries (including any person that becomes a Restricted
Subsidiary as a result of such Asset
Acquisition)
incurring, assuming or otherwise becoming liable for or issuing Indebtedness,
Disqualified Stock or Preferred Stock) made on or subsequent to the first
day of
the Reference Period and on or prior to the date of determination, as if
such
Disposition or Asset Acquisition (including the incurrence, assumption or
liability for any such Indebtedness, Disqualified Stock or Preferred Stock
and
also including any Consolidated EBITDA associated with such Asset Acquisition,
including any cost savings adjustments in compliance with Regulation S-X
promulgated by the SEC) had occurred on the first day of the Reference
Period.
“License”:
as to
any Person, any license, permit, certificate of need, authorization,
certification, accreditation, franchise, approval, or grant of rights by any
Governmental Authority or other Person necessary or appropriate for such Person
to own, maintain, or operate its business or property, including FCC
Licenses.
“Lien”:
with
respect to any asset, any mortgage, lien, pledge, charge, security interest
or
encumbrance of any kind in respect of such asset, whether or not filed, recorded
or otherwise perfected under applicable law, including any conditional sale
or
other title retention agreement, any lease in the nature thereof, any option
or
other agreement to sell or give a security interest in and any filing of or
agreement to give any financing statement under the Uniform Commercial Code
(or
equivalent statutes) of any jurisdiction.
“Loan”:
any
loan made or held by any Lender pursuant to this Agreement.
“Loan
Documents”:
this
Agreement, the Pledge Agreement, the Notes and any other agreements, documents
or instruments to which the Borrower is party and which is designated as a
Loan
Document.
“Management
Fees”:
the
fees (including expense reimbursements) payable to any Parent pursuant to the
management and mutual services agreements between any Parent and the Borrower
or
between any Parent and other Restricted Subsidiaries of the Borrower or pursuant
to the limited liability company agreements of certain Restricted Subsidiaries
as such management, mutual services or limited liability company agreements
exist on the Effective Date (or, if later, on the date any new Restricted
Subsidiary is acquired or created), including any amendment or replacement
thereof, provided,
that
any such new agreements or amendments or replacements of existing agreements,
taken as a whole, are not more disadvantageous to the Lenders in any material
respect than such agreements existing on the Effective Date and further provided,
that
such new, amended or replacement management agreements do not provide for
percentage fees, taken together with fees under existing agreements, any higher
than 3.5% of CCI’s consolidated total revenues for the applicable payment
period.
“Material
Adverse Effect”:
a
material adverse effect on (a) the business, property, operations or condition
(financial or otherwise) of the Borrower and its Subsidiaries taken as a whole
or (b) the validity or enforceability of any material provision of this
Agreement or any of the other Loan Documents or the rights or remedies of the
Administrative Agent or the Lenders hereunder or thereunder.
“Materials
of Environmental Concern”:
any
gasoline or petroleum (including crude oil or any fraction thereof) or petroleum
products or any hazardous or toxic substances, materials or wastes, defined
or
regulated as such in or under any Environmental Law, including asbestos,
polychlorinated biphenyls and urea-formaldehyde insulation.
“Maturity
Date”:
September 6, 2014.
“Moody’s”:
Moody’s Investors Service, Inc. or any successor to the rating agency business
thereof.
“Multiemployer
Plan”:
a Plan
that is a multiemployer plan as defined in Section 4001(a)(3) of
ERISA.
“Net
Proceeds”:
the
aggregate cash proceeds received by the Borrower or any of its Restricted
Subsidiaries in respect of any Asset Sale (including any cash received upon
the
sale or other disposition of any non-cash consideration received in any Asset
Sale), net of the direct costs relating to such Asset Sale, including legal,
accounting and investment banking fees, and sales commissions, and any
relocation expenses incurred as a result thereof or taxes paid or payable as
a
result thereof (including amounts distributable in respect of owners’, partners’
or members’ tax liabilities resulting from such sale), in each case after taking
into account any available tax credits or deductions and any tax sharing
arrangements and amounts required to be applied to the repayment of
Indebtedness.
“New
Lender”:
as
defined in Section 2.1(c).
“New
Lender Supplement”:
as
defined in Section 2.1(c).
“New
York UCC”:
the
Uniform Commercial Code as from time to time in effect in the State of New
York.
“Non-Excluded
Taxes”:
as
defined in Section 2.17(a).
“Non-Recourse
Debt”
means
Indebtedness:
(1) as
to
which neither the Borrower nor any of its Restricted Subsidiaries
(a) provides credit support of any kind (including any undertaking,
agreement or instrument that would constitute Indebtedness), (b) is
directly or indirectly liable as a guarantor or otherwise, or
(c) constitutes the lender;
(2) no
default with respect to which (including any rights that the holders thereof
may
have to take enforcement action against an Unrestricted Subsidiary) would permit
upon notice, lapse of time or both any holder of any other Indebtedness (other
than the Loans) of the Borrower or any of its Restricted Subsidiaries to declare
a default on such other Indebtedness or cause the payment thereof to be
accelerated or payable prior to its stated maturity; and
(3) as
to
which the lenders have been notified in writing that they will not have any
recourse to the Capital Stock or assets of the Borrower or any of its Restricted
Subsidiaries.
“Non-U.S.
Lender”:
as
defined in Section 2.17(d).
“Notes”:
the
collective reference to any promissory note evidencing Loans.
“Notice
of Borrowing”:
an
irrevocable notice of borrowing, substantially in the form of Exhibit I, to
be
delivered in connection with the making of the Loans hereunder.
“Obligations”:
any
principal, interest, penalties, fees, indemnifications, reimbursements, damages,
Guarantees and other liabilities payable under the documentation governing
any
Indebtedness, in each case, whether now or hereafter existing, renewed or
restructured, whether or not from time to time decreased or extinguished and
later increased, created or incurred, whether or not arising on or after the
commencement
of a case under Bankruptcy Law (including post- petition interest) and whether
or not allowed or allowable as a claim in any such case.
“Offer
Amount”:
as
defined in Section 6.11.
“Offer
Period::
as
defined in Section 6.11.
“Officer”:
with
respect to any Person, the Chairman of the Board, the Chief Executive Officer,
the President, the Chief Operating Officer, the Chief Financial Officer, the
Treasurer, any Assistant Treasurer, the Controller, the Secretary or any
Vice-President of such Person.
“Officers’
Certificate”:
a
certificate signed on behalf of the Borrower by two Officers of the Borrower,
one of whom must be the principal executive officer, the chief financial officer
or the treasurer of the Borrower in form and substance reasonably satisfactory
to the Administrative Agent.
“Other
Taxes”:
any
and all present or future stamp or documentary taxes or any other excise or
property taxes, charges or similar levies arising from any payment made
hereunder or from the execution, delivery or enforcement of, or otherwise with
respect to, this Agreement or any other Loan Document.
“Parent”:
CCH
II, CCH I, CIH, Charter Holdings, CCHC, Charter Communications Holding Company,
LLC, CCI and/or any direct or indirect Subsidiary of the foregoing 100% of
the
Capital Stock of which is owned directly or indirectly by one or more of the
foregoing Persons, as applicable, and that directly or indirectly beneficially
owns 100% of the Capital Stock of the Borrower, and any successor Person to
any
of the foregoing.
“Participant”:
as
defined in Section 10.6(c)(i).
“PBGC”:
the
Pension Benefit Guaranty Corporation established pursuant to Subtitle A of
Title
IV of ERISA (or any successor).
“Permitted
Debt”:
as
defined in Section 6.10.
“Permitted
Investments”:
(1) any
Investment by the Borrower in a Restricted Subsidiary thereof, or any Investment
by a Restricted Subsidiary of the Borrower in the Borrower or in another
Restricted Subsidiary of the Borrower;
(2) any
Investment in Cash Equivalents;
(3) any
Investment by the Borrower or any of its Restricted Subsidiaries in a Person,
if
as a result of such Investment:
(a) such
Person becomes a Restricted Subsidiary of the Borrower; or
(b) such
Person is merged, consolidated or amalgamated with or into, or transfers or
conveys substantially all of its assets to, or is liquidated into, the Borrower
or a Restricted Subsidiary of the Borrower;
(4) any
Investment made as a result of the receipt of non-cash consideration from an
Asset Sale that was made pursuant to and in compliance with
Section 6.11;
(5) any
Investment made out of the net cash proceeds of the issue and sale (other than
to a Subsidiary of the Borrower) of Equity Interests (other than Disqualified
Stock) of the Borrower or cash contributions to the common equity of the
Borrower, in each case after the Effective Date, to the extent that such net
cash proceeds have not been applied to make a Restricted Payment or to effect
other transactions pursuant to Section 6.7 hereof (with the amount of usage
of the basket in this clause (5) being determined net of the aggregate
amount of principal, interest, dividends, distributions, repayments, proceeds
or
other value otherwise returned or recovered in respect of any such Investment,
but not to exceed the initial amount of such Investment);
(6) other
Investments in any Person (other than any Parent) having an aggregate fair
market value, when taken together with all other Investments in any Person
made
by the Borrower and its Restricted Subsidiaries (without duplication) pursuant
to this clause (6) after October 1, 2003, not to exceed $750 million
(initially measured on the date each such Investment was made and without giving
effect to subsequent changes in value, but reducing the amount outstanding
by
the aggregate amount of principal, interest, dividends , distributions,
repayments, proceeds or other value otherwise returned or recovered in respect
of any such Investment, but not to exceed the initial amount of such Investment)
at any one time outstanding;
(7) Investments
in customers and suppliers in the ordinary course of business which either
(A) generate accounts receivable or (B) are accepted in settlement of
bona fide disputes;
(8) Investments
consisting of payments by the Borrower or any of its Subsidiaries of amounts
that are neither dividends nor distributions but are payments of the kind
described in clause (4) of the second paragraph of Section 6.7 to the extent
such payments constitute Investments; and
(9) regardless
of whether a Default then exists, Investments in any Unrestricted Subsidiary
made by the Borrower and/or any of its Restricted Subsidiaries with the proceeds
of (x) distributions from any Unrestricted Subsidiary or (y) capital
contributions received from any Parent (other than CCI).
“Permitted
Liens”:
(1) Liens
on
the assets of the Borrower and its Restricted Subsidiaries securing
(i) Indebtedness and other Obligations under any Credit Facilities and
Related Obligations and (ii) Guarantees by the Borrower of Indebtedness of
Restricted Subsidiaries of the Borrower;
(2) Liens
in
favor of the Borrower;
(3) Liens
on
property of a Person existing at the time such Person is merged with or into
or
consolidated with the Borrower; provided
that
such Liens were in existence prior to the contemplation of such merger or
consolidation and do not extend to any assets other than those of the Person
merged into or consolidated with the Borrower and related assets, such as the
proceeds thereof;
(4) Liens
on
property existing at the time of acquisition thereof by the Borrower;
provided
that
such Liens were in existence prior to the contemplation of such
acquisition;
(5) Liens
to
secure the performance of statutory obligations, surety or appeal bonds,
performance bonds or other obligations of a like nature incurred in the ordinary
course of business;
(6) Liens
existing on the Effective Date and replacement Liens therefor that do not
encumber additional property;
(7) Liens
for
taxes, assessments or governmental charges or claims that are not yet delinquent
or that are being contested in good faith by appropriate proceedings promptly
instituted and diligently concluded; provided
that any
reserve or other appropriate provision as shall be required in conformity with
GAAP shall have been made therefor;
(8) statutory
and common law Liens of landlords and carriers, warehousemen, mechanics,
suppliers, materialmen, repairmen or other similar Liens arising in the ordinary
course of business and with respect to amounts not yet delinquent or being
contested in good faith by appropriate legal proceedings promptly instituted
and
diligently conducted and for which a reserve or other appropriate provision,
if
any, as shall be required in conformity with GAAP shall have been
made;
(9) Liens
incurred or deposits made in the ordinary course of business in connection
with
workers’ compensation, unemployment insurance and other types of social
security;
(10) Liens
incurred or deposits made to secure the performance of tenders, bids, leases,
statutory or regulatory obligation, bankers’ acceptance, surety and appeal
bonds, government contracts, performance and return-of-money bonds and other
obligations of a similar nature incurred in the ordinary course of business
(exclusive of obligations for the payment of borrowed money);
(11) easements,
rights-of-way, municipal and zoning ordinances and similar charges,
encumbrances, title defects or other irregularities that do not materially
interfere with the ordinary course of business of the Borrower or any of its
Restricted Subsidiaries;
(12) Liens
of
franchisors or other regulatory bodies arising in the ordinary course of
business;
(13) Liens
arising from filing Uniform Commercial Code financing statements regarding
leases or other Uniform Commercial Code financing statements for precautionary
purposes relating to arrangements not constituting Indebtedness;
(14) Liens
arising from the rendering of a final judgment or order against the Borrower
or
any of its Restricted Subsidiaries that does not give rise to an Event of
Default;
(15) Liens
securing reimbursement obligations with respect to letters of credit that
encumber documents and other property relating to such letters of credit and
the
products and proceeds thereof;
(16) Liens
encumbering customary initial deposits and margin deposits, and other Liens
that
are within the general parameters customary in the industry and incurred in
the
ordinary
course of business, in each case, securing Indebtedness under Related
Obligations and forward contracts, options, future contracts, future options
or
similar agreements or arrangements designed solely to protect the Borrower
or
any of its Restricted Subsidiaries from fluctuations in interest rates,
currencies or the price of commodities;
(17) Liens
consisting of any interest or title of licensor in the property subject to
a
license;
(18) Liens
on
the Capital Stock of Unrestricted Subsidiaries;
(19) Liens
arising from sales or other transfers of accounts receivable which are past
due
or otherwise doubtful of collection in the ordinary course of
business;
(20) Liens
incurred in the ordinary course of business of the Borrower and its Restricted
Subsidiaries with respect to obligations which in the aggregate do not exceed
$50 million at any one time outstanding;
(21) Liens
on
deposits made with trustees or other agents or representatives arising under
customary defeasance, discharge or similar provisions of indentures or other
agreements governing debt instruments entered into after the Effective
Date;
(22) Liens
in
favor of the Administrative Agent for its benefit and the benefit of the Lenders
as their respective interests appear;
(23) purchase
money mortgages or other purchase money Liens (including, without limitation,
any Capital Lease Obligations) incurred by the Borrower or any Restricted
Subsidiary upon any fixed or capital assets, assets useful in developing a
telephony business and/or assets useful for general operating financing needs
acquired after the Effective Date or purchase money mortgages (including,
without limitation, Capital Lease Obligations) on any such assets, whether
or
not assumed, existing at the time of acquisition of such assets, whether or
not
assumed, so long as:
(a)
such
mortgage or lien does not extend to or cover any of the assets of the Borrower
or such Restricted Subsidiary, except the asset so developed, constructed or
acquired, and directly related assets such as enhancements and modifications
thereto, substitutions, replacements, proceeds (including insurance proceeds),
products, rents and profits thereof; and
(b)
such
mortgage or lien secures the obligation to pay all or a portion of the purchase
price of such asset, interest thereon and other charges, costs and expenses
(including, without limitation, the cost of design, development, construction,
acquisition, transportation, installation, improvement and migration) and is
incurred in connection therewith (or the obligation under such Capital Lease
Obligation) only;
(24) Liens
securing Permitted Refinancing Indebtedness, to the extent that the Indebtedness
being refinanced was secured or was permitted to be secured by such Liens;
and
(25) Liens
securing Indebtedness arising from the honoring by a bank or other financial
institution of a check, draft or similar instrument in the ordinary course
of
business against insufficient funds.
“Permitted
Refinancing Indebtedness”:
any
Indebtedness of the Borrower or any of its Restricted Subsidiaries issued in
exchange for, or the net proceeds of which are used, within 60 days after the
date of issuance thereof, to extend, refinance, renew, replace, defease or
refund, other Indebtedness of the Borrower or any of its Restricted Subsidiaries
(other than intercompany Indebtedness); provided
that
unless permitted otherwise by this Agreement, no Indebtedness of any Restricted
Subsidiary may be issued in exchange for, nor may the net proceeds of
Indebtedness be used to extend, refinance, renew, replace, defease or refund,
Indebtedness of the Borrower; provided further
that:
(1) the
principal amount (or accreted value, if applicable) of such Permitted
Refinancing Indebtedness does not exceed the principal amount of (or accreted
value, if applicable), plus accrued interest and premium, if any, on the
Indebtedness so extended, refinanced, renewed, replaced, defeased or refunded
(plus the amount of reasonable expenses incurred in connection therewith),
except to the extent that any such excess principal amount (or accreted value,
as applicable) would be then permitted to be incurred by other provisions of
Section 6.10;
(2) such
Permitted Refinancing Indebtedness has a final maturity date later than the
final maturity date of, and has a Weighted Average Life to Maturity equal to
or
greater than the Weighted Average Life to Maturity of, the Indebtedness being
extended, refinanced, renewed, replaced, defeased or refunded; and
(3) if
the
Indebtedness being extended, refinanced, renewed, replaced, defeased or refunded
is subordinated in right of payment to the Loans, such Permitted Refinancing
Indebtedness has a final maturity date later than the Maturity Date and is
subordinated in right of payment to the Loans on terms at least as favorable
to
the Lenders as those contained in the documentation governing the Indebtedness
being extended, refinanced, renewed, replaced, defeased or
refunded.
“Person”:
any
individual, corporation, partnership, joint venture, association, limited
liability company, joint stock company, trust, unincorporated organization,
government or agency or political subdivision thereof or any other
entity.
“Plan”:
at a
particular time, any employee benefit plan that is covered by Title IV of ERISA
and in respect of which the Borrower or a Commonly Controlled Entity is (or,
if
such plan were terminated at such time, would under Section 4069 of ERISA be
deemed to be) an “employer” as defined in Section 3(5) of ERISA.
“Pledge
Agreement”:
the
Pledge Agreement, substantially in the form of Exhibit A, executed and delivered
by the Borrower.
“Pole
Agreement”:
any
pole attachment agreement or underground conduit use agreement entered into
in
connection with the operation of any CATV System, as the same may be, replaced,
amended, supplemented or otherwise modified from time to time.
“Preferred
Stock”:
as
applied to the Capital Stock of any Person, means Capital Stock of any class
or
classes (however designated) which, by its terms, is preferred as to the payment
of dividends, or as to the distribution of assets upon any voluntary or
involuntary liquidation or dissolution of such Person, over shares of Capital
Stock of any other class of such Person.
“Preferred
Stock Financing”:
as
defined in Section 6.10.
“Prime
Rate”:
the
rate of interest in effect for such day as publicly announced from time to
time
by Bank of America as its “prime rate.” The “prime rate” is a rate set by Bank
of America based upon various factors including Bank of America’s costs and
desired return, general economic conditions and other factors, and is used
as a
reference point for pricing some loans, which may be priced at, above, or below
such announced rate.
“Productive
Assets”:
assets
(including assets of a Person owned directly or indirectly through ownership
of
Capital Stock) of a kind used or useful in the Cable Related
Business.
“Properties”:
as
defined in Section 4.17(a).
“Rating
Agencies”:
Moody’s and S&P.
“Register”:
as
defined in Section 10.6(b)(iv).
“Regulation
U”:
Regulation U of the Board as in effect from time to time.
“Related
Cash Management Obligations”:
obligations of the Borrower or any Restricted Subsidiary arising from treasury,
depository and cash management services provided by one or more of the agents
or
the lenders under the CCO First Lien Credit Agreement or their Affiliates or
designees or other parties permitted thereunder.
“Related
Hedging Obligations”:
Hedging Obligations of the Borrower or any Restricted Subsidiary entered into
with one or more of the agents or the lenders under the CCO First Lien Credit
Agreement or their Affiliates or designees or other parties permitted under
this
Agreement and thereunder.
“Related
Obligations”:
collectively, the Related Cash Management Obligations and the Related Hedging
Obligations.
“Related
Party”:
(1) the
spouse or an immediate family member, estate or heir of Paul G. Allen;
or
(2) any
trust, corporation, partnership or other entity, the beneficiaries,
stockholders, partners, owners or Persons beneficially holding an 80% or more
controlling interest of which consist of Paul G. Allen and/or such other Persons
referred to in the immediately preceding clause (1).
“Released
Collateral”:
as
defined in Section 6.17.
“Reorganization”:
with
respect to any Multiemployer Plan, the condition that such plan is in
reorganization within the meaning of Section 4241 of ERISA.
“Reportable
Event”:
any of
the events set forth in Section 4043(c) of ERISA, other than those events as
to
which the thirty day notice period is waived under subsections .27, .28, .29,
.30, .31, .32, .34 or .35 of PBGC Reg. § 4043.
“Required
Lenders”:
at any
time, the holders of more than 50% of the Aggregate Exposure of all Lenders
at
such time.
“Requirement
of Law”:
as to
any Person, the Certificate of Incorporation and By-Laws or other organizational
or governing documents of such Person, and any law, treaty, rule or regulation
or determination of an arbitrator or a court or other Governmental Authority,
in
each case applicable to or binding upon such Person or any of its property
or to
which such Person or any of its property is subject.
“Restricted
Investment”:
an
Investment other than a Permitted Investment.
“Restricted
Payment”:
as
defined in Section 6.7.
“Restricted
Subsidiary”:
with
respect to any Person, any Subsidiary of such Person that is not an Unrestricted
Subsidiary.
“Reversion
Date”:
as
defined in Section 6.19.
“Rule
144A”:
Rule 144A promulgated under the Securities Act.
“S&P”:
Standard & Poor’s Ratings Service, a division of the McGraw-Hill Companies,
Inc. or any successor to the rating agency business thereof.
“SEC”:
the
Securities and Exchange Commission, any successor thereto and any analogous
Governmental Authority.
“Securities
Act”:
the
Securities Act of 1933, as amended.
“Securitization”:
a
public or private offering by a Lender or any of its Affiliates or their
respective successors and assigns, of securities which represent an interest
in,
or which are collateralized, in whole or in part, by the Loans.
“Shell
Subsidiary”:
any
Subsidiary of the Borrower that is a “shell” company having (a) assets (either
directly or through any Subsidiary or other Equity Interests) with an aggregate
value not exceeding $100,000 and (b) no operations.
“Significant
Subsidiary”:
with
respect to any Person, any Restricted Subsidiary of such Person which would
be
considered a “Significant Subsidiary” as defined in Rule 1-02(w) of
Regulation S-X.
“Single
Employer Plan”:
any
Plan that is covered by Title IV of ERISA, but that is not a Multiemployer
Plan.
“Solvent”:
when
used with respect to any Person, means that, as of any date of determination,
(a) the amount of the “present fair saleable value” of the assets of such Person
will, as of such date, exceed the amount of all “liabilities of such Person,
contingent or otherwise”, as of such date, as such quoted terms are determined
in accordance with applicable federal and state laws governing determinations
of
the insolvency of debtors, (b) the present fair saleable value of the assets
of
such Person will, as of such date, be greater than the amount that will be
required to pay the liability of such Person on its debts as such debts become
absolute and matured, (c) such Person will not have, as of such date, an
unreasonably small amount of capital with which to conduct its business, and
(d)
such Person will be able to pay its debts as they mature. For purposes of this
definition, (i) “debt” means liability on a “claim”, and (ii) “claim” means any
(x) right to payment, whether or not such a right is reduced to judgment,
liquidated, unliquidated, fixed, contingent, matured, unmatured, disputed,
undisputed, legal, equitable, secured or unsecured or (y) right to an equitable
remedy for breach of performance if such breach gives
rise
to a
right to payment, whether or not such right to an equitable remedy is reduced
to
judgment, fixed or contingent, matured or unmatured, disputed or undisputed,
or
secured or unsecured.
“Specified
Intracreditor Group”:
any
Lender together with, unless otherwise agreed by the Borrower and the
Administrative Agent, each Approved Fund to which such Lender has assigned
a
portion of its Loans smaller than the minimum assignment amount specified in
Section 10.6(b)(ii)(A) for Assignees other than Lenders, affiliates of Lenders
and Approved Funds.
“Stated
Maturity”:
with
respect to any installment of interest or principal on any series of
Indebtedness, the date on which such payment of interest or principal was
scheduled to be paid in the documentation governing such Indebtedness on the
Effective Date, or, if none, the original documentation governing such
Indebtedness, and shall not include any contingent obligations to repay, redeem
or repurchase any such interest or principal prior to the date originally
scheduled for the payment thereof.
“Subordinated
Debt Financing”:
as
defined in Section 6.10.
“Subordinated
Notes”:
as
defined in Section 6.10.
“Subsidiary”:
with
respect to any Person:
(1) any
corporation, association or other business entity of which at least 50% of
the
total voting power of shares of Capital Stock entitled (without regard to the
occurrence of any contingency) to vote in the election of directors, managers
or
trustees thereof is at the time owned or controlled, directly or indirectly,
by
such Person or one or more of the other Subsidiaries of that Person (or a
combination thereof) and, in the case of any such entity of which 50% of the
total voting power of shares of Capital Stock is so owned or controlled by
such
Person or one or more of the other Subsidiaries of such Person, such Person
and
its Subsidiaries also have the right to control the management of such entity
pursuant to contract or otherwise; and
(2) any
partnership (a) the sole general partner or the managing general partner of
which is such Person or a Subsidiary of such Person, or (b) the only
general partners of which are such Person or of one or more Subsidiaries of
such
Person (or any combination thereof).
“Suspended
Covenants”:
as
defined in Section 6.19.
“Term
Commitment”:
as to
any Lender, the obligation of such Lender to make Loans in an aggregate
principal amount not to exceed, as applicable (a) the amount set forth opposite
such Lender's name on Schedule 1.1 or (b) the amount set forth in any Assignment
and Assumption to which such Lender is a party as an Assignee, in each case
as
the same may be changed from time to time pursuant to the terms hereof. The
Term
Commitment of each Lender shall automatically be permanently reduced by the
amount of any Loan made by it. Any remaining Term Commitments outstanding on
April 15, 2007 shall automatically terminate on such date.
“Transferee”:
any
Assignee or Participant.
“Type”:
as to
any Loan, its nature as an ABR Loan or a Eurodollar Loan.
“United
States”:
the
United States of America.
“Unrestricted
Subsidiary”:
any
Subsidiary of the Borrower that is designated by the Board of Directors of
the
Borrower or CCI as an Unrestricted Subsidiary pursuant to a board resolution,
but only to the extent that such Subsidiary:
(1) has
no
Indebtedness other than Non-Recourse Debt;
(2) is
not
party to any agreement, contract, arrangement or understanding with the Borrower
or any Restricted Subsidiary thereof unless the terms of any such agreement,
contract, arrangement or understanding are no less favorable to the Borrower
or
such Restricted Subsidiary than those that might be obtained at the time from
Persons who are not Affiliates of the Borrower unless such terms constitute
Restricted Investments permitted under Section 6.8, Permitted Investments,
Asset Sales permitted under Section 6.11 or sale and leaseback transactions
permitted under Section 6.12;
(3) is
a
Person with respect to which neither the Borrower nor any of its Restricted
Subsidiaries has any direct or indirect obligation: (a) to subscribe for
additional Equity Interests or (b) to maintain or preserve such Person’s
financial condition or to cause such Person to achieve any specified levels
of
operating results;
(4) has
not
guaranteed or otherwise directly or indirectly provided credit support for
any
Indebtedness of the Borrower or any of its Restricted Subsidiaries;
and
(5) does
not
own any Capital Stock of any Restricted Subsidiary of the Borrower.
Any
designation of a Subsidiary of the Borrower as an Unrestricted Subsidiary shall
be evidenced to the Administrative Agent by delivering to the Administrative
Agent a certified copy of the board resolution giving effect to such designation
and an Officers’ Certificate certifying that such designation complied with the
preceding conditions and was permitted by Section 6.8. If, at any time, any
Unrestricted Subsidiary would fail to meet the preceding requirements as an
Unrestricted Subsidiary, it shall thereafter cease to be an Unrestricted
Subsidiary for purposes of this Agreement and any Indebtedness of such
Subsidiary shall be deemed to be incurred by a Restricted Subsidiary of the
Borrower as of such date and, if such Indebtedness is not permitted to be
incurred as of such date under Section 6.10,
the
Borrower shall be in default of Section 6.10. The Board of Directors of CCI
or the Borrower may at any time designate any Unrestricted Subsidiary to be
a
Restricted Subsidiary; provided
that
such designation shall be deemed to be an incurrence of Indebtedness by a
Restricted Subsidiary of any outstanding Indebtedness of such Unrestricted
Subsidiary and such designation shall only be permitted if:
(1) such
Indebtedness is permitted under Section 6.10 calculated on a pro forma
basis as if such designation had occurred at the beginning of the four-quarter
reference period; and
(2) no
Default or Event of Default would be in existence immediately following such
designation.
“Voting
Stock”:
with
respect to any Person as of any date, the Capital Stock of such Person that
is
at the time entitled to vote in the election of the board of directors or
comparable governing body of such Person.
“Weighted
Average Life to Maturity”:
when
applied to any Indebtedness at any date, the number of years obtained by
dividing:
(1) the
sum
of the products obtained by multiplying (a) the amount of each then
remaining installment, sinking fund, serial maturity or other required payments
of principal, including payment at final maturity, in respect thereof, by
(b) the number of years (calculated to the nearest one-twelfth) that will
elapse between such date and the making of such payment; by
(2) the
then
outstanding principal amount of such Indebtedness.
“Wholly
Owned Restricted Subsidiary”:
with
respect to any Person, a Restricted Subsidiary of such Person where all of
the
outstanding common equity interests or other ownership interests of such
Restricted Subsidiary (other than directors’ qualifying shares) shall at the
time be owned by such Person and/or by one or more Wholly Owned Restricted
Subsidiaries of such Person.
1.2. Other
Definitional Provisions.
(a)
Unless otherwise specified therein, all terms defined in this Agreement shall
have the defined meanings when used in the other Loan Documents or any
certificate or other document made or delivered pursuant hereto or
thereto.
(b) As
used
herein and in the other Loan Documents, and any certificate or other document
made or delivered pursuant hereto or thereto, (i) a term has the meaning
assigned to it; (ii) an accounting term not otherwise defined has the meaning
assigned to it, and all accounting determinations shall be made, in accordance
with GAAP; (iii) “or” is not exclusive and “including” means “including
without limitation”; (iv) words in the singular include the plural, and in the
plural include the singular; (v) all exhibits are incorporated by reference
herein and expressly made a part of this Agreement; (vi) references to sections
of or rules under the Securities Act shall be deemed to include substitute,
replacement of successor sections or rules adopted by the SEC from time to
time;
(vii) references to any statute, law, rule or regulation shall be deemed to
refer to the same as from time to time amended and in effect and to any
successor statute, law, rule or regulation; and (viii) any transaction or event
shall be considered “permitted by” or made “in accordance with” or “in
compliance with” this Agreement or any particular provision thereof if such
transaction or event is not expressly prohibited by this Agreement or such
provision, as the case may be.
SECTION
2. AMOUNT
AND TERMS OF COMMITMENTS
2.1. Commitments.
(a)
Subject to the terms and conditions hereof, (i) each Lender severally agrees
to
make Loans on up to two Borrowing Dates at any time during the period from
the
Effective Date to April 15, 2007 in an aggregate principal amount not to exceed
its Term Commitment and (ii) each Incremental Lender severally agrees to make
one or more term loans (each, an “Incremental
Loan”)
to the
extent provided in Section 2.1(b). The Loans may from time to time be Eurodollar
Loans or ABR Loans, as determined by the Borrower and notified to the
Administrative Agent in accordance with Sections 2.2 and 2.10.
(b) The
Borrower and any one or more Lenders (including New Lenders) may from time
to
time agree that such Lenders shall make Incremental Loans by executing and
delivering to the Administrative Agent an Incremental Facility Activation Notice
specifying (i) the amount of such Incremental Loans, (ii) the
applicable Incremental Facility Closing Date, (iii) the applicable Incremental
Maturity Date, (iv) the Applicable Margin for such Incremental Loans, (v)
the proposed original issue discount applicable to such Incremental Loans,
if
any, (vi) the applicable optional redemption and premium provisions
applicable to such Incremental Loans and (vii) any other provisions
applicable to the Incremental Loans reasonably acceptable to the Administrative
Agent; provided that (i) no portion of the principal amount of such Incremental
Loans shall have a scheduled maturity prior to the Maturity Date, (ii) mandatory
prepayment provisions (other than prepayment premiums) of the Incremental Loans
and the initial Loans shall be identical and (iii) all other terms and
conditions of the Incremental Loans (other
than
amounts, maturity, interest rates, original issue discount, fees, optional
redemption provisions and other economic terms) shall be reasonably satisfactory
to the Administrative Agent. Notwithstanding the foregoing, without the consent
of the Required Lenders, no Incremental Loans may be borrowed if a Default
or
Event of Default is in existence after giving pro forma
effect
thereto. No Lender shall have any obligation to participate in any increase
described in this paragraph unless it agrees to do so in its sole
discretion.
(c) Any
additional bank, financial institution or other entity which, with the consent
of the Borrower and the Administrative Agent (which consent shall not be
unreasonably withheld), elects to become a “Lender” under this Agreement in
connection with any transaction described in Section 2.1(b) shall execute a
New
Lender Supplement (each, a “New
Lender Supplement”),
substantially in the form of Exhibit F-1, whereupon such bank, financial
institution or other entity (a “New
Lender”)
shall
become a Lender for all purposes and to the same extent as if originally a
party
hereto and shall be bound by and entitled to the benefits of this
Agreement.
2.2. Procedure
for Borrowing.
In
order to effect the borrowing hereunder, the Borrower shall give the
Administrative Agent the Notice of Borrowing (which notice must be received
by
the Administrative Agent prior to 1:00 P.M., New York City time, (a)
three
Business Days prior to the requested Borrowing Date, in the case of Eurodollar
Loans, or (b) one Business Day prior to the requested Borrowing Date, in the
case of ABR Loans), specifying (i) the amount and Type of Loans to be borrowed,
(ii) the requested Borrowing Date and (iii) in
the
case of Eurodollar Loans, the respective amounts of each such Type of Loan
and
the respective
length
of the initial Interest Period therefor. Upon receipt of the Notice of Borrowing
from the Borrower, the Administrative Agent shall promptly notify each Lender
thereof. Each Lender will make the amount of its pro rata
share of
each borrowing available to the Administrative Agent for the account of the
Borrower at the Funding Office prior to 12:00 Noon, New York City time, on
the
Borrowing Date requested by the Borrower in funds immediately available to
the
Administrative Agent. Such borrowing will then be made available not later
than
1:00 P.M., New York City time, to the Borrower by the Administrative Agent
crediting the account of the Borrower on the books of such office with the
aggregate of the amounts made available to the Administrative Agent by the
relevant Lenders and in like funds as received by the Administrative
Agent.
2.3. Repayment
of Loans (a)
The
Borrower shall repay all outstanding Loans , other than Incremental Loans,
on
the Maturity Date.
(b) The
Borrower shall repay all outstanding Incremental Loans on the Incremental
Maturity Date, as specified in the Incremental Facility Activation Notice
pursuant to which such Incremental Loans were made.
2.4. [RESERVED].
2.5. [RESERVED].
2.6. Fees.The
Borrower agrees to pay to the Administrative Agent the fees in the amounts
and
on the dates previously agreed pursuant to a fee letter agreement, dated
February 2007 between the Borrower and the Administrative Agent.
2.7. [RESERVED].
2.8. Optional
Prepayments.
The
Borrower may at any time and from time to time prepay the Loans, in whole or
in
part, without premium or penalty (except as specified below), upon notice
delivered to the Administrative Agent no later than 1:00 P.M., New York City
time, at least three
Business
Days prior thereto in the case of Eurodollar Loans and not later than 1:00
P.M.,
New York City time, at least one Business Day prior thereto in the case of
ABR
Loans, which notice shall specify the date and amount of prepayment and whether
the prepayment is of Eurodollar Loans or ABR Loans; provided,
that if
a Eurodollar Loan is prepaid on any day other than the last day of the Interest
Period applicable thereto, the Borrower shall also pay any amounts owing
pursuant to Section 2.18. Upon receipt of any such notice, the Administrative
Agent shall promptly notify each relevant Lender thereof. If any such notice
is
given, the amount specified in such notice shall be due and payable on the
date
specified therein, together with accrued interest to such date on the amount
prepaid. Optional prepayments of the Loans (other than Incremental Loans)
made
prior to March 6, 2008 shall be accompanied by a prepayment fee, for the
account
of the Lenders, equal to 1.0% of the amount so prepaid. Optional prepayments
of
Incremental Loans shall be accompanied by such prepayment fees paid as may
be
specified in the Incremental Facility Activation Notice. Partial prepayments
of
the Loans shall be in an aggregate principal amount of $5,000,000 or a whole
multiple of $1,000,000 in excess thereof. Each notice delivered by the Borrower
pursuant to this Section shall be irrevocable, provided that such notice
may
state that it is conditioned upon the effectiveness of other credit facilities
or refinancings, the consummation of a particular Asset Sale or the occurrence
of a change of control, in which case such notice may be revoked by the Borrower
(by notice to the Administrative Agent on or prior to the specified prepayment
date) if such condition is not satisfied.
2.9. Mandatory
Prepayments.
(a) If
on any date the Borrower or any of its Restricted Subsidiaries shall receive
Net
Proceeds from any Asset Sale then such Net Proceeds shall be applied to the
prepayment of any outstanding Loans, subject to and in accordance with the
provisions of Section 6.11.
(b)
Each
prepayment of the Loans under this Section 2.9 shall be accompanied by accrued
interest to the date of such prepayment on the amount prepaid.
2.10. Conversion
and Continuation Options.
(a)
The
Borrower may elect from time to time to convert Eurodollar Loans to ABR Loans
by
giving the Administrative Agent at least three Business Days’ prior irrevocable
notice of such election, provided
that any
such conversion of Eurodollar Loans may only be made on the last day of an
Interest Period with respect thereto. The Borrower may elect from time to time
to convert ABR Loans to Eurodollar Loans by giving the Administrative Agent
irrevocable notice of such election no later than 1:00 P.M. New York City time,
on the third Business Day prior to the proposed conversion date (which notice
shall specify the length of the initial Interest Period therefor), provided
that no
ABR Loan may be converted into a Eurodollar Loan when any Event of Default
has
occurred and is continuing. Upon receipt of any such notice the Administrative
Agent shall promptly notify each relevant Lender thereof.
(b) Any
Eurodollar Loan may be continued as such by the Borrower giving irrevocable
notice to the Administrative Agent at least three Business Days prior to the
expiration of the then current Interest Period, in accordance with the
applicable provisions of the term “Interest Period” set forth in Section 1.1, of
the length of the next Interest Period to be applicable to such Loans,
provided
that (i)
if so required by the Administrative Agent, no Eurodollar Loan may be continued
as such when any Event of Default has occurred and is continuing and (ii) if
the
Borrower shall fail to give any required notice as described above in this
paragraph, the relevant Eurodollar Loans shall be automatically converted to
Eurodollar Loans having a one-month Interest Period on the last day of the
then
expiring Interest Period. Upon receipt of any such notice, the Administrative
Agent shall promptly notify each relevant Lender thereof.
2.11. Limitations
on Eurodollar Tranches .
Notwithstanding anything to the contrary in this Agreement, all borrowings,
conversions and continuations of Eurodollar Loans hereunder and all
selections
of Interest Periods hereunder shall be in such amounts and be made pursuant
to
such elections so that, (a) after giving effect thereto, the aggregate principal
amount of the Eurodollar Loans comprising each Eurodollar Tranche shall be
equal
to $10,000,000 or a whole multiple of $1,000,000 in excess thereof and (b)
no
more than ten Eurodollar Tranches shall be outstanding at any one
time.
2.12. Interest
Rates and Payment Dates.
(a)
Each Eurodollar Loan shall bear interest for each day during each Interest
Period with respect thereto at a rate per annum equal to the Eurodollar Rate
determined for such day plus the Applicable Margin.
(b) Each
ABR
Loan shall bear interest at a rate per annum equal to the ABR plus the
Applicable Margin.
(c) Upon
the
occurrence and during the continuation of any Event of Default described in
Section 8(a) or 8(b) hereof, the Applicable Margin with respect to (i) overdue
principal of Loans shall be increased by 2% per annum and (ii) to the
extent lawful, overdue interest, shall be increased by the same rate applicable
to overdue principal pursuant to subclause (i) above, in each case, from the
date of such non-payment until such amounts are paid in full (as well after
as
before judgment).
(d) Interest
shall be payable in arrears on each Interest Payment Date, provided
that
interest accruing pursuant to paragraph (c) of this Section shall be payable
from time to time on demand.
2.13. Computation
of Interest and Fees.
(a)
Interest and fees payable pursuant hereto shall be calculated on the basis
of a
360-day year for the actual days elapsed, except that, with respect to ABR
Loans, the rate of interest on which is calculated on the basis of the Prime
Rate, the interest thereon shall be calculated on the basis of a 365 (or 366,
as
the case may be) day year for the actual days elapsed. The Administrative Agent
shall as soon as practicable notify the Borrower and the relevant Lenders of
each determination of a Eurodollar Rate. Any change in the interest rate on
a
Loan resulting from a change in the ABR shall become effective as of the opening
of business on the day on which such change becomes effective. The
Administrative Agent shall as soon as practicable notify the Borrower and the
relevant Lenders of the effective date and the amount of each such change in
interest rate.
(b) Each
determination of an interest rate by the Administrative Agent pursuant to any
provision of this Agreement shall be conclusive and binding on the Borrower
and
the Lenders in the absence of manifest error. The Administrative Agent shall,
at
the request of the Borrower, deliver to the Borrower a statement showing the
quotations used by the Administrative Agent in determining any interest rate
pursuant to Section 2.12(a).
2.14. Inability
to Determine Interest Rate.
If
prior to the first day of any Interest Period:
(a) the
Administrative Agent shall have determined (which determination shall be
conclusive and binding upon the Borrower) that, by reason of circumstances
affecting the relevant market, adequate and reasonable means do not exist for
ascertaining the Eurodollar Rate for such Interest Period, or
(b) the
Administrative Agent shall have received notice from the Required Lenders that
the Eurodollar Rate determined or to be determined for such Interest Period
will
not adequately and fairly reflect the cost to such Lenders (as conclusively
certified by such Lenders) of making or maintaining their affected Loans during
such Interest Period,
the
Administrative Agent shall give telecopy or telephonic notice thereof to the
Borrower and the relevant Lenders as soon as practicable thereafter. If such
notice is given (x) any Eurodollar Loan requested to be made on the first day
of
such Interest Period shall be made as ABR Loans, (y) any Loans that were to
have
been converted on the first day of such Interest Period to Eurodollar Loans
shall be continued as ABR Loans and (z) any outstanding Eurodollar Loans shall
be converted, on the last day of the then-current Interest Period, to ABR Loans.
Until such notice has been withdrawn by the Administrative Agent, no further
Eurodollar Loans shall be made or continued as such, nor shall the Borrower
have
the right to convert Loans to Eurodollar Loans.
2.15. Pro
Rata Treatment and Payments.
(a)
[Reserved].
(b) Each
payment (including each prepayment) by the Borrower on account of principal
of
and interest on the Loans shall be made pro rata
according to the respective outstanding principal amounts of the Loans then
held
by the Lenders. Amounts repaid or prepaid on account of the Loans may not be
reborrowed.
(c) [Reserved].
(d) All
payments (including prepayments) to be made by the Borrower hereunder, whether
on account of principal, interest, fees or otherwise, shall be made without
setoff or counterclaim and shall be made prior to 1:00 P.M., New York City
time,
on the due date thereof to the Administrative Agent, for the account of the
Lenders, at the Funding Office, in Dollars and in immediately available funds.
The Administrative Agent shall distribute such payments to the Lenders promptly
upon receipt in like funds as received. If any payment hereunder (other than
payments on Eurodollar Loans) becomes due and payable on a day other than a
Business Day, such payment shall be extended to the next succeeding Business
Day. If any payment on a Eurodollar Loan becomes due and payable on a day other
than a Business Day, the maturity thereof shall be extended to the next
succeeding Business Day unless the result of such extension would be to extend
such payment into another calendar month, in which event such payment shall
be
made on the immediately preceding Business Day. In the case of any extension
of
any payment of principal pursuant to the preceding two sentences, interest
thereon shall be payable at the then applicable rate during such
extension.
(e) Unless
the Administrative Agent shall have been notified in writing by any Lender
prior
to a borrowing that such Lender will not make the amount that would constitute
its share of such borrowing available to the Administrative Agent, the
Administrative Agent may assume that such Lender is making such amount available
to the Administrative Agent, and the Administrative Agent may, in reliance
upon
such assumption, make available to the Borrower a corresponding amount. If
such
amount is not made available to the Administrative Agent by the required time
on
the Borrowing Date therefor, such Lender shall pay to the Administrative Agent,
on demand, such amount with interest thereon at a rate equal to the daily
average Federal Funds Effective Rate for the period until such Lender makes
such
amount immediately available to the Administrative Agent. A certificate of
the
Administrative Agent submitted to any Lender with respect to any amounts owing
under this paragraph shall be conclusive in the absence of manifest error.
If
such Lender’s share of such borrowing is not made available to the
Administrative Agent by such Lender within three Business Days of such Borrowing
Date, the Administrative Agent shall also be entitled to recover such amount
with interest thereon at the rate per annum applicable to ABR Loans, on demand,
from the Borrower. Nothing in this paragraph shall be deemed to limit the rights
of the Administrative Agent or the Borrower against any Lender.
(f) Unless
the Administrative Agent shall have been notified in writing by the Borrower
prior to the date of any payment being made hereunder that the Borrower will
not
make such payment to the Administrative Agent, the Administrative Agent may
assume that the Borrower is making such
payment,
and the Administrative Agent may, but shall not be required to, in reliance
upon
such assumption, make available to the Lenders their respective pro rata
shares
of a corresponding amount. If such payment is not made to the Administrative
Agent by the Borrower within three Business Days of such required date, the
Administrative Agent shall be entitled to recover, on demand, from each Lender
to which any amount which was made available pursuant to the preceding sentence,
such amount with interest thereon at the rate per annum equal to the daily
average Federal Funds Effective Rate. Nothing herein shall be deemed to limit
the rights of the Administrative Agent or any Lender against the
Borrower.
2.16. Requirements
of Law.
(a) If
the adoption of or any change in any Requirement of Law or in the interpretation
or application thereof or compliance by any Lender with any request or directive
(whether or not having the force of law) from any central bank or other
Governmental Authority made subsequent to the Effective Date:
(i) shall
subject any Lender to any tax of any kind whatsoever with respect to this
Agreement or any Eurodollar Loan made by it, or change the basis of taxation
of
payments to such Lender in respect thereof (except for Non-Excluded Taxes
covered by Section 2.17 and changes in the rate of tax on the overall net income
of such Lender);
(ii) shall
impose, modify or hold applicable any reserve, special deposit, compulsory
loan
or similar requirement against assets held by, deposits or other liabilities
in
or for the account of, advances, loans or other extensions of credit by, or
any
other acquisition of funds by, any office of such Lender that is not otherwise
included in the determination of the Eurodollar Rate hereunder; or
(iii) shall
impose on such Lender any other condition;
and
the
result of any of the foregoing is to increase the cost to such Lender, by an
amount that such Lender deems to be material, of making, converting into,
continuing or maintaining Eurodollar Loans or to reduce any amount receivable
hereunder in respect thereof, then, in any such case, the Borrower shall
promptly pay such Lender, upon its demand, any additional amounts necessary
to
compensate such Lender for such increased cost or reduced amount receivable.
If
any Lender becomes entitled to claim any additional amounts pursuant to this
paragraph, it shall promptly notify the Borrower (with a copy to the
Administrative Agent) of the event by reason of which it has become so entitled.
(b) If
any
Lender shall have determined that the adoption of or any change in any
Requirement of Law regarding capital adequacy or in the interpretation or
application thereof or compliance by such Lender or any corporation controlling
such Lender with any request or directive regarding capital adequacy (whether
or
not having the force of law) from any Governmental Authority made subsequent
to
the Effective Date shall have the effect of reducing the rate of return on
such
Lender’s or such corporation’s capital as a consequence of its obligations
hereunder to a level below that which such Lender or such corporation could
have
achieved but for such adoption, change or compliance (taking into consideration
such Lender’s or such corporation’s policies with respect to capital adequacy)
by an amount deemed by such Lender to be material, then from time to time,
after
submission by such Lender to the Borrower (with a copy to the Administrative
Agent) of a written request therefor, the Borrower shall pay to such Lender
such
additional amount or amounts as will compensate such Lender for such reduction;
provided
that the
Borrower shall not be required to compensate a Lender pursuant to this paragraph
for any amounts incurred more than six months prior to the date that such Lender
notifies the Borrower of such Lender’s intention to claim compensation therefor;
and provided further
that, if
the circumstances giving rise to such claim have a retroactive effect, then
such
six-month period shall be extended to include the period of such retroactive
effect.
(c) A
certificate as to any additional amounts payable pursuant to this Section
submitted by any Lender to the Borrower (with a copy to the Administrative
Agent) shall be conclusive in the absence of manifest error. The obligations
of
the Borrower pursuant to this Section shall survive the termination of this
Agreement and the payment of the Loans and all other amounts payable
hereunder.
2.17. Taxes.
(a) All
payments made by the Borrower under this Agreement shall be made free and clear
of, and without deduction or withholding for or on account of, any present
or
future income, stamp or other taxes, levies, imposts, duties, charges, fees,
deductions or withholdings, now or hereafter imposed, levied, collected,
withheld or assessed by any Governmental Authority, excluding net income taxes
and franchise taxes (imposed in lieu of net income taxes) imposed on the
Administrative Agent or any Lender as a result of a present or former connection
between the Administrative Agent or such Lender and the jurisdiction of the
Governmental Authority imposing such tax or any political subdivision or taxing
authority thereof or therein (other than any such connection arising solely
from
the Administrative Agent or such Lender having executed, delivered or performed
its obligations or received a payment under, or enforced, this Agreement or
any
other Loan Document). If any such non-excluded taxes, levies, imposts, duties,
charges, fees, deductions or withholdings (“Non-Excluded
Taxes”)
or
Other Taxes are required to be withheld from any amounts payable to the
Administrative Agent or any Lender hereunder, the amounts so payable to the
Administrative Agent or such Lender shall be increased to the extent necessary
to yield to the Administrative Agent or such Lender (after payment of all
Non-Excluded Taxes and Other Taxes) interest or any such other amounts payable
hereunder at the rates or in the amounts specified in this Agreement,
provided,
however,
that
the Borrower shall not be required to increase any such amounts payable to
any
Lender with respect to any Non-Excluded Taxes (i) that are attributable to
such
Lender’s failure to comply with the requirements of paragraph (d) or (e) of this
Section or (ii) that are United States withholding taxes imposed on amounts
payable to such Lender at the time the Lender becomes a party to this Agreement,
except to the extent that such Lender’s assignor (if any) was entitled, at the
time of assignment, to receive additional amounts from the Borrower with respect
to such Non-Excluded Taxes pursuant to this paragraph.
(b) In
addition, the Borrower shall pay any Other Taxes to the relevant Governmental
Authority in accordance with applicable law.
(c) Whenever
any Non-Excluded Taxes or Other Taxes are payable by the Borrower, as promptly
as possible thereafter the Borrower shall send to the Administrative Agent
for
its own account or for the account of the relevant Lender, as the case may
be, a
certified copy of an original official receipt received by the Borrower showing
payment thereof. If the Borrower fails to pay any Non-Excluded Taxes or Other
Taxes when due to the appropriate taxing authority or fails to remit to the
Administrative Agent the required receipts or other required documentary
evidence, the Borrower shall indemnify the Administrative Agent and the Lenders
for any incremental taxes, interest or penalties that may become payable by
the
Administrative Agent or any Lender as a result of any such failure.
(d) Each
Lender (or Transferee) that is not a “U.S. Person” as defined in Section
7701(a)(30) of the Code (a “Non-U.S.
Lender”)
shall
deliver to the Borrower and the Administrative Agent (or, in the case of a
Participant, to the Lender from which the related participation shall have
been
purchased) two copies of either U.S. Internal Revenue Service Form W-8BEN or
Form W-8ECI, or, in the case of a Non-U.S. Lender claiming exemption from U.S.
federal withholding tax under Section 871(h) or 881(c) of the Code with respect
to payments of “portfolio interest”, a statement substantially in the form of
Exhibit G and a Form W-8BEN, or any subsequent versions thereof or successors
thereto, properly completed and duly executed by such Non-U.S. Lender claiming
complete exemption from U.S. federal withholding tax on all payments by the
Borrower under this Agreement and the other Loan Documents. Such forms shall
be
delivered by each Non-U.S. Lender on or before the date it becomes a party
to
this Agreement (or, in the case of any Participant, on or before the date such
Participant
purchases
the related participation). In addition, each Non-U.S. Lender shall deliver
such
forms promptly upon the obsolescence or invalidity of any form previously
delivered by such Non-U.S. Lender. Each Non-U.S. Lender shall promptly notify
the Borrower at any time it determines that it is no longer in a position
to
provide any previously delivered certificate to the Borrower (or any other
form
of certification adopted by the U.S. taxing authorities for such purpose).
The
inability of a Non-U.S. Lender (or a Transferee) to deliver any form pursuant
to
this Section 2.17(d) as a result of a change in law after the date such Lender
(or a Transferee) becomes a Lender (or a Transferee) hereunder or as a result
of
a change in circumstances of the Borrower or the use of proceeds of such
Lender’s (or Transferee’s) Loans shall not constitute a failure to comply with
this Section 2.17(d) and accordingly the indemnities to which such Person
is
entitled pursuant to this Section 2.17 shall not be affected as a result
of such
inability. If a Lender (or Transferee) as to which the preceding sentence
does
not apply is unable to deliver any form pursuant to this Section 2.17(d),
the
sole consequence of such failure to deliver as a result of such inability
shall
be that the indemnity described in Section 2.17(a) hereof for any Non-Excluded
Taxes shall not be available to such Lender or Transferee with respect to
the
period that would otherwise be covered by such form.
(e) A
Lender
that is entitled to an exemption from non-U.S. withholding tax under the law
of
the jurisdiction in which the Borrower is located, or any treaty to which such
jurisdiction is a party, with respect to payments under this Agreement shall
deliver to the Borrower (with a copy to the Administrative Agent), at the time
or times prescribed by applicable law or reasonably requested by the Borrower,
such properly completed and executed documentation prescribed by applicable
law
as will permit such payments to be made without withholding, provided
that
such Lender is legally entitled to complete, execute and deliver such
documentation and in such Lender’s judgment such completion, execution or
submission would not materially prejudice the legal position of such
Lender.
(f) Any
Lender (or Transferee) claiming any indemnity payment or additional amounts
payable pursuant to Section 2.17(a) shall use reasonable efforts (consistent
with legal and regulatory restrictions) to file any certificate or document
reasonably requested in writing by the Borrower if the making of such a filing
would avoid the need for or reduce the amount of any such indemnity payment
or
additional amounts that may thereafter accrue.
(g) The
agreements in this Section shall survive the termination of this Agreement
and
the payment of the Loans and all other amounts payable hereunder.
2.18. Indemnity.
The
Borrower agrees to indemnify each Lender and to hold each Lender harmless from
any loss or expense that such Lender may sustain or incur as a consequence
of
(a) default by the Borrower in making a borrowing of, conversion into or
continuation of Eurodollar Loans after the Borrower has given a notice
requesting the same in accordance with the provisions of this Agreement, (b)
default by the Borrower in making any prepayment of or conversion of Eurodollar
Loans after the Borrower has given a notice thereof in accordance with the
provisions of this Agreement or (c) the making of a prepayment of Eurodollar
Loans on a day that is not the last day of an Interest Period with respect
thereto. Such indemnification may include an amount equal to the excess, if
any,
of (i) the amount of interest that would have accrued on the amount so prepaid,
or not so borrowed, converted or continued, for the period from the date of
such
prepayment or of such failure to borrow, convert or continue to the last day
of
such Interest Period (or, in the case of a failure to borrow, convert or
continue, the Interest Period that would have commenced on the date of such
failure) in each case at the applicable rate of interest for such Loans provided
for herein (excluding, however, the Applicable Margin included therein, if
any)
over
(ii) the
amount of interest (as reasonably determined by such Lender) that would have
accrued to such Lender on such amount by placing such amount on deposit for
a
comparable period with leading banks in the interbank eurodollar market. A
certificate as to any amounts payable pursuant to this Section submitted to
the
Borrower by any Lender shall be conclusive in the absence of manifest error.
This
covenant shall survive the termination of this Agreement and the payment
of the
Loans and all other amounts payable hereunder.
2.19. Change
of Lending Office.
Each
Lender agrees that, upon the occurrence of any event giving rise to the
operation of Section 2.16 or 2.17(a) with respect to such Lender, it will,
if
requested by the Borrower, use reasonable efforts (subject to overall policy
considerations of such Lender) to designate another lending office for any
Loans
affected by such event with the object of avoiding the consequences of such
event; provided,
that
such designation is made on terms that, in the sole judgment of such Lender,
cause such Lender and its lending office(s) to suffer no economic, legal or
regulatory disadvantage, and provided,
further,
that
nothing in this Section shall affect or postpone any of the obligations of
any
Borrower or the rights of any Lender pursuant to Section 2.16 or
2.17(a).
2.20. Replacement
of Lenders.
The
Borrower shall be permitted to replace any Lender that (a) requests
reimbursement for amounts owing pursuant to Section 2.16 or 2.17(a) or (b)
defaults in its obligation to make Loans hereunder, with a replacement financial
institution; provided
that (i)
such replacement does not conflict with any Requirement of Law, (ii) no Event
of
Default shall have occurred and be continuing at the time of such replacement,
(iii) prior to any such replacement, such Lender shall have taken no action
under Section 2.19 which has eliminated the continued need for payment of
amounts owing pursuant to Section 2.16 or 2.17(a), (iv) the replacement
financial institution shall purchase, at par, all Loans and other amounts owing
to such replaced Lender on or prior to the date of replacement, (v) the Borrower
shall be liable to such replaced Lender under Section 2.18 if any Eurodollar
Loan owing to such replaced Lender shall be purchased other than on the last
day
of the Interest Period relating thereto, (vi) the replacement financial
institution, if not already a Lender, shall be reasonably satisfactory to the
Administrative Agent, (vii) the replaced Lender shall be obligated to make
such
replacement in accordance with the provisions of Section 10.6 (provided that
the
Borrower shall be obligated to pay the registration and processing fee referred
to therein), (viii) until such time as such replacement shall be consummated,
the Borrower shall pay all additional amounts (if any) required pursuant to
Section 2.16 or 2.17(a), as the case may be, and (ix) any such replacement
shall not be deemed to be a waiver of any rights that the Borrower, the Agents
or any other Lender shall have against the replaced Lender.
In
the
event that any Lender (a “Non-Consenting
Lender”)
fails
to consent to any proposed amendment, modification, termination, waiver or
consent with respect to any provision hereof or of any other Credit Document
that requires the unanimous approval of all of the Lenders or the approval
of
all of the Lenders directly affected thereby, in each case in accordance with
the terms of Section 10.1, the Borrower shall be permitted to replace such
Non-Consenting Lender with a replacement financial institution satisfactory
to
the Administrative Agent, so long as the consent of the Required Lenders shall
have been obtained with respect to such amendment, modification, termination,
waiver or consent; provided
that
(i) such replacement does not conflict with any applicable law, treaty,
rule or regulation or determination of an arbitrator or a court or other
Governmental Authority, (ii) the replacement financial institution shall
purchase, at par, all Loans and other amounts owing to the Non-Consenting Lender
pursuant to the Credit Documents on or prior to the date of replacement,
(iii) the replacement financial institution shall approve the proposed
amendment, modification, termination, waiver or consent, (iv) the Borrower
shall
be liable to the Non-Consenting Lender under Section 2.18 if any Eurodollar
Loan
owing to the Non-Consenting Lender shall be purchased other than on the last
day
of the Interest Period relating thereto, (v) the Non-Consenting Lender shall
be
obligated to make such replacement in accordance with the provisions of Section
10.6(c) (provided that the Borrower shall be obligated to pay the registration
and processing fee referred to therein), (vi) until such time as such
replacement shall be consummated, the Borrower shall pay to the Non-Consenting
Lender all additional amounts (if any) required pursuant to Section 2.16, 2.17
or 2.18, as the case may be, (vii) the Borrower provides at least three Business
Days’ prior notice to the Non-Consenting Lender, (viii) any such replacement
shall not be deemed to be a waiver of any rights that the Borrower, the
Administrative Agent
or
any
other Lender shall have against the Non-Consenting Lender and (ix)
in
connection with any replacement of a Non-Consenting Lender prior to March
6,
2008, the Borrower shall pay such Lender a premium equal to 1% of the principal
amount of such Lender’s Loans.
In the
event any Non-Consenting Lender fails to execute the agreements required
under
Section 10.6 in connection with an assignment pursuant to this Section 2.20,
the
Borrower may, upon two Business Days’ prior notice to the Non-Consenting Lender,
execute such agreements on behalf of the Non-Consenting
Lender.
SECTION
3. [RESERVED]
SECTION
4. REPRESENTATIONS
AND WARRANTIES
To
induce
the Administrative Agent and the Lenders to enter into this Agreement and to
make the Loans, the Borrower hereby represents and warrants to the
Administrative Agent and each Lender that:
4.1. Financial
Condition.
The
audited consolidated balance sheet of the Borrower as at December 31, 2005,
and
the related audited consolidated statements of operations and cash flows for
the
fiscal year ended on such date, have been prepared based on the best information
available to the Borrower as of the date of delivery thereof, and present fairly
the consolidated financial condition of the Borrower as at such date, and the
consolidated results of its operations and its consolidated cash flows for
the
period then ended. All such financial statements, including the related
schedules and notes thereto, have been prepared in accordance with GAAP applied
consistently throughout the periods involved (except as approved by KPMG and
disclosed therein or as otherwise disclosed therein). The Borrower and its
Subsidiaries do not have any material obligations pursuant to any Guarantee,
contingent liabilities and liabilities for taxes, or any long-term leases or
unusual forward or long-term commitments, including any interest rate or foreign
currency swap or exchange transaction or other obligation in respect of
derivatives, that are not reflected in such financial statements.
4.2. No
Change.
Since
December 31, 2005 there has been no event, development or circumstance that
has
had or could reasonably be expected to have a Material Adverse
Effect.
4.3. Existence;
Compliance with Law.
The
Borrower and its Subsidiaries (a) except in the case of any Shell Subsidiary
and
any former Shell Subsidiary, is duly organized, validly existing and in good
standing under the laws of the jurisdiction of its organization, (b) has the
power and authority, and the legal right, to own and operate its property,
to
lease the property it operates as lessee and to conduct the business in which
it
is currently engaged, (c) is duly qualified as a foreign entity and in good
standing under the laws of each jurisdiction where its ownership, lease or
operation of property or the conduct of its business requires such qualification
and (d) is in compliance with all Requirements of Law, in each case with respect
to clauses (b), (c) and (d), except as could not, in the aggregate, reasonably
be expected to have a Material Adverse Effect.
4.4. Power;
Authorization; Enforceable Obligations.
The
Borrower has the power and authority, and the legal right, to make, deliver
and
perform the Loan Documents and to borrow hereunder. The Borrower has taken
all
necessary action to authorize the execution, delivery and performance of the
Loan Documents and to authorize the borrowings on the terms and conditions
of
this Agreement. No consent or authorization of, filing with, notice to or other
act by or in respect of, any Governmental Authority or any other Person is
required in connection with the borrowing hereunder or with the execution,
delivery, performance, validity or enforceability of this Agreement or any
of
the Loan Documents, other than those that have been obtained or made and are
in
full force and effect. Each Loan Document has been duly executed and delivered
on behalf of the Borrower. This Agreement constitutes, and each other Loan
Document upon execution will constitute, a valid and legally binding obligation
of
the
Borrower, enforceable against the Borrower in accordance with its terms,
except
as enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the enforcement of
creditors’ rights generally and by general equitable principles (whether
enforcement is sought by proceedings in equity or at law).
4.5. No
Legal Bar.
The
execution, delivery and performance of this Agreement and the other Loan
Documents, the borrowings hereunder and the use of the proceeds thereof, will
not violate any material Requirement of Law or any material Contractual
Obligation of any Designated Holding Company, the Borrower or any of its
Subsidiaries and will not result in, or require, the creation or imposition
of
any Lien on any of their respective properties or revenues pursuant to any
Requirement of Law or any such Contractual Obligation (other than the Liens
created by the Pledge Agreement or permitted by Section 6.14).
4.6. Litigation.
No
litigation, investigation or proceeding of or before any arbitrator or
Governmental Authority is pending or, to the knowledge of the Borrower,
threatened by or against the Borrower or any of its Subsidiaries, or against
any
of their respective properties or revenues (a) with respect to any of the Loan
Documents or any of the transactions contemplated hereby or thereby, or (b)
that
could reasonably be expected to have a Material Adverse Effect.
4.7. No
Default.
Neither
the Borrower nor any of its Subsidiaries is in default under or with respect
to
any of its Contractual Obligations in any respect that could reasonably be
expected to have a Material Adverse Effect. No Default or Event of Default
has
occurred and is continuing.
4.8. Ownership
of Property; Liens.
The
Borrower and each of its Subsidiaries has marketable title to, or a valid
leasehold interest in, all its real property, and good title to, or a valid
leasehold interest in, all its other property (in each case except as could
not
reasonably be expected to have a Material Adverse Effect), and none of such
property is subject to any Lien except Liens not prohibited by Section
6.14.
4.9. Intellectual
Property.
The
Borrower and each of its Subsidiaries owns, or is licensed to use, all
Intellectual Property necessary for the conduct of its business as currently
conducted, except as could not reasonably be expected to have a Material Adverse
Effect. No claim has been asserted and is pending by any Person challenging
or
questioning the use, validity or effectiveness of any Intellectual Property
owned or licensed by the Borrower or any of its Subsidiaries that could
reasonably be expected to result in a breach of the representation and warranty
set forth in the first sentence of this Section 4.9, nor does the Borrower
know
of any valid basis for any such claim. The use of all Intellectual Property
necessary for the conduct of the business of the Borrower and its Subsidiaries,
taken as a whole, does not infringe on the rights of any Person in such a manner
that could reasonably be expected to result in a breach of the representation
and warranty set forth in the first sentence of this Section 4.9.
4.10. Taxes.
The
Borrower and each of its Subsidiaries (other than Shell Subsidiaries) has filed
or caused to be filed all federal, state and other material tax returns that
are
required to be filed and has paid all taxes shown to be due and payable on
said
returns or on any assessments made against it or any of its property and all
other taxes, fees or other charges imposed on it or any of its property by
any
Governmental Authority (other than those with respect to which the amount or
validity thereof are currently being contested in good faith by appropriate
proceedings and with respect to which reserves in conformity with GAAP have
been
provided on the books of the Borrower or its Subsidiaries, as the case may
be).
4.11. Federal
Regulations.
No part
of the proceeds of any Loans will be used (a) for “buying” or “carrying” any
“margin stock” within the respective meanings of each of the quoted terms
under
Regulation U as now and from time to time hereafter in effect or for any
purpose
that violates the provisions of the Regulations of the Board. If requested
by
any Lender or the Administrative Agent, the Borrower will furnish to the
Administrative Agent and each Lender a statement to the foregoing effect
in
conformity with the requirements of FR Form G-3 or FR Form U-1, as applicable,
referred to in Regulation U.
4.12. Labor
Matters.
Except
as, in the aggregate, could not reasonably be expected to have a Material
Adverse Effect: (a) there are no strikes or other labor disputes against
the
Borrower or any of its Subsidiaries pending or, to the knowledge of the
Borrower, threatened; (b) hours worked by, and payment made to, employees of
the
Borrower and its Subsidiaries have not been in violation of the Fair Labor
Standards Act or any other applicable Requirement of Law dealing with such
matters; and (c) all payments due from the Borrower
or any of its Subsidiaries on account of employee health and welfare insurance
have been paid or accrued as a liability on the books of the
Borrower or the relevant Subsidiary.
4.13. ERISA.
Neither
a Reportable Event nor an “accumulated funding deficiency” (within the meaning
of Section 412 of the Code or Section 302 of ERISA) has occurred during the
five-year period prior to the date on which this representation is made or
deemed made with respect to any Plan, and each Plan has complied in all material
respects with the applicable provisions of ERISA and the Code. No termination
of
a Single Employer Plan has occurred, and no Lien in favor of the PBGC or a
Plan
has arisen, during such five-year period. The present value of all accrued
benefits under each Single Employer Plan (based on those assumptions used to
fund such Plans) did not, as of the last annual valuation date prior to the
date
on which this representation is made or deemed made, exceed the value of the
assets of such Plan allocable to such accrued benefits by more than $1,000,000.
Neither the Borrower nor any Commonly Controlled Entity has had a complete
or
partial withdrawal from any Multiemployer Plan that has resulted or could
reasonably be expected to result in a material liability under ERISA, and
neither the Borrower nor, to the Borrower’s knowledge, any Commonly Controlled
Entity would become subject to any material liability under ERISA if the
Borrower or any Commonly Controlled Entity were to withdraw completely from
all
Multiemployer Plans as of the valuation date most closely preceding the date
on
which this representation is made or deemed made. No Multiemployer Plan of
the
Borrower or any Commonly Controlled Entity is in Reorganization or
Insolvent.
4.14. Investment
Company Act; Other Regulations.
The
Borrower is not an “investment company”, or a company “controlled” by an
“investment company”, within the meaning of the Investment Company Act of 1940,
as amended. The Borrower is not subject to regulation under any Requirement
of
Law (other than Regulation X of the Board) that limits its ability to incur
Indebtedness.
4.15. Subsidiaries.
As of
the Effective Date, (a)
Schedule 4.15 sets forth the name and jurisdiction of organization of each
Designated Holding Company, the Borrower and each of the
Borrower’s Subsidiaries (except any Shell Subsidiary) and, as to each such
Person, the percentage of each class of Equity Interests owned by the
Borrower and each of the Borrower’s Subsidiaries, and (b) except as set forth on
Schedule 4.15, there are no outstanding subscriptions, options, warrants, calls,
rights or other agreements or commitments of any nature relating to any Equity
Interests of the Borrower or any of its Subsidiaries (except any Shell
Subsidiary), except as created by the Loan Documents, the CCO First Lien Credit
Agreement and the CCO Senior Note Indenture and documents relating
thereto.
4.16. Use
of
Proceeds.
The
proceeds of the Loans shall be used to redeem or otherwise repurchase up to
$350,000,000 of Indebtedness of any Parent and/or to repay revolving loans
outstanding under the CCO First Lien Credit Agreement and to pay interest,
fees
and expenses incurred in connection therewith.
4.17. Environmental
Matters.
Except
as, in the aggregate, could not reasonably be expected to have a Material
Adverse Effect:
(a) the
facilities and properties owned, leased or operated by the Borrower or any
of
its Subsidiaries (the “Properties”)
do not
contain, and have not previously contained, any Materials of Environmental
Concern in amounts or concentrations or under circumstances that constitute
or
constituted a violation of, or could give rise to liability under, any
Environmental Law;
(b) neither
the Borrower
nor any
of its Subsidiaries has received or is
aware of
any notice of violation, alleged violation, non-compliance, liability or
potential liability regarding environmental matters or compliance with
Environmental Laws with regard to any of the Properties or the business operated
by the
Borrower or any of its Subsidiaries (the “Business”),
nor
does
the
Borrower have knowledge or reason to believe that any such notice will be
received or is being threatened;
(c) Materials
of Environmental Concern have not been transported or disposed of from the
Properties in violation of, or in a manner or to a location that could give
rise
to liability under, any Environmental Law, nor have any Materials of
Environmental Concern been generated, treated, stored or disposed of at, on
or
under any of the Properties in violation of, or in a manner that could give
rise
to liability under, any applicable Environmental Law;
(d) no
judicial proceeding or governmental or administrative action is pending or,
to
the knowledge of the
Borrower, threatened, under any Environmental Law to which the Borrower or
any
Subsidiary is or will be named as a party with respect to the Properties or
the
Business, nor are there any consent decrees or other decrees, consent orders,
administrative orders or other orders, or other administrative or judicial
requirements outstanding under any Environmental Law with respect to the
Properties or the Business;
(e) there
has
been no release or threat of release of Materials of Environmental Concern
at or
from the Properties, or arising from or related to the operations of the
Borrower or any Subsidiary in connection with the Properties or otherwise in
connection with the Business, in violation of or in amounts or in a manner
that
could give rise to liability under Environmental Laws;
(f) the
Properties and all operations at the Properties are in compliance, and have
in
the last five years been in compliance, with all applicable Environmental Laws,
and there is no contamination at, under or about the Properties or violation
of
any Environmental Law with respect to the Properties or the Business;
and
(g) neither
the Borrower nor any of its Subsidiaries has assumed any liability of any other
Person under Environmental Laws.
4.18. Certain
Cable Television Matters.
Except
as, in the aggregate, could not reasonably be expected to result in a Material
Adverse Effect:
(a) (i)
the
Borrower and its Subsidiaries possess all Authorizations necessary to own,
operate and construct the CATV Systems or otherwise for the operations of their
businesses and are not in violation thereof and (ii) all such Authorizations
are
in full force and effect and no event has occurred that permits, or after notice
or lapse of time could permit, the revocation, termination or material and
adverse modification of any such Authorization;
(b) neither
the Borrower nor any of its Subsidiaries is in violation of any duty or
obligation required by the Communications Act of 1934, as amended, or any FCC
rule or regulation applicable to the operation of any portion of any of the
CATV
Systems;
(c) (i)
there
is not pending or, to the best knowledge of the
Borrower, threatened, any action by the FCC to revoke, cancel, suspend or refuse
to renew any FCC License held by the
Borrower or any of its Subsidiaries and (ii) there is not pending or, to the
best knowledge of the
Borrower, threatened, any action by the FCC to modify adversely, revoke, cancel,
suspend or refuse to renew any other Authorization; and
(d) there
is
not issued or outstanding or, to the best knowledge of the
Borrower, threatened, any notice of any hearing, violation or complaint against
the
Borrower or any of its Subsidiaries with respect to the operation of any portion
of the CATV Systems and
the
Borrower has no knowledge that any Person intends to contest renewal of any
Authorization.
4.19. Accuracy
of Information, Etc.
No
statement or information (other than projections and pro forma
financial information) contained in this Agreement, any other Loan Document,
the
Confidential Information Memorandum or any other document, certificate or
statement furnished by or on behalf of the Borrower to the Agents or the
Lenders, or any of them, for use in connection with the transactions
contemplated by this Agreement or the other Loan Documents, as supplemented
and
updated from time to time (including through the filing of reports with the
SEC)
prior to the date this representation and warranty is made or deemed made and
when taken as a whole with other such statements and information, contains
any
untrue statement of a material fact or omits to state a material fact necessary
to make the statements contained herein or therein not misleading. The
projections and pro forma
financial information contained in the materials referenced above are based
upon
good faith estimates and assumptions believed by management of the Borrower
to
be reasonable at the time made, it being recognized by the Lenders that such
financial information as it relates to future events is not to be viewed as
fact
and that actual results during the period or periods covered by such financial
information may differ from the projected results set forth therein by a
material amount. There is no fact known to the Borrower (other
than information of a general economic or political nature)
that
could reasonably be expected to have a Material Adverse Effect that has not
been
expressly disclosed herein, in the other Loan Documents, in the Confidential
Information Memorandum, in reports filed with the SEC or in any other documents,
certificates and statements furnished to the Agents and the Lenders for use
in
connection with the transactions contemplated hereby and by the other Loan
Documents.
4.20. Security
Interests.
(a) The
Pledge Agreement is effective to create in favor of the Administrative Agent,
for the benefit of the Lenders, a legal, valid and enforceable security interest
in the Collateral described therein and proceeds thereof. In the case of
certificated Pledged Stock (constituting securities within the meaning of
Section 8-102(a)(15) of the New York UCC) described in the Pledge Agreement,
when certificates representing such Pledged Stock are delivered to the
Administrative Agent under the CCO First Lien Credit Agreement (which
certificates shall be held for the benefit of the Administrative Agent and
the
Lenders hereunder subject to the prior security interest of the CCO First Lien
Administrative Agent and the lenders under the CCO First Lien Credit Agreement
and the trustee and the securityholders under the CCO Senior Note Indenture),
and in the case of the other Collateral described in the Pledge Agreement,
when
financing statements in appropriate form are filed in the offices specified
on
Schedule 4.20(a), the Pledge Agreement shall constitute a fully perfected
Lien on, and security interest in, all right, title and interest of the parties
thereto in such Collateral and the proceeds thereof, as security for the
Obligations (as defined in the Pledge Agreement), in each case prior and
superior in right to any other Person, other than with respect to Liens not
prohibited by Section 6.14.
(b)
None
of the Equity Interests of the Borrower and its Subsidiaries which are limited
liability companies or partnerships constitutes a security under Section 8-103
of the New York UCC or the corresponding code or statute of any other applicable
jurisdiction.
4.21. Solvency.
The
Borrower and its Subsidiaries, taken as a whole, are, and after giving effect
to
the financing transactions referred to herein will be and will continue to
be,
Solvent.
4.22. Certain
Tax Matters.
As of
the Restatement Effective Date, the Borrower and each of its Subsidiaries (other
than any such Subsidiary that is organized as a corporation) is a Flow-Through
Entity.
SECTION
5. CONDITIONS
PRECEDENT
5.1. Conditions
to Initial Borrowing.
The
availability of Loans on the initial Borrowing Date hereunder is subject to
the
satisfaction of the following conditions precedent:
(a) Credit
Agreement; Pledge Agreement.
This
Agreement shall have been executed and delivered by the Agents, the Borrower
and
each Lender listed on Schedule 1.1. The Pledge Agreement shall have been
executed and delivered by the Borrower.
(b) Payment
of Fees, Expenses, Etc.
The
Borrower shall have paid all fees and expenses (i) required to be paid herein
for which invoices have been presented or (ii) as otherwise agreed to be paid
on
the Effective Date.
(c) Solvency
Certificate.
The
Administrative Agent shall have received a solvency certificate of the Borrower
dated the Effective Date, reasonably satisfactory to the Administrative
Agent.
(d) Legal
Opinions.
On
the
Effective Date, the Administrative Agent shall have received the legal opinion
of Gibson, Dunn & Crutcher LLP, counsel to Borrower, which opinion shall be
in form and substance reasonably satisfactory to the Administrative
Agent.
(e) Filings.
Uniform
Commercial Code financing statements required by the Pledge Agreement to be
filed in order to perfect in favor of the Administrative Agent, for the benefit
of the Lenders, a Lien on the Collateral described therein, prior and superior
in right to any other Person (other than with respect to Liens not prohibited
by
Section 6.14), shall be in proper form for filing.
(f) Closing
Certificate; Certified Certificate of Incorporation; Good Standing
Certificates.
The
Administrative Agent shall have received (i) a certificate of the Borrower,
dated the Closing Date, substantially in the form of Exhibit C, with
appropriate insertions and attachments and (ii) a good standing certificate
for the Borrower from its jurisdiction of organization.
5.2. Conditions
to the Extension of Credit.
The
agreement of each Lender to make the extension of credit requested to be made
by
it on each Borrowing Date (including the initial Borrowing Date) is subject
to
the satisfaction of the following conditions precedent:
(a) Representations
and Warranties.
Each of
the representations and warranties made by the Borrower in or pursuant to the
Loan Documents shall be true and correct in all material respects on and as
of
such date as if made on and as of such date (except for any representation
and
warranty that is made as of a specified earlier date, in which case such
representation and warranty shall have been true and correct in all material
respects as of such earlier date).
(b) No
Default.
No
Default or Event of Default shall have occurred and be continuing on such date
or after giving effect to the extensions of credit requested to be made on
such
date.
The
borrowing by the Borrower on each Borrowing Date shall constitute a
representation and warranty by the Borrower as of such date that the conditions
contained in this Section 5.2 have been satisfied.
SECTION
6. COVENANTS
6.1. [RESERVED].
6.2. [RESERVED].
6.3. Reports.
(a)
Whether or not required by the SEC, so long as any Loans are outstanding, the
Borrower shall furnish to the Administrative Agent, within the time periods
specified in the SEC’s rules and regulations:
(1) all
quarterly (commencing with the quarter ending June 30, 2007) and annual
financial information that would be required to be contained in a filing with
the SEC on Forms 10-Q and 10-K if the Borrower were required to file such forms,
including a “Management’s Discussion and Analysis of Financial Condition and
Results of Operations” section and, with respect to the annual information only,
a report on the annual consolidated financial statements of the Borrower of
its
independent public accountants; and
(2) all
information required to be contained in all current reports that would be
required to be filed with the SEC on Form 8-K if the Borrower were required
to
file such reports.
(b)
While
(1) any Parent of the Borrower that guarantees the obligations in respect
of the Loans is subject to the reporting obligations of Section 13 or 15(d)
of the Exchange Act (including pursuant to the terms of its Indebtedness),
(2) the rules and regulations of the SEC permit the Borrower and any such
Parent to report at the level of such Parent on a consolidated basis and
(3) such Parent is not engaged in any business in any material respect
other than incidental to its direct or indirect ownership of the Capital Stock
of the Borrower, such consolidated reporting at such Parent level in a manner
consistent with that described in this Section 6.3 for the Borrower shall
satisfy this Section 6.3; provided
that
such Parent includes in its reports information about the Borrower that is
required to be provided by a parent guaranteeing debt of an operating company
subsidiary pursuant to Rule 3-10 of Regulation S-X or any successor
rule then in effect.
For
any
fiscal quarter or fiscal year at the end of which Subsidiaries of the Borrower
are Unrestricted Subsidiaries, then the quarterly and annual financial
information required by this covenant shall include a reasonably detailed
presentation, either on the face of the financial statements or in the footnotes
thereto, and in Management's Discussion and Analysis of Financial Condition
and
Results of Operations, of the financial condition and results of operations
of
the Borrower and its Restricted Subsidiaries separate from the financial
condition and results of operations of the Unrestricted
Subsidiaries
of the Borrower.
6.4. Compliance
Certificate.
(a) The
Borrower shall deliver to the Administrative Agent, within 90 days after the
end
of each fiscal year, an Officers' Certificate stating that a review of the
activities of the Borrower and its Subsidiaries during the preceding fiscal
year
have been made under the supervision of the signing Officers with a view to
determining whether the Borrower has kept, observed, performed and fulfilled
its
obligations under this Agreement, and further stating, as to each such Officer
signing such certificate, that to the best of his or her knowledge the Borrower
has kept, observed, performed and fulfilled each and every covenant contained
in
this Agreement and is not in default in the performance or observance of any
of
the terms, provisions and conditions of this Agreement (or, if a Default or
Event of Default shall have occurred, describing all such Defaults or Events
of
Default of which he or she may have knowledge and what action the Borrower
is
taking or proposes to take with respect thereto).
(b) The
Borrower shall, so long as any of the Loans are outstanding, deliver to the
Administrative Agent, forthwith upon any Officer becoming aware of any Default
or Event of Default, an Officers' Certificate specifying such Default or Event
of Default and what action the Borrower is taking or proposes to take with
respect thereto.
6.5. Payment
of Taxes. The
Borrower
shall
pay, and shall cause each of its Restricted Subsidiaries to pay, prior to
delinquency, all material taxes, assessments, and governmental levies except
such as are contested in good faith and by appropriate proceedings or where
the
failure to effect such payment is not likely to result in a material adverse
effect on the Borrower and its Restricted Subsidiaries taken as a whole.
6.6. Stay,
Extension and Usury Laws.
The
Borrower covenants (to the extent that it may lawfully do so) that it shall
not
at any time insist upon, plead, or in any manner whatsoever claim or take the
benefit or advantage of, any stay, extension or usury law wherever enacted,
now
or at any time hereafter in force, that may affect the covenants or the
performance of this Agreement; and the Borrower (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any such
law, and covenants that it shall not, by resort to any such law, hinder, delay
or impede the execution of any power herein granted to the Administrative Agent,
but shall suffer and permit the execution of every such power as though no
such
law has been enacted.
6.7. Restricted
Payments.
The
Borrower shall not, and shall not permit any of its Restricted Subsidiaries
to,
directly or indirectly:
(a) declare
or pay any dividend or make any other payment or distribution on account of
its
or any of its Restricted Subsidiaries' Equity Interests (including any payment
in connection with any merger or consolidation involving the Borrower or any
of
its Restricted Subsidiaries) or to the direct or indirect holders of the
Borrower's or any of its Restricted Subsidiaries' Equity Interests in their
capacity as such (other than dividends or distributions payable (x) solely
in
Equity Interests (other than Disqualified Stock) of the Borrower or (y), in
the
case of the Borrower and its Restricted Subsidiaries, to the Borrower or a
Restricted Subsidiary thereof);
(b) purchase,
redeem or otherwise acquire or retire for value (including without limitation,
in connection with any merger or consolidation involving the Borrower or any
of
its Restricted Subsidiaries) any Equity Interests of the Borrower or any direct
or indirect Parent of the Borrower or any Restricted Subsidiary of the Borrower
(other than, in the case of the Borrower and its Restricted Subsidiaries, any
such Equity Interests owned by the Borrower or any of its Restricted
Subsidiaries); or
(c) make
any
payment on or with respect to, or purchase, redeem, defease or otherwise acquire
or retire for value, any Indebtedness of the Borrower that is subordinated
to
the Loans, except a payment of interest or principal at the Stated Maturity
thereof
(all
such
payments and other actions set forth in clauses (a), (b) and (c) above are
collectively referred to as “Restricted Payments”), unless, at the time of and
after giving effect to such Restricted Payment:
(1) no
Default or Event of Default shall have occurred and be continuing or would
occur
as a consequence thereof;
(2) the
Borrower would, at the time of such Restricted Payment and after giving pro
forma effect thereto as if such Restricted Payment had been made at the
beginning of the applicable quarter period, have been permitted to incur at
least $1.00 of additional Indebtedness pursuant to the Leverage Ratio test
set
forth in the first paragraph of Section 6.10; and
(3) such
Restricted Payment, together with the aggregate amount of all other Restricted
Payments made by the Borrower and its Restricted Subsidiaries from and after
October 1, 2003 (excluding Restricted Payments permitted by clauses (2), (3),
(4), (5), (6), (7), (8), (9) and (10) of the next succeeding paragraph), shall
not exceed, at the date of determination, the sum of the following: (A) an
amount equal to 100% of the Consolidated EBITDA of the Borrower for the period
beginning on the first day of the fiscal quarter commencing October 1, 2003
to
the end of the Borrower's most recently ended full fiscal quarter for which
internal financial statements are available, taken as a single accounting
period, less the product of 1.3 times the Consolidated Interest Expense of
the
Borrower for such period, plus
(B) an
amount equal to 100% of Capital Stock Sale Proceeds less any amount of such
Capital Stock Sale Proceeds used in connection with an Investment made on or
after October 1, 2003 pursuant to clause (5) of the definition of “Permitted
Investments,” plus
$100
million.
So
long
as no Default has occurred and is continuing or would be caused thereby, the
preceding provisions shall not prohibit:
(1) the
payment of any dividend within 60 days after the date of declaration thereof,
if
at said date of declaration such payment would have complied with the provisions
of this Agreement;
(2) the
redemption, repurchase, retirement, defeasance or other acquisition of any
subordinated Indebtedness of the Borrower in exchange for, or out of the net
proceeds of, the substantially concurrent sale (other than to a Restricted
Subsidiary of the Borrower) of Equity Interests of the Borrower (other than
Disqualified Stock); provided that the amount of any such net cash proceeds
that
are utilized for any such redemption, repurchase, retirement, defeasance or
other acquisition shall be excluded from clause (3) (B) of the preceding
paragraph;
(3) the
defeasance, redemption, repurchase or other acquisition of subordinated
Indebtedness of the Borrower with the net cash proceeds from an incurrence
of
Permitted Refinancing Indebtedness;
(4) regardless
of whether a Default then exists, the payment of any dividend or distribution
made in respect of any calendar year or portion thereof during which the
Borrower or any of its Subsidiaries is a Person that is not treated as a
separate tax paying entity for United States federal income tax purposes by
the
Borrower and its Subsidiaries (directly or indirectly) to the direct or indirect
holders of the Equity Interests of the Borrower or its Subsidiaries that are
Persons that are treated as a separate tax paying entity for United States
federal income tax purposes, in an amount sufficient to permit each such holder
to pay the actual income taxes (including required estimated tax installments)
that are required to be paid by it with respect to the taxable income of any
Parent (through its direct or indirect ownership of the Borrower and/or its
Subsidiaries), the Borrower, its Subsidiaries or any Unrestricted Subsidiary,
as
applicable, in any calendar year, as estimated in good faith by the Borrower
or
its Subsidiaries, as the case may be;
(5) regardless
of whether a Default then exists, the payment of any dividend by a Restricted
Subsidiary of the Borrower to the holders of its common Equity Interests on
a
pro rata basis;
(6) the
repurchase, redemption or other acquisition or retirement for value, or the
payment of any dividend or distribution to the extent necessary to permit the
repurchase, redemption or other acquisition or retirement for value, of any
Equity Interests of the Borrower or a Parent of the Borrower held by any member
of the Borrower's, such Parent's or any Restricted Subsidiary's management
pursuant to any management equity subscription agreement or stock option
agreement entered into in accordance with the policies of the Borrower, any
Parent or any Restricted Subsidiary; provided that the aggregate price paid
for
all such repurchased, redeemed, acquired or retired Equity Interests shall
not
exceed $10 million in any fiscal year of the Borrower;
(7) payment
of fees in connection with any acquisition, merger or similar transaction in
an
amount that does not exceed an amount equal to 1.25% of the transaction value
of
such acquisition, merger or similar transaction;
(8) additional
Restricted Payments directly or indirectly to CCH II or any other Parent (i)
regardless of whether a Default exists (other than an Event of Default under
Section 8(a), (b), (g) or (h)), for the purpose of enabling Charter Holdings,
CIH, CCH I, CCH II or any Charter Refinancing Subsidiary to pay interest when
due on Indebtedness under the Charter Holdings Indentures, the CIH Indenture,
the CCH I Indenture, the CCH II Indentures or any Charter Refinancing
Indebtedness, (ii) for the purpose of enabling CCI and/or any Charter
Refinancing Subsidiary to pay interest when due on Indebtedness under the CCI
Indentures and/or any Charter Refinancing Indebtedness and (iii) so long as
the
Borrower would have been permitted, at the time of such Restricted Payment
and
after giving pro forma effect thereto as if such Restricted Payment had been
made at the beginning of the applicable quarter period, to incur at least $1.00
of additional Indebtedness pursuant to the Leverage Ratio test set forth in
the
first paragraph of Section 6.10, (A) to the extent required to enable Charter
Holdings, CIH, CCH I, CCH II or any Charter Refinancing Subsidiary to defease,
redeem, repurchase, prepay, repay, discharge or otherwise acquire or retire
Indebtedness under the Charter Holdings Indentures, the CIH Indenture, the
CCH I
Indenture, the CCH II Indentures or any Charter Refinancing Indebtedness
(including any expenses incurred by any Parent in connection therewith) or
(B)
consisting of purchases, redemptions or other acquisitions by the Borrower
or
its Restricted Subsidiaries of Indebtedness under the Charter Holdings
Indentures, the CIH Indenture, the CCH I Indenture, the CCH II Indentures or
any
Charter Refinancing Indebtedness (including any expenses incurred by the
Borrower and its Restricted Subsidiaries
in
connection therewith) and the distribution, loan or investment to any Parent
of
Indebtedness so purchased, redeemed or acquired;
(9) Restricted
Payments directly or indirectly to CCH II or any other Parent regardless of
whether a Default exists (other than an Event of Default under Section 8(a),
(b), (g) or (h)), for the purpose of enabling such Person (A) to pay interest
on
and (B) so long as the Borrower would, at the time of such Restricted Payment
and after giving pro forma effect thereto as if such Restricted Payment had
been
made at the beginning of the applicable quarter period, have been permitted
to
incur at least $1.00 of additional Indebtedness pursuant to the Leverage Ratio
test set forth in the first paragraph of Section 6.10, to defease, redeem,
repurchase, prepay, repay, discharge or otherwise acquire or retire, in each
case, Indebtedness of such Parent (x) which is not held by another Parent and
(y) to the extent that the net cash proceeds of such Indebtedness are or were
used for the (1) payment of interest or principal (or premium) on any
Indebtedness of a Parent (including
(A) by way of a tender, redemption or prepayment of such Indebtedness and (B)
amounts set aside to prefund any such payment),
(2)
direct or indirect Investment in the Borrower or any of its Restricted
Subsidiaries (to the extent such Investment is excluded from clause (3)(B)
of the preceding paragraph) or (3) payment of amounts that would be permitted
to
be paid by way of a Restricted Payment under Section 6.7(10) (including the
expenses of any exchange transaction); and
(10) Restricted
Payments directly or indirectly to CCH II or any other Parent of (A) attorneys’
fees, investment banking fees, accountants’ fees, underwriting discounts and
commissions and other customary fees and expenses (including any commitment
and
other fees payable in connection with Credit Facilities) actually incurred
in
connection with any issuance, sale or incurrence by CCH II or such Parent of
Equity Interests or Indebtedness, or any exchange of securities or tender for
outstanding debt securities, or (B) the costs and expenses of any offer to
exchange privately placed securities in respect of the foregoing for publicly
registered securities or any similar concept having a comparable
purpose.
The
amount of all Restricted Payments (other than cash) shall be the fair market
value on the date of the Restricted Payment of the asset(s) or securities
proposed to be transferred or issued by the Borrower or any of its Restricted
Subsidiaries pursuant to the Restricted Payment. The fair market value of any
assets or securities that are required to be valued by this covenant shall
be
determined by the Board of Directors of CCI or the Borrower, whose resolution
with respect thereto shall be delivered to the Administrative Agent. Such Board
of Directors' determination must be based upon an opinion or appraisal issued
by
an accounting, appraisal or investment banking firm of national standing if
the
fair market value exceeds $100 million.
Not
later
than the date of making any Restricted Payment involving an amount or fair
market value in excess of $10 million, the Borrower shall deliver to the
Administrative Agent an Officers' Certificate stating that such Restricted
Payment is permitted and setting forth the basis upon which the calculations
required by this Section 6.7 were computed, together with a copy of any fairness
opinion or appraisal required by this Agreement.
6.8. Investments.
The
Borrower shall not, and shall not permit any of its Restricted Subsidiaries
to,
directly or indirectly:
(a) make
any
Restricted Investment; or
(b) allow
any
of its Restricted Subsidiaries to become an Unrestricted Subsidiary, unless,
in
each case:
(1) no
Default or Event of Default shall have occurred and be continuing or would
occur
as a consequence thereof; and
(2) the
Borrower would, at the time of, and after giving effect to, such Restricted
Investment or such designation of a Restricted Subsidiary as an Unrestricted
Subsidiary, have been permitted to incur at least $1.00 of additional
Indebtedness pursuant to the Leverage Ratio test set forth in the first
paragraph of Section 6.10.
An
Unrestricted Subsidiary may be redesignated as a Restricted Subsidiary if such
redesignation would not cause a Default.
6.9. Dividend
and Other Payment Restrictions Affecting Subsidiaries.
The
Borrower shall not, directly or indirectly, create or permit to exist or become
effective any encumbrance or restriction on the ability of any of its Restricted
Subsidiaries to:
(a) pay
dividends or make any other distributions on its Capital Stock to the Borrower
or any of its Restricted Subsidiaries, or with respect to any other interest
or
participation in, or measured by, its profits, or pay any Indebtedness owed
to
the Borrower or any of its Restricted Subsidiaries;
(b) make
loans or advances to the Borrower or any of its Restricted Subsidiaries; or
(c) transfer
any of its properties or assets to the Borrower or any of its Restricted
Subsidiaries.
However,
the preceding restrictions shall not apply to encumbrances or restrictions
existing under or by reason of:
(a) Existing
Indebtedness, contracts and other instruments as in effect on the Effective
Date
and any amendments, modifications, restatements, renewals, increases,
supplements, refundings, replacements or refinancings thereof, provided that
such amendments, modifications, restatements, renewals, increases, supplements,
refundings, replacements or refinancings are not materially more restrictive,
taken as a whole, with respect to such dividend and other payment restrictions
than those contained in the most restrictive Existing Indebtedness, contracts
or
other instruments, as in effect on the Effective Date;
(b) this
Agreement and the Loans;
(c) applicable
law;
(d) any
instrument governing Indebtedness or Capital Stock of a Person acquired by
the
Borrower or any of its Restricted Subsidiaries as in effect at the time of
such
acquisition (except to the extent such Indebtedness was incurred in connection
with or in contemplation of such acquisition), which encumbrance or restriction
is not applicable to any Person, or the properties or assets of any Person,
other than the Person, or the property or assets of the Person, so acquired;
provided that, in the case of Indebtedness, such Indebtedness was permitted
by
the terms of this Agreement to be incurred;
(e) customary
non-assignment provisions in leases, franchise agreements and other commercial
agreements entered into in the ordinary course of business;
(f) purchase
money obligations for property acquired in the ordinary course of business
that
impose restrictions on the property so acquired of the nature described in
clause (c) of the preceding paragraph;
(g) any
agreement for the sale or other disposition of Capital Stock or assets of a
Restricted Subsidiary of the Borrower that restricts distributions by such
Restricted Subsidiary pending such sale or other disposition;
(h) Permitted
Refinancing Indebtedness; provided that the restrictions contained in the
agreements governing such Permitted Refinancing Indebtedness are not materially
more restrictive at the time such restrictions become effective, taken as a
whole, than those contained in the agreements governing the Indebtedness being
refinanced;
(i) Liens
securing Indebtedness or other obligations otherwise permitted to be incurred
under Section 6.14 that limit the right of the Borrower or any of its Restricted
Subsidiaries to dispose of the assets subject to such Lien;
(j) provisions
with respect to the disposition or distribution of assets or property in joint
venture agreements and other similar agreements entered into in the ordinary
course of business;
(k) restrictions
on cash or other deposits or net worth imposed by customers under contracts
entered into in the ordinary course of business;
(l) restrictions
contained in the terms of Indebtedness or Preferred Stock permitted to be
incurred under Section 6.10; provided that such restrictions are not materially
more restrictive, taken as a whole, than the terms contained in the most
restrictive, together or individually, of the Credit Facilities and other
Existing Indebtedness as in effect on the Effective Date; and
(m)
restrictions that are not materially more restrictive, taken as a whole, than
customary provisions in comparable financings and that the management of the
Borrower determines, at the time of such financing, will not materially impair
the Borrower's ability to make payments as required hereunder.
6.10. Incurrence
of Indebtedness and Issuance of Preferred Stock.
The
Borrower shall not, and shall not permit any of its Restricted Subsidiaries
to,
directly or indirectly, create, incur, issue, assume, guarantee or otherwise
become directly or indirectly liable, contingently or otherwise, with respect
to
(collectively, “incur”) any Indebtedness (including Acquired Debt) and the
Borrower shall not issue any Disqualified Stock and shall not permit any of
its
Restricted Subsidiaries to issue any shares of Disqualified Stock or Preferred
Stock; provided that the Borrower or any of its Restricted Subsidiaries may
incur Indebtedness, the Borrower may issue Disqualified Stock and, subject
to
the final paragraph of this covenant below, Restricted Subsidiaries of the
Borrower may issue Preferred Stock if the Leverage Ratio of the Borrower and
its
Restricted Subsidiaries would have been not greater than 5.5 to 1.0 determined
on a pro forma basis (including a pro forma application of the net proceeds
therefrom), as if the additional Indebtedness had been incurred, or the
Disqualified Stock or Preferred Stock had been issued, as the case may be,
at
the beginning of the most recently ended fiscal quarter.
So
long
as no Default shall have occurred and be continuing or would be caused thereby,
the first paragraph of this covenant shall not prohibit the incurrence of any
of
the following items of Indebtedness (collectively, “Permitted Debt”):
(1) the
incurrence by the Borrower and its Restricted Subsidiaries of Indebtedness
under
Credit Facilities (including this Agreement but excluding Incremental Loans);
provided
that
the
aggregate principal amount of all Indebtedness of the Borrower and its
Restricted Subsidiaries outstanding under this clause (1) for all Credit
Facilities of the Borrower and its Restricted Subsidiaries after giving effect
to such incurrence does not exceed an amount equal to $9.75 billion less
the
aggregate amount of all Net Proceeds from Asset Sales applied by the Borrower
or
any of its Restricted Subsidiaries to repay any such Indebtedness under a
Credit
Facility pursuant to Section 6.11;
(2) the
incurrence by the Borrower and its Restricted Subsidiaries of Existing
Indebtedness (other than under Credit Facilities);
(3) the
incurrence by the Borrower or any of its Restricted Subsidiaries of Indebtedness
represented by Capital Lease Obligations, mortgage financings or purchase money
obligations, in each case, incurred for the purpose of financing all or any
part
of the purchase price or cost of construction or improvement (including the
cost
of design, development, construction, acquisition, transportation, installation,
improvement and migration) of Productive Assets of the Borrower or any of its
Restricted Subsidiaries, in an aggregate principal amount not to exceed,
together with any related Permitted Refinancing Indebtedness permitted by clause
(5) below, $400 million at any time outstanding;
(4) the
incurrence by the Borrower or any of its Restricted Subsidiaries of Permitted
Refinancing Indebtedness in exchange for, or the net proceeds of which are
used
to refund, refinance or replace, in whole or in part, Indebtedness (other than
intercompany Indebtedness) that was permitted by this Agreement to be incurred
under this clause (5), the first paragraph of this Section 6.10 or clauses
(2),
(3) or (4) of this paragraph;
(5) the
incurrence by the Borrower or any of its Restricted Subsidiaries of intercompany
Indebtedness between or among the Borrower and/or any of its Restricted
Subsidiaries; provided that:
(i) if
the
Borrower is the obligor on such Indebtedness, such Indebtedness must be
expressly subordinated to the prior payment in full in cash of all Obligations
with respect to the Loans; and
(ii) (A)
any
subsequent issuance or transfer of Equity Interests that results in any such
Indebtedness being held by a Person other than the Borrower or a Restricted
Subsidiary thereof and (B) any sale or other transfer of any such Indebtedness
to a Person that is not either the Borrower or a Restricted Subsidiary thereof,
shall be deemed, in each case, to constitute an incurrence of such Indebtedness
that was not permitted by this clause (6);
(6) the
incurrence by the Borrower or any of its Restricted Subsidiaries of Hedging
Obligations that are incurred for the purpose of fixing or hedging interest
rate
risk with respect to any floating rate Indebtedness that is permitted by the
terms of this Agreement to be outstanding;
(7) the
guarantee by the Borrower or any of its Restricted Subsidiaries of Indebtedness
of a Restricted Subsidiary of the Borrower that was permitted to be incurred
by
another provision of this Section 6.10;
(8) [Reserved];
(9) the
incurrence by the Borrower or any of its Restricted Subsidiaries of additional
Indebtedness in an aggregate principal amount at any time outstanding under
this
clause (9) not to exceed $300 million;
(10) the
accretion or amortization of original issue discount and the write-up of
Indebtedness in accordance with purchase accounting; and
(11) Indebtedness
of the Borrower or any of its Restricted Subsidiaries arising from the honoring
by a bank or other financial institution of a check, draft or similar instrument
drawn by the Borrower or such Restricted Subsidiary in the ordinary course
of
business against insufficient funds, so long as such Indebtedness is promptly
repaid.
For
purposes of determining compliance with this Section 6.10, any Indebtedness
under Credit Facilities outstanding on the Effective Date, the New Term Loans
(as defined under the CCO First Lien Credit Agreement) and the Loans (other
than
Incremental Loans) (collectively, “Effective
Date Indebtedness”)
shall
be deemed to have been incurred pursuant to clause (1) above, and, in the event
that an item of proposed Indebtedness (other than any Effective Date
Indebtedness) (a) meets the criteria of more than one of the categories of
Permitted Debt described in clauses (1) through (11) above or (b) is entitled
to
be incurred pursuant to the first paragraph of this Section 6.10, the Borrower
shall be permitted to classify and from time to time to reclassify such item
of
Indebtedness in any manner that complies with this Section 6.10. Once any item
of Indebtedness is so reclassified, it shall no longer be deemed outstanding
under the category of Permitted Debt, where initially incurred or previously
reclassified. For avoidance of doubt, Indebtedness incurred pursuant to a single
agreement, instrument, program, facility or line of credit may be classified
as
Indebtedness arising in part under one of the clauses listed above or under
the
first paragraph of this Section 6.10, and in part under any one or more of
the
clauses listed above, to the extent that such Indebtedness satisfies the
criteria for such classification.
Notwithstanding
the foregoing, in no event shall any Restricted Subsidiary of the Borrower
consummate a Subordinated Debt Financing or a Preferred Stock Financing. A
“Subordinated
Debt Financing”
or
a
“Preferred
Stock Financing,”
as
the
case may be, with respect to any Restricted Subsidiary of the Borrower shall
mean a public offering or private placement (whether pursuant to Rule 144A
under the Securities Act or otherwise) of Subordinated Notes or Preferred Stock
(whether or not such Preferred Stock constitutes Disqualified Stock), as the
case may be, of such Restricted Subsidiary to one or more purchasers (other
than
to one or more Affiliates of the Borrower). “Subordinated
Notes”
with
respect to any Restricted Subsidiary of the Borrower shall mean Indebtedness
of
such Restricted Subsidiary that is contractually subordinated in right of
payment to any other Indebtedness of such Restricted Subsidiary (including
Indebtedness under Credit Facilities), provided
that the
foregoing shall not apply to priority of Liens, including by way of
intercreditor arrangements. The foregoing limitation shall not apply
to:
(a) any
Indebtedness or Preferred Stock of any Person existing at the time such Person
is merged with or into or becomes a Subsidiary of the Borrower; provided
that
such Indebtedness or Preferred Stock was not incurred or issued in connection
with, or in contemplation of, such Person merging with or into, or becoming
a
Subsidiary of, the Borrower, and
(b) any
Indebtedness or Preferred Stock of a Restricted Subsidiary issued in connection
with, and as part of the consideration for, an acquisition, whether by stock
purchase, asset sale, merger or otherwise, in each case involving such
Restricted Subsidiary, which Indebtedness or Preferred Stock is issued to the
seller or sellers of such stock or assets; provided
that
such Restricted Subsidiary is not obligated to register such Indebtedness or
Preferred Stock under the Securities Act or obligated to provide information
pursuant to Rule 144A under the Securities Act.
Notwithstanding
the foregoing, all Indebtedness incurred during any Suspension Period shall
not
be deemed to have been incurred for the purposes of this Section 6.10, but
shall
be included in the calculation of outstanding Indebtedness from and after the
next succeeding Reversion Date.
6.11. Asset
Sales.
The
Borrower shall not, and shall not permit any of its Restricted Subsidiaries
to,
consummate an Asset Sale unless:
(a) the
Borrower or such Restricted Subsidiary receives consideration at the time of
such Asset Sale at least equal to the fair market value of the assets or Equity
Interests issued or sold or otherwise disposed of;
(b) such
fair
market value is determined by the Board of Directors of CCI or the Borrower and
evidenced by a resolution of such Board of Directors set forth in an Officers'
Certificate delivered to the Administrative Agent;
(c) at
least
75% of the consideration therefor received by the Borrower or such Restricted
Subsidiary is in the form of cash, Cash Equivalents or readily marketable
securities.
For
purposes of this Section 6.11, each of the following shall be deemed to be
cash:
(1) any
liabilities (as shown on the Borrower's or such Restricted Subsidiary's most
recent balance sheet) of the Borrower or any Restricted Subsidiary thereof
(other than contingent liabilities and liabilities that are by their terms
subordinated to the Loans) that are assumed by the transferee of any such assets
pursuant to a customary novation agreement that releases the Borrower or such
Restricted Subsidiary from further liability;
(2) any
securities, notes or other obligations received by the Borrower or any such
Restricted Subsidiary from such transferee that are converted by the recipient
thereof into cash, Cash Equivalents or readily marketable securities within
60
days after receipt thereof (to the extent of the cash, Cash Equivalents or
readily marketable securities received in that conversion); and
(3) Productive
Assets.
Within
365 days after the receipt of any Net Proceeds from an Asset Sale, the Borrower
or a Restricted Subsidiary thereof may apply such Net Proceeds at its
option:
(1) to
repay
(a) Indebtedness secured by a Lien on the Collateral that is contractually
senior, in terms of sharing of Collateral, to the Liens securing the Loans
or
(b) Indebtedness of the Restricted Subsidiaries of the Borrower (other
than Indebtedness represented by a guarantee of a Restricted Subsidiary of
the
Borrower of Indebtedness of the Borrower); or
(2) to
invest
in Productive Assets; provided that any such amount of Net Proceeds which the
Borrower or a Restricted Subsidiary thereof has committed to invest in
Productive Assets within 365 days of the applicable Asset Sale may be invested
in Productive Assets within two years of such Asset Sale.
The
amount of any Net Proceeds received from Asset Sales that are not applied or
invested as provided in the preceding paragraph shall constitute “Excess
Proceeds.”
When
the aggregate amount of Excess Proceeds exceeds $25 million, the Borrower shall
make an offer (an “Asset
Sale Offer”)
to all
Lenders and will repay, redeem or offer to purchase all other Indebtedness
of
the Borrower
that
is
of equal priority in right of payment with the Loans containing provisions
requiring repayment, redemption or offers to purchase with the proceeds of
sales
of assets, to purchase, repay or redeem, on a pro rata basis, the maximum
principal amount of Loans and such other Indebtedness of the Borrower of
equal
priority that may be purchased, repaid or redeemed out of the Excess Proceeds,
which amount includes the entire amount of the unapplied Net Proceeds. The
offer
price in any Asset Sale Offer shall be payable in cash and equal to 100%
of the
principal amount of the subject Loans plus accrued and unpaid interest, if
any,
to the date of prepayment. If the aggregate principal amount of Loans whose
holders have elected to require prepayment in connection with such Asset
Sale
Offer and such other Indebtedness of equal priority to be purchased, repaid
or
redeemed out of the Excess Proceeds exceeds the amount of Excess Proceeds,
the
Loans elected for prepayment in connection with such Asset Sale Offer and
such
other Indebtedness
of equal priority shall be purchased, repaid or redeemed on a pro rata basis.
The
Asset
Sale Offer shall remain open for a period of 20 Business Days following its
commencement. No later than five Business Days after the termination of the
Offer Period, the Borrower shall repay the principal amount of Loans required
to
be repaid pursuant to this covenant (the “Offer
Amount”)
or, if
less than the Offer Amount has been elected for repayment, all Loans whose
holders have elected repayment in response to the Asset Sale Offer. Repayments
of any Loans so repaid shall be made in the same manner as interest payments
are
made.
Upon
the
commencement of an Asset Sale Offer the Borrower shall provide a notice to
the
Administrative Agent (which the Administrative Agent shall then promptly make
available to each Lender). The Asset Sale Offer shall be made to all Lenders.
The notice, which shall govern the terms of the Asset Sale Offer, shall state:
(a) that
the
Asset Sale Offer is being made pursuant to this Section 6.11 and the length
of time the Asset Sale Offer shall remain open (the “Offer
Period”);
(b) the
Offer
Amount and the prepayment date; and
(c) that
Lenders shall be required to notify the Administrative Agent prior to the
expiration of the Offer Period in order to have such Lender’s Loans prepaid in
such Asset Sale Offer.
On
the
prepayment date, the Borrower shall:
(a) be
obligated to prepay all Loans whose holders have properly elected repayment
pursuant to the Asset Sale Offer (or such lesser amount as is required to be
prepaid pursuant to such Asset Sale Offer in accordance with the second
preceding paragraph); and
(b) deposit
with the Administrative Agent an amount equal to the Offer Amount (or such
lesser amount as is required to be prepaid pursuant to such Asset Sale Offer
in
accordance with the second preceding paragraph).
The
Administrative Agent shall promptly distribute to each electing Lender the
portion of the Offer Amount (or such lesser amount as is required to be prepaid
pursuant to such Asset Sale Offer in accordance with the second preceding
paragraph) for its respective Loans subject to such election.
If
any
Excess Proceeds remain after consummation of an Asset Sale Offer, then the
Borrower or any Restricted Subsidiary thereof may use such remaining Excess
Proceeds for any purpose not otherwise prohibited by this Agreement. Upon
completion of any Asset Sale Offer, the amount of Excess Proceeds shall be
reset
at zero.
6.12. Sales
and Leasebacks.
The
Borrower shall not, and shall not permit any of its Restricted Subsidiaries
to,
enter into any sale and leaseback transaction; provided that the Borrower and
its Restricted Subsidiaries may enter into a sale and leaseback transaction
if:
(a) the
Borrower or such Restricted Subsidiary could have:
(1) incurred
Indebtedness in an amount equal to the Attributable Debt relating to such sale
and leaseback transaction under the Leverage Ratio test in the first paragraph
of Section 6.10; and
(2) incurred
a Lien to secure such Indebtedness pursuant to Section 6.14 or the definition
of
“Permitted Liens”; and
(b) the
transfer of assets in that sale and leaseback transaction is permitted by,
and
the Borrower or such Restricted Subsidiary applies the proceeds of such
transaction in compliance with, Section 6.11.
The
foregoing restrictions shall not apply to a sale and leaseback transaction
if
the lease is for a period, including renewal rights, not in excess of three
years.
6.13. Transactions
with Affiliates.
(a) The
Borrower shall not, and shall not permit any of its Restricted Subsidiaries
to,
make any payment to, or sell, lease, transfer or otherwise dispose of any of
its
properties or assets to, or purchase any property or assets from, or enter
into
or make or amend any transaction, contract, agreement, understanding, loan,
advance or guarantee with, or for the benefit of, any Affiliate (each, an
“Affiliate Transaction”), unless:
(b) such
Affiliate Transaction is on terms that are not less favorable to the Borrower
or
the relevant Restricted Subsidiary than those that would have been obtained
in a
comparable transaction by the Borrower or such Restricted Subsidiary with a
Person who is not an Affiliate; and
(c) the
Borrower delivers to the Administrative Agent:
(1) with
respect to any Affiliate Transaction or series of related Affiliate Transactions
involving aggregate consideration given or received by the Borrower or any
such
Restricted Subsidiary in excess of $15 million, a resolution of the Board of
Directors of the Borrower or CCI in its capacity as manager of the Borrower
(other than with respect to an Affiliate Transaction involving CCI) set forth
in
an Officers' Certificate certifying that such Affiliate Transaction complies
with this Section 6.13 and that such Affiliate Transaction has been approved
by
a majority of the members of such Board of Directors; and
(2) with
respect to any Affiliate Transaction or series of related Affiliate Transactions
involving aggregate consideration given or received by the Borrower or any
such
Restricted Subsidiary in excess of $50 million, an opinion as to the fairness
to
the Lenders of such Affiliate Transaction from a financial point of view issued
by an accounting, appraisal or investment banking firm of national standing.
The
following items shall not be deemed to be Affiliate Transactions and, therefore,
shall not be subject to the provisions of the prior paragraph:
(a) any
existing employment agreement and employee benefit arrangement (including stock
purchase or option agreements, deferred compensation plans, and retirement,
savings or similar
plans)
entered into by the Borrower or any of its Subsidiaries and any employment
agreement and employee benefit arrangements entered into by the Borrower
or any
of its Restricted Subsidiaries in the ordinary course of
business;
(b) transactions
between or among the Borrower and/or its Restricted Subsidiaries;
(c) payment
of reasonable directors' fees to Persons who are not otherwise Affiliates of
the
Borrower and customary indemnification and insurance arrangements in favor
of
directors, regardless of affiliation with the Borrower or any of its Restricted
Subsidiaries;
(d) payment
of Management Fees;
(e) Restricted
Payments that are permitted by Section 6.7 and Restricted Investments that
are
permitted by Section 6.8;
(f) Permitted
Investments;
(g) transactions
pursuant to agreements existing on the Effective Date, as in effect on the
Effective Date, or as subsequently modified, supplemented, or amended, to the
extent that any such modifications, supplements or amendments complied with
the
applicable provisions of the first paragraph of this Section 6.13;
and
(h) contributions
to the common equity of the Borrower or the issue or sale of Equity Interests
of
the Borrower.
6.14. Liens.
The
Borrower shall not directly or indirectly, create or incur any Lien of any
kind
securing Indebtedness, Attributable Debt or trade payables on any assets of
the
Borrower, whether owned on the Effective Date or thereafter acquired, unless
such Lien is to secure such an obligation on a basis, in terms of sharing of
proceeds of Collateral, that is contractually (i) pari passu to the Liens
securing the Loans and, after giving effect thereto, or after giving effect
to
the incurrence of such Indebtedness, Attributable Debt or trade payables, the
Borrower would have been permitted to incur at least $1.00 of additional
Indebtedness pursuant to the Leverage Ratio test set forth in the first
paragraph of Section 6.10 or (ii) junior to the Liens securing the Loans. The
foregoing restriction shall not apply to Permitted Liens.
6.15. Existence.
Subject
to Section 6.19 below, the Borrower shall do or cause to be done all things
necessary to preserve and keep in full force and effect (a) its limited
liability company existence, and the corporate, partnership or other existence
of each of its Restricted Subsidiaries, in accordance with the respective
organizational documents (as the same may be amended from time to time) of
the
Borrower or any such Restricted Subsidiary and (b) the rights (charter and
statutory), licenses and franchises of the Borrower and its Subsidiaries;
provided, however, that the Borrower shall not be required to preserve any
such
right, license or franchise, or the corporate, partnership or other existence
of
any of its Restricted Subsidiaries, if the Board of Directors of CCI or the
Borrower shall determine that the preservation thereof is no longer desirable
in
the conduct of the business of the Borrower and its Restricted Subsidiaries,
taken as a whole, and that the loss thereof is not likely to result in a
material adverse effect on the Borrower and its Restricted Subsidiaries taken
as
a whole.
6.16. Change
of Control.
If a
Change of Control occurs, each Lender shall have the right to require the
Borrower to repay all or any part (equal to $1,000,000 in principal amount,
or
in either case, an integral multiple thereof) of that Lender's Loans pursuant
to
a “Change
of Control Offer.”
In
the
Change
of
Control Offer, the Borrower shall offer to prepay the Loans in accordance
with
Section 2.8 (a “Change
of Control Payment”).
Within
ten days following any Change of Control, the Borrower shall mail a notice
to
the Administrative Agent (which the Administrative Agent shall then promptly
make available to each Lender) describing the transaction or transactions that
constitute the Change of Control and stating:
(a) the
repayment amount and the repayment date, which shall not exceed 30 Business
Days
from the date such notice is mailed (the “Change
of Control Payment Date”);
and
(b) that
Lenders shall be entitled to withdraw their election if the Administrative
Agent
receives, not later than the close of business on the second Business Day
preceding the Change of Control Payment Date, a notice setting forth the name
of
the Lender and a statement that such Lender is withdrawing his election to
have
the Loans repaid.
On
the
Change of Control Payment Date, the Borrower shall:
(c) be
obligated to repay all Loans whose holders have properly elected repayment
pursuant to the Change of Control Offer; and
(d) deposit
with the Administrative Agent an amount equal to the Change of Control Payment
in respect of all Loans or portions thereof so elected for repayment.
The
Administrative Agent shall promptly distribute to each electing Lender the
Change of Control Payment for its respective Loans subject to such election,
and
the Borrower shall promptly deliver to each Lender upon such Lender's request
a
new Note equal in principal amount to the portion of such Lender's Loans not
elected for repayment, if any.
The
provisions described above that require the Borrower to make a Change of Control
Offer following a Change of Control shall be applicable regardless of whether
or
not any other provisions in this Agreement are applicable.
Notwithstanding
any other provision of this Section 6.16, the Borrower shall not be required
to
make a Change of Control Offer upon a Change of Control if a third party makes
the Change of Control Offer in the manner, at the times and otherwise in
compliance with the requirements set forth in this Agreement applicable to
a
Change of Control Offer made by the Borrower and repays all Loans whose holders
have validly elected repayment and not withdrawn under such Change of Control
Offer.
6.17. Limitations
on Issuances of Guarantees of Indebtedness.
The
Borrower shall not permit any of its Restricted Subsidiaries, directly or
indirectly, to Guarantee or pledge any assets to secure the payment of any
other
Indebtedness of the Borrower except in respect of the Credit Facilities (the
“Guaranteed
Indebtedness”)
unless:
(1)
such
Restricted Subsidiary simultaneously executes and delivers a Guarantee (a
“Subsidiary
Guarantee”)
of the
payment of the Loans by such Restricted Subsidiary: and
(2)
until
one year after all the Loans have been paid in full in cash, such Restricted
Subsidiary waives and will not in any manner whatsoever claim or take the
benefit or advantage of, any rights of reimbursement, indemnity or subrogation
or any other
rights
against the Borrower or any other Restricted Subsidiary thereof as a result
of
any payment by such Restricted Subsidiary under its Subsidiary
Guarantee;
provided
that this paragraph shall not be applicable to any Guarantee of any Restricted
Subsidiary that existed at the time such Person became a Restricted Subsidiary
and was not incurred in connection with, or in contemplation of, such Person
becoming a Restricted Subsidiary.
If
the
Guaranteed Indebtedness is subordinated to the Loans, then the Guarantee of
such
Guaranteed Indebtedness shall be subordinated to the Subsidiary Guarantee at
least to the extent that the Guaranteed Indebtedness is subordinated to the
Loans.
Any
such
Subsidiary Guarantee shall terminate upon the release of such guarantor from
its
guarantee of the Guaranteed Indebtedness.
6.18. [RESERVED].
6.19. Application
of Fall-Away Covenants.
During
any period of time that (a) the Loans have Investment Grade Ratings from
both Rating Agencies and (b) no Default or Event of Default has occurred
and is continuing under this Agreement, the Borrower and its Restricted
Subsidiaries shall not be subject to the provisions of Sections 6.7, 6.8,
6.9, 6.10, 6.11, 6.12, 6.13 and clause (d) of Section 6.20 (collectively,
the “Suspended Covenants”).
If
the
Borrower and its Restricted Subsidiaries are not subject to the Suspended
Covenants for any period of time as a result of the previous sentence and,
subsequently, one, or both of the Rating Agencies withdraws its ratings or
downgrades the ratings assigned to the Loans below the required Investment
Grade
Ratings or a Default or Event of Default occurs and is continuing (each, a
“Reversion
Date”),
then
the Borrower and its Restricted Subsidiaries shall thereafter again be subject
to the Suspended Covenants. The ability of the Borrower and its Restricted
Subsidiaries to make Restricted Payments after the time of such withdrawal,
downgrade, Default or Event of Default shall be calculated in accordance with
the terms of Section 6.7 as though such covenant had been in effect during
the entire period of time from the Effective Date. Any Unrestricted Subsidiary
that was designated as such during any Suspension Period that is a Subsidiary
of
the Borrower on the Reversion Date shall be deemed to be a Restricted Subsidiary
on the corresponding Reversion Date and such designation shall not be deemed
a
Default or Event of Default under this Agreement. For purposes on Section 6.11,
on the Reversion Date, the unutilized Excess Proceeds will be reset to
zero.
6.20. Fundamental
Changes.
The
Borrower may not, directly or indirectly: (1) consolidate or merge with or
into
another Person (whether or not the Borrower is the surviving Person) or (2)
sell, assign, transfer, convey or otherwise dispose of all or substantially
all
of its properties or assets, in one or more related transactions, to another
Person; unless:
(a) either:
(1) the
Borrower is the surviving Person; or
(2) the
Person formed by or surviving any such consolidation or merger (if other than
the Borrower) or to which such sale, assignment, transfer, conveyance or other
disposition shall have been made is a Person organized or existing under the
laws of the United States, any state thereof or the District of Columbia;
(b) the
Person formed by or surviving any such consolidation or merger (if other than
the Borrower) or the Person to which such sale, assignment, transfer, conveyance
or other disposition shall have been made assumes all the obligations of the
Borrower under this Agreement and the other Loan Documents pursuant to
agreements reasonably satisfactory to the Administrative Agent;
(c) immediately
after such transaction no Default or Event of Default exists; and
(d) the
Borrower or the Person formed by or surviving any such consolidation or merger
(if other than the Borrower) will, on the date of such transaction after giving
pro forma effect thereto and any related financing transactions as if the same
had occurred at the beginning of the applicable four-quarter period, (i) be
permitted to incur at least $1.00 of additional Indebtedness pursuant to the
Leverage Ratio test set forth in the first paragraph of Section 6.10 or (ii)
have a Leverage Ratio immediately after giving effect to such consolidation
or
merger no greater than the Leverage Ratio immediately prior to such
consolidation or merger.
In
addition, the Borrower may not, directly or indirectly, lease all or
substantially all of its properties or assets, in one or more related
transactions, to any other Person. The foregoing clause (d) shall not apply
to a
sale, assignment, transfer, conveyance or other disposition of assets between
or
among the Borrower and any of its Wholly Owned Restricted Subsidiaries.
Upon
any
consolidation or merger, or any sale, assignment, transfer, lease, conveyance
or
other disposition of all or substantially all of the assets of the Borrower
in
accordance with the terms above in this Section 6.20, the successor Person
formed by such consolidation or into which the Borrower is merged or to which
such transfer is made shall succeed to and (except in the case of a lease)
be
substituted for, and may exercise every right and power of, the Borrower, as
the
case may be, under this Agreement and the other Loan Documents with the same
effect as if such successor Person had been named therein as the Borrower,
and
(except in the case of a lease) the Borrower shall be released from the
obligations under this Agreement and the other Loan Documents, except with
respect to any obligations that arise from, or are related to, such transaction.
SECTION
7. [RESERVED]
SECTION
8. EVENTS
OF
DEFAULT
8.1. Events
of Default.
Each of
the following is an Event of Default hereunder:
(a) default
for 30 consecutive days in the payment when due of interest on the
Loans;
(b) default
in payment when due of the principal of or premium, if any, on the
Loans;
(c) failure
by the Borrower or any of its Restricted Subsidiaries to comply with the
provisions of Sections 6.16 and 6.20;
(d)
failure
by the Borrower or any of its Restricted Subsidiaries for 30 consecutive days
after written notice thereof has been given to the Borrower by the
Administrative Agent or to the Borrower and the Administrative Agent by Lenders
holding at least 25% of the aggregate principal amount of Loans then outstanding
to comply with any of its other covenants or agreements in this Agreement;
(e) default
under any mortgage, indenture or instrument under which there may be issued
or
by which there may be secured or evidenced any Indebtedness for money borrowed
by the Borrower or
any
of
its Restricted Subsidiaries (or the payment of which is guaranteed by the
Borrower or any of its Restricted Subsidiaries), whether such Indebtedness
or
guarantee now exists or is created after the Effective Date, if that
default:
(1) is
caused
by a failure to pay at final stated maturity the principal amount of such
Indebtedness prior to the expiration of the grace period provided in such
Indebtedness on the date of such default (a “Payment Default”); or
(2) results
in the acceleration of such Indebtedness prior to its express maturity, and,
in
each case, the principal amount of any such Indebtedness, together with the
principal amount of any other such Indebtedness under which there has been
a
Payment Default or the maturity of which has been so accelerated, aggregates
$100 million or more;
(f)
failure
by the Borrower or any of its Restricted Subsidiaries to pay final judgments
which are non-appealable aggregating in excess of $100 million, net of
applicable insurance which has not been denied in writing by the insurer, which
judgments are not paid, discharged or stayed for a period of 60 days;
(g)
the
Borrower or any of its Significant Subsidiaries pursuant to or within the
meaning of Bankruptcy Law:
(1) commences
a voluntary case,
(2) consents
to the entry of an order for relief against it in an involuntary case,
(3) consents
to the appointment of a custodian of it or for all or substantially all of
its
property, or
(4) makes
a
general assignment for the benefit of its creditors; or
(h) a
court
of competent jurisdiction enters an order or decree under any Bankruptcy Law
that:
(1) is
for
relief against the Borrower or any of its Significant Subsidiaries in an
involuntary case;
(2) appoints
a custodian of the Borrower or any of its Significant Subsidiaries or for all
or
substantially all of the property of the Borrower or any of its Significant
Subsidiaries; or
(3) orders
the liquidation of the Borrower or any of its Significant
Subsidiaries;
and
the
order or decree remains unstayed and in effect for 60 consecutive days;
and
(i) so
long
as the Pledge Agreement has not otherwise been terminated in accordance with
its
terms or the Collateral as a whole has not otherwise been released from the
Lien
of the Pledge Agreement in accordance with the terms thereof, (i) any default
by
the Borrower in the performance of its obligations under the Pledge Agreement
(after the lapse of any applicable grace periods) or this Agreement which
adversely affects the enforceability, validity, perfection or priority of the
Administrative Agent's Lien on the Collateral or which adversely affects the
condition or value of the Collateral, taken as a whole, in any material respect,
(ii) repudiation or disaffirmation by the Borrower of
its
obligations under the Pledge Agreement and (iii) the determination in a judicial
proceeding that the Pledge Agreement is unenforceable or invalid against
the
Borrower for any reason.
8.2. Acceleration.
In the
case of an Event of Default arising from clause (g) or (h) of Section 8.1 with
respect to the Borrower, all of the outstanding Loans shall become due and
payable immediately without further action or notice. If any other Event of
Default occurs and is continuing, the Required Lenders may declare all the
Loans
to be due and payable immediately. The Required Lenders by written notice to
the
Administrative Agent may on behalf of all of the Lenders rescind an acceleration
and its consequences if the rescission would not conflict with any judgment
or
decree and if all existing Events of Default have been cured or
waived.
8.3. Other
Remedies.
If an
Event of Default occurs and is continuing, the Administrative Agent may pursue
any available remedy to collect the payment of principal, premium, if any,
and
interest on the Loans or to enforce the performance of any provision of this
Agreement.
A
delay
or omission by the Administrative Agent or any Lender in exercising any right
or
remedy accruing upon a Default or an Event of Default shall not impair the
right
or remedy or constitute a waiver of or acquiescence in a Default or the Event
of
Default. All remedies are cumulative to the extent permitted by
law.
8.4. Waiver
of Existing Defaults.
The
Required Lenders by notice to the Administrative Agent may on behalf of all
Lenders waive an existing Default or Event of Default and its consequences
hereunder, except a continuing Default or Event of Default in the payment of
the
principal of, premium, if any, or interest on, the Loans (including in
connection with an offer to purchase); provided, however, that the Required
Lenders may rescind an acceleration and its consequences, including any related
payment default that resulted from such acceleration. Upon any such waiver,
such
Default shall cease to exist, and any Event of Default arising therefrom shall
be deemed to have been cured for every purpose of this Agreement; but no such
waiver shall extend to any subsequent or other Default or impair any right
consequent thereon.
8.5. Priorities.
If the
Administrative Agent collects any money pursuant to this Section, it shall
pay
out the money in the following order:
First:
to
the Administrative Agent , its agents and attorneys for amounts due under
Sections 9.7 and 10.5, including payment of all compensation, expense and
liabilities incurred, and all advances made, by the Administrative Agent and
the
costs and expenses of collection;
Second:
to Lenders for amounts due and unpaid with respect to the Loans for interest,
ratably, without preference or priority of any kind, according to the amounts
due and payable with respect to the Loans for interest; and
Third:
to
Lenders for amounts due and unpaid with respect to the Loans for principal
and
premium, ratably, without preference or priority of any kind, according to
the
amounts due and payable with respect to the Loans for principal and premium,
respectively; and
Third:
to
the Borrower or to such party as a court of competent jurisdiction shall direct.
The
Administrative Agent may fix a record date and payment date for any payment
to
Lenders pursuant to this Section 8.10.
SECTION
9. THE
AGENTS
9.1. Appointment.
Each
Lender hereby irrevocably designates and appoints the Administrative Agent
as
the agent of such Lender under this Agreement and the other Loan Documents,
and
each such Lender irrevocably authorizes the Administrative Agent, in such
capacity, to take such action on its behalf under the provisions of this
Agreement and the other Loan Documents and to exercise such powers and perform
such duties as are expressly delegated to the Administrative Agent by the terms
of this Agreement and the other Loan Documents, together with such other powers
as are reasonably incidental thereto. Notwithstanding any provision to the
contrary elsewhere in this Agreement, the Administrative Agent shall not have
any duties or responsibilities, except those expressly set forth herein, or
any
fiduciary relationship with any Lender, and no implied covenants, functions,
responsibilities, duties, obligations or liabilities shall be read into this
Agreement or any other Loan Document or otherwise exist against the
Administrative Agent.
9.2. Delegation
of Duties.
The
Administrative Agent may execute any of its duties under this Agreement and
the
other Loan Documents by or through agents or attorneys in fact and shall be
entitled to advice of counsel concerning all matters pertaining to such duties.
The Administrative Agent shall not be responsible for the negligence or
misconduct of any agents or attorneys in fact selected by it with reasonable
care.
9.3. Exculpatory
Provisions.
Neither
any Agent nor any of their respective officers, directors, employees, agents,
attorneys-in-fact or affiliates shall be (i) liable for any action lawfully
taken or omitted to be taken by it or such Person under or in connection with
this Agreement or any other Loan Document (except to the extent that any of
the
foregoing are found by a final and nonappealable decision of a court of
competent jurisdiction to have resulted from its or such Person’s own gross
negligence or willful misconduct) or (ii) responsible in any manner to any
of
the Lenders for any recitals, statements, representations or warranties made
by
the Borrower or any officer thereof contained in this Agreement or any other
Loan Document or in any certificate, report, statement or other document
referred to or provided for in, or received by the Agents under or in connection
with, this Agreement or any other Loan Document or for the value, validity,
effectiveness, genuineness, enforceability or sufficiency of this Agreement
or
any other Loan Document or for any failure of the Borrower to perform its
obligations hereunder or thereunder. The Agents shall not be under any
obligation to any Lender to ascertain or to inquire as to the observance or
performance of any of the agreements contained in, or conditions of, this
Agreement or any other Loan Document, or to inspect the properties, books or
records of the Borrower.
9.4. Reliance
by Administrative Agent.
The
Administrative Agent shall be entitled to rely, and shall be fully protected
in
relying, upon any instrument, writing, resolution, notice, consent, certificate,
affidavit, letter, telecopy, telex or teletype message, statement, order or
other document or conversation believed by it to be genuine and correct and
to
have been signed, sent or made by the proper Person or Persons and upon advice
and statements of legal counsel (including counsel to the Borrower), independent
accountants and other experts selected by the Administrative Agent. The
Administrative Agent may deem and treat the payee of any Note as the owner
thereof for all purposes unless a written notice of assignment, negotiation
or
transfer thereof shall have been filed with the Administrative Agent. The
Administrative Agent shall be fully justified in failing or refusing to take
any
action under this
Agreement
or any other Loan Document unless it shall first receive such advice or
concurrence of the Required Lenders (or, if so specified by this Agreement,
all
Lenders) as it deems appropriate or it shall first be indemnified to its
satisfaction by the Lenders against any and all liability and expense that
may
be incurred by it by reason of taking or continuing to take any such action.
The
Administrative Agent shall in all cases be fully protected in acting, or
in
refraining from acting, under this Agreement and the other Loan Documents
in
accordance with a request of the Required Lenders (or, if so specified by
this
Agreement, all Lenders), and such request and any action taken or failure
to act
pursuant thereto shall be binding upon all the Lenders and all future holders
of
the Loans.
9.5. Notice
of Default.
The
Administrative Agent shall not be deemed to have knowledge or notice of the
occurrence of any Default or Event of Default unless the Administrative Agent
has received notice from a Lender or the Borrower referring to this Agreement,
describing such Default or Event of Default and stating that such notice is
a
“notice of default”. In the event that the Administrative Agent receives such a
notice, the Administrative Agent shall give notice thereof to the Lenders.
The
Administrative Agent shall take such action with respect to such Default or
Event of Default as shall be reasonably directed by the Required Lenders (or,
if
so specified by this Agreement, all Lenders); provided
that
unless and until the Administrative Agent shall have received such directions,
the Administrative Agent may (but shall not be obligated to) take such action,
or refrain from taking such action, with respect to such Default or Event of
Default as it shall deem advisable in the best interests of the
Lenders.
9.6. Non-Reliance
on Agents and Other Lenders.
Each
Lender expressly acknowledges that neither the Agents nor any of their
respective officers, directors, employees, agents, attorneys-in-fact or
affiliates have made any representations or warranties to it and that no act
by
any Agent hereafter taken, including any review of the affairs of the Borrower
or any affiliate of the Borrower, shall be deemed to constitute any
representation or warranty by any Agent to any Lender. Each Lender represents
to
the Agents that it has, independently and without reliance upon any Agent or
any
other Lender, and based on such documents and information as it has deemed
appropriate, made its own appraisal of and investigation into the business,
operations, property, financial and other condition and creditworthiness of
the
Borrower and its affiliates and made its own decision to make its Loans
hereunder and enter into this Agreement. Each Lender also represents that it
will, independently and without reliance upon any Agent or any other Lender,
and
based on such documents and information as it shall deem appropriate at the
time, continue to make its own credit analysis, appraisals and decisions in
taking or not taking action under this Agreement and the other Loan Documents,
and to make such investigation as it deems necessary to inform itself as to
the
business, operations, property, financial and other condition and
creditworthiness of the Borrower and its affiliates. Except for notices, reports
and other documents expressly required to be furnished to the Lenders by the
Administrative Agent hereunder, the Administrative Agent shall not have any
duty
or responsibility to provide any Lender with any credit or other information
concerning the business, operations, property, condition (financial or
otherwise), prospects or creditworthiness of the Borrower or any affiliate
of
the Borrower that may come into the possession of the Administrative Agent
or
any of its officers, directors, employees, agents, attorneys-in-fact or
affiliates.
9.7. Indemnification.
The
Lenders agree to indemnify each Agent in its capacity as such (to the extent
not
reimbursed by the Borrower and without limiting the obligation of the Borrower
to do so), ratably according to their respective Aggregate Exposure Percentages
in effect on the date on which indemnification is sought under this Section
(or,
if indemnification is sought after the date upon which the Loans shall have
been
paid in full, ratably in accordance with such Aggregate Exposure Percentages
immediately prior to such date), from and against any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements of any kind whatsoever that may at any time (whether
before or after the payment of the Loans) be imposed on, incurred by or asserted
against such Agent in any way relating to or arising out of, this Agreement,
any
of the other Loan
Documents
or any documents contemplated by or referred to herein or therein or the
transactions contemplated hereby or thereby or any action taken or omitted
by
such Agent under or in connection with any of the foregoing; provided
that no
Lender shall be liable for the payment of any portion of such liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements that are found by a final and nonappealable decision
of a court of competent jurisdiction to have resulted from such Agent’s gross
negligence or willful misconduct. The agreements in this Section shall survive
the payment of the Loans and all other amounts payable
hereunder.
9.8. Agent
in Its Individual Capacity.
Each
Agent and its affiliates may make loans to, accept deposits from and generally
engage in any kind of business with the Borrower as though such Agent were
not
an Agent. With respect to its Loans made by it, each Agent shall have the same
rights and powers under this Agreement and the other Loan Documents as any
Lender and may exercise the same as though it were not an Agent, and the terms
“Lender” and “Lenders” shall include each Agent in its individual
capacity.
9.9. Successor
Administrative Agent.
The
Administrative Agent may resign as Administrative Agent upon 30 days’ notice to
the Lenders and the Borrower. If the Administrative Agent shall resign as
Administrative Agent under this Agreement and the other Loan Documents, then
the
Required Lenders shall appoint from among the Lenders a successor agent for
the
Lenders, which successor agent shall (unless an Event of Default under Section
8(a), Section 8(b), Section 8(g) or Section 8(h) with respect to the Borrower
shall have occurred and be continuing) be subject to approval by the Borrower
(which approval shall not be unreasonably withheld or delayed), whereupon such
successor agent shall succeed to the rights, powers and duties of the
Administrative Agent, and the term “Administrative Agent” shall mean such
successor agent effective upon such appointment and approval, and the former
Administrative Agent’s rights, powers and duties as Administrative Agent shall
be terminated, without any other or further act or deed on the part of such
former Administrative Agent or any of the parties to this Agreement or any
holders of the Loans. If no successor agent has accepted appointment as
Administrative Agent by the date that is 30 days following a retiring
Administrative Agent’s notice of resignation, the retiring Administrative
Agent’s resignation shall nevertheless thereupon become effective, and the
Lenders shall assume and perform all of the duties of the Administrative Agent
hereunder until such time, if any, as the Required Lenders appoint a successor
agent as provided for above. After any retiring Administrative Agent’s
resignation as Administrative Agent, the provisions of this Section 9 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 and the other Loan
Documents.
9.10. Co-Documentation
Agents and Co-Syndication Agents.
The
Co-Documentation Agents and Co-Syndication Agents shall have no duties or
responsibilities hereunder in their capacity as such.
9.11. Intercreditor
Agreement.
The
provisions of this Agreement and the other Loan Documents are subject to the
Intercreditor Agreement. Each Lender hereby authorizes the Administrative Agent
to enter into the Intercreditor Agreement, any amendment thereof, and any other
intercreditor agreement authorized by Section 10.1 and agrees that such Lender
shall be bound by the terms of the Intercreditor Agreement, any such amendment
and each other intercreditor agreement authorized by Section 10.1 to the same
extent as if such Lender were named as an original party therein.
SECTION
10. MISCELLANEOUS
10.1. Amendments
and Waivers.
Neither
this Agreement, any other Loan Document, nor any terms hereof or thereof may
be
amended, supplemented or modified except in accordance with the provisions
of
this Section 10.1. The Required Lenders and the Borrower may, or, with the
written
consent
of the Required Lenders, the Administrative Agent and the Borrower may, from
time to time, (a) enter into written amendments, supplements or modifications
hereto and to the other Loan Documents for the purpose of adding any provisions
to this Agreement or the other Loan Documents or changing in any manner the
rights of the Lenders or of the Borrower hereunder or thereunder or (b) waive,
on such terms and conditions as the Required Lenders or the Administrative
Agent, as the case may be, may specify in such instrument, any of the
requirements of this Agreement or the other Loan Documents or any Default
or
Event of Default and its consequences; provided,
however,
that no
such waiver and no such amendment, supplement or modification shall (i) forgive
the principal amount or extend the final scheduled date of maturity of any
Loan
or reduce the stated rate of any interest, premium or fee payable hereunder
or
extend the scheduled date of any payment thereof, in each case without the
consent of each Lender directly affected thereby; (ii) eliminate or reduce
any voting rights under this Section 10.1 or reduce any percentage specified
in
the definition of Required Lenders, consent to the assignment or transfer
by the
Borrower of any of its rights and obligations under this Agreement and the
other
Loan Documents, release all or substantially all of the Collateral from their
obligations under the Pledge Agreement (in each case except in connection
with
Dispositions consummated or approved in accordance with the other terms of
this
Agreement), in each case without the written consent of
all
Lenders, modify Section 8.5 or change any provision of this agreement requiring
pro rata treatment
of all
Lenders; or (iii) amend, modify or waive any provision of Section 9 without
the
written consent of the Administrative Agent. Any such waiver and any such
amendment, supplement or modification shall apply equally to each of the
Lenders
and shall be binding upon the Borrower, the Lenders, the Agents and all future
holders of the Loans. In the case of any waiver, the Borrower, the Lenders
and
the Agents shall be restored to their former position and rights hereunder
and
under the other Loan Documents, and any Default or Event of Default waived
shall
be deemed to be cured and not continuing; but no such waiver shall extend
to any
subsequent or other Default or Event of Default, or impair any right consequent
thereon. It is understood that, with respect to any voting required by this
Section 10.1, all members of a particular Specified Intracreditor Group shall
vote as a single unit.
Notwithstanding
the foregoing, without the consent of the Required Lenders, the Administrative
Agent and the Borrower may amend any Loan Document:
(1)
to
cure any ambiguity, defect or inconsistency;
(4)
to
provide for the assumption of the Borrower’s obligations to Lenders in the case
of a merger or consolidation or sale of all or substantially all of the assets
of the Borrower pursuant to Section 6.20;
(5)
to
make any change that would provide any additional rights or benefits to the
Lenders or that does not adversely affect the legal rights under this Agreement
of any Lender;
(6)
as
necessary to comply with applicable law;
(7)
to
release Collateral, as permitted under the terms of this Agreement or the Pledge
Agreement;
(8)
to
add any additional assets as Collateral;
(9)
to
subordinate the Lien of the Loan Documents on the Collateral to the Lien of
the
holders of any other Indebtedness secured by a Lien that is permitted to rank
prior to the Lien securing the Obligations under this Agreement (including
any
Lien under clause (1) of the definition of Permitted Liens) on terms not less
favorable to the Lenders in any material respect than the terms of the
Intercreditor
Agreement (and upon the request of the Borrower, the Administrative Agent
shall
enter into any such agreement and amend or replace the Intercreditor Agreement
for such purpose); or
(10)
to
provide for or confirm the borrowing of Incremental Loans.
Any
designation of additional Indebtedness as “Pari Passu Secured Indebtedness”
pursuant to Section 5.1 of the Pledge Agreement shall not be considered an
amendment, supplement or other modification of such agreement.
10.2. Notices.
All
notices, requests and demands to or upon the respective parties hereto to be
effective shall be in writing (including by telecopy or electronic mail), and,
unless otherwise expressly provided herein, shall be deemed to have been duly
given or made when delivered, or three (3) Business Days after being deposited
in the mail, postage prepaid, or, in the case of telecopy notice, when received,
addressed as follows in the case of the Borrower and the Administrative Agent,
and as set forth in an administrative questionnaire delivered to the
Administrative Agent in the case of the Lenders, or to such other address as
may
be hereafter notified by the respective parties hereto:
|
The
Borrower:
|
Charter
Communications Holdings, LLC
12405
Powerscourt Drive
St.
Louis, Missouri 63131
Attention:
Treasurer
Telecopy:
(314) 965-6492
Telephone:
(314) 543-2474
Email:
eloise.schmitz@chartercom.com
and
Attention:
General Counsel
Telecopy:
(314) 965-8793
Telephone:
(314) 543-2308
Email:
grier.raclin@chartercom.com
with
a copy to:
Gibson,
Dunn & Crutcher LLP
200
Park Avenue
New
York, NY 10166-0193
Attention:
Joerg H. Esdorn
Telecopy:
(212) 351-5276
Telephone:
(212) 351-3851
Email:
jesdorn@gibsondunn.com
|
|
The
Administrative Agent:
|
Bank
of America, N.A.
TX1-419-14-12
Dallas,
Texas 75202-3714
Attention:
Joel Weaver
Telecopy:
(214) 290-9413
Telephone:
(214) 209-2354
Email:
joel.g.weaver@bankofamerica.com
with
a copy to:
Bank
of America, N.A.
Agency
Management
901
Main Street
TX1-149-14-11
Dallas,
Texas 75202-3714
Attention:
Renita Cummings
Telecopy:
(214) 290-8371
Telephone:
(214) 209-4130
Email:
renita.m.cummings@bankofamerica.com
|
| |
|
provided
that (a)
any notice, request or demand to or upon the Administrative Agent or the Lenders
shall not be effective until received and (b) any failure to deliver a notice,
request or demand made to or upon the Borrower to the first and second
addressees identified above under “The Borrower:” shall not affect the
effectiveness thereof.
10.3. No
Waiver; Cumulative Remedies.
No
failure to exercise and no delay in exercising, on the part of any Agent or
any
Lender, any right, remedy, power or privilege hereunder or under the other
Loan
Documents shall operate as a waiver thereof; nor shall any single or partial
exercise of any right, remedy, power or privilege hereunder preclude any other
or further exercise thereof or the exercise of any other right, remedy, power
or
privilege. The rights, remedies, powers and privileges herein provided are
cumulative and not exclusive of any rights, remedies, powers and privileges
provided by law.
10.4. Survival
of Representations and Warranties.
All
representations and warranties made hereunder, in the other Loan Documents
and
in any document, certificate or statement delivered pursuant hereto or in
connection herewith shall survive the execution and delivery of this Agreement
and the making of the Loans hereunder.
10.5. Payment
of Expenses and Taxes.
The
Borrower agrees (a) to pay or reimburse the Administrative Agent for all its
reasonable out-of-pocket costs and expenses incurred in connection with the
development, preparation and execution of, and any amendment, supplement or
modification to, or waiver or forbearance of, this Agreement and the other
Loan
Documents and any other documents prepared in connection herewith or therewith,
and the consummation and administration of the transactions contemplated hereby
and thereby, including the reasonable fees and disbursements of one firm of
counsel to the Administrative Agent and filing and recording fees and expenses,
(b) to pay or reimburse each Lender and each Agent for all its costs and
expenses incurred in connection with the enforcement or preservation of any
rights, privileges, powers or remedies under this Agreement, the other Loan
Documents and any such other documents, including the fees and disbursements
of
one firm of counsel selected by the Administrative Agent, together with any
special or local counsel, to the Administrative Agent and not more than one
other firm of counsel to the Lenders, (c) to pay, indemnify, and hold each
Lender and each Agent harmless from, any and all recording and filing fees
and
any and all
liabilities
with respect to, or resulting from any delay in paying, stamp, excise and
other
taxes, if any, that may be payable or determined to be payable in connection
with the execution and delivery of, or consummation or administration of
any of
the transactions contemplated by, or any amendment, supplement or modification
of, or any waiver or consent under or in respect of, this Agreement, the
other
Loan Documents and any such other documents, (d) if any Event of Default
shall
have occurred, to pay or reimburse all reasonable fees and expenses of a
financial advisor engaged on behalf of, or for the benefit of, the Agents
and
the Lenders accruing from and after the occurrence of such Event of Default,
(e)
to pay, indemnify, and hold each Lender, each Agent, their advisors and
affiliates and their respective officers, directors, trustees, employees,
agents
and controlling persons (each, an “Indemnitee”)
harmless from and against any and all other liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
of any kind or nature whatsoever with respect to the execution, delivery,
enforcement, performance and administration of this Agreement, the other
Loan
Documents and any such other documents, including any of the foregoing relating
to the use of proceeds of the Loans or the violation of, noncompliance with
or
liability under, any Environmental Law applicable to the operations of the
Borrower any of its Subsidiaries or any of the Properties and the reasonable
fees and expenses of legal counsel in connection with claims, actions or
proceedings by any Indemnitee against the Borrower under any Loan Document,
and
(f) to pay, indemnify, and hold each Indemnitee harmless from and against
any
actual or prospective claim, litigation, investigation or proceeding relating
to
any of the matters described in clauses (a) through (d) above, whether based
on
contract, tort or any other theory (including any investigation of, preparation
for, or defense of any pending or threatened claim, investigation, litigation
or
proceeding, and regardless of whether such claim, investigation, litigation
or
proceeding is brought by the Borrower, its directors, shareholders or creditors
or an Indemnitee, whether or not any Indemnitee is a party thereto and whether
or not the Effective Date has occurred) and the reasonable fees and expenses
of
legal counsel in connection with any such claim, litigation, investigation
or
proceeding (all the foregoing in clauses (e) and (f), collectively, the
“Indemnified Liabilities”), provided, that the Borrower shall have no obligation
hereunder to any Indemnitee with respect to Indemnified Liabilities to the
extent such Indemnified Liabilities are found by a final non-appealable decision
of a court of competent jurisdiction to have resulted from the gross negligence
or willful misconduct of such Indemnitee. Without limiting the foregoing,
and to
the extent permitted by applicable law, the Borrower agrees not to assert
and to
cause its Subsidiaries not to assert, and hereby waives and agrees to cause
its
Subsidiaries to so waive, all rights for contribution or any other rights
of
recovery with respect to all claims, demands, penalties, fines, liabilities,
settlements, damages, costs and expenses of whatever kind or nature, under
or
related to Environmental Laws, that any of them might have by statute or
otherwise against any Indemnitee. All amounts due under this Section 10.5
shall
be payable not later than 15 days after written demand therefor. Statements
payable by the Borrower pursuant to this Section 10.5 shall be submitted
to
Eloise E. Schmitz (Telephone No. (314) 543-2474) (Telecopy No. (314) 965-6492),
at the address of the Borrower set forth in Section 10.2, or to such other
Person or address as may be hereafter designated by the Borrower in a written
notice to the Administrative Agent. The agreements in this Section 10.5 shall
survive repayment of the Loans and all other amounts payable
hereunder.
10.6. Successors
and Assigns; Participations and Assignments.
(a) The
provisions of this Agreement shall be binding upon and inure to the benefit
of
the parties hereto and their respective successors and assigns permitted hereby,
except that (i) the Borrower may not assign or otherwise transfer any of its
rights or obligations hereunder without the prior written consent of each Lender
(and any attempted assignment or transfer by the Borrower without such consent
shall be null and void) and (ii) no Lender may assign or otherwise transfer
its
rights or obligations hereunder except in accordance with this
Section.
(b)(i)
Subject to the conditions set forth in paragraph (b)(ii) below, any Lender
may
assign to one or more assignees (each, an “Assignee”)
all or
a portion of its rights and obligations under
this
Agreement (including all or a portion of the Loans at the time owing to it)
with
the prior written consent of:
(A)
the
Borrower (such consent not to be unreasonably withheld or delayed), provided
that no
consent of the Borrower shall be required for an assignment to (I) a Lender,
an
affiliate of a Lender or an Approved Fund (as defined below), or (II) if an
Event of Default described in Section 8(a), (b), (g) or (h) has occurred and
is
continuing, any other Person; and
(B) the
Administrative Agent (such consent not to be unreasonably withheld or delayed),
provided
that no
consent of the Administrative Agent shall be required for an assignment of
all
or any portion of a Loan to a Lender, an Affiliate of a Lender or an Approved
Fund.
(ii)
Assignments shall be subject to the following additional conditions:
(A)
except in the case of an assignment of the entire remaining amount of the
assigning Lender’s Loans, (x) the amount of the Loans of the assigning Lender
subject to each such assignment (as of the trade date specified in the
Assignment and Assumption with respect to such assignment or, if no trade date
is so specified, as of the date such Assignment and Assumption is delivered
to
the Administrative Agent) shall not be less than $1,000,000
and
(y)
the Aggregate Exposure of such assigning Lender shall not fall below $1,000,000,
unless, in each case, each of the Borrower and the Administrative Agent
otherwise consent provided
that (1)
no such consent of the Borrower shall be required if an Event of Default
described in Section 8(a), (b), (g) or (h) has occurred and is continuing and
(2) such amounts shall be aggregated in respect of each Lender and its
affiliates or Approved Funds, if any;
(B)
the
parties to each assignment shall execute and deliver to the Administrative
Agent
an Assignment and Assumption, together with a processing and recordation fee
of
$3,500 provided
that the Administrative Agent may, in its sole discretion, elect to waive such
processing and recordation fee in the case of any assignment;
and
(C) the
Assignee, if it shall not be a Lender, shall deliver to the Administrative
Agent
an administrative questionnaire in which the Assignee designates one or more
credit contacts to whom all syndicate-level information (which may contain
material non-public information about the Borrower and its Affiliates and their
related parties or their respective securities) will be made available and
who
may receive such information in accordance with the assignee’s compliance
procedures and applicable laws, including Federal and state securities
laws.
For
the
purposes of this Section 10.6, “Approved
Fund”
means
any Person (other than a natural person) that is engaged in making, purchasing,
holding or investing in bank loans and similar extensions of credit in the
ordinary course and that is administered or managed by (a) a Lender, (b) an
Affiliate of a Lender or (c) an entity or an Affiliate of an entity that
administers or manages a Lender.
(iii)
Subject to acceptance and recording thereof pursuant to paragraph (b)(iv)
below, from and after the effective date specified in each Assignment and
Assumption the Assignee thereunder shall be a party hereto and, to the extent
of
the interest assigned by such Assignment and Assumption, have the rights and
obligations of a Lender under this Agreement, and the assigning Lender
thereunder shall, to the extent of the interest assigned by such Assignment
and
Assumption, be released from its obliga-tions under this Agreement (and, in
the
case of an Assignment and Assumption covering all of the assigning Lender’s
rights and obligations under this Agreement, such Lender shall cease to be
a
party hereto but shall continue to be entitled to the benefits of
Sections 2.16, 2.17, 2.18 and 10.5). Any assignment or transfer by a Lender
of rights or obligations under this Agreement that does not comply
with
this
Section 10.6 shall be treated for purposes of this Agreement as a sale by such
Lender of a participation in such rights and obligations in accordance with
paragraph (c) of this Section.
(iv)
The
Administrative Agent, acting for this purpose as an agent of the Borrower,
shall
maintain at one of its offices a copy of each Assignment and Assumption
delivered to it and a register for the recordation of the names and addresses
of
the Lenders, and the principal amount of the Loans owing to, each Lender
pursuant to the terms hereof from time to time (the “Register”).
The
entries in the Register shall be conclusive, and the Borrower, the
Administrative Agent and the Lenders may treat each Person whose name is
recorded in the Register pursuant to the terms hereof as a Lender hereunder
for
all purposes of this Agreement, notwithstanding notice to the
contrary.
(v)
Upon
its receipt of a duly completed Assignment and Assumption executed by an
assigning Lender and an Assignee, the Assignee’s completed administrative
questionnaire (unless the Assignee shall already be a Lender hereunder), the
processing and recordation fee referred to in paragraph (b) of this Section
and any written consent to such assignment required by paragraph (b) of this
Section, the Administrative Agent shall accept such Assignment and Assumption
and record the information contained therein in the Register. No assignment
shall be effective for purposes of this Agreement unless it has been recorded
in
the Register as provided in this paragraph.
(c)(i)
Any Lender may, without the consent of the Borrower or the Administrative Agent,
sell participations to one or more banks or other entities (a “Participant”)
in all
or a portion of such Lender’s rights and obligations under this Agreement
(including all or a portion of its Loans owing to it); provided
that
(A) such Lender’s obligations under this Agreement shall remain unchanged,
(B) such Lender shall remain solely responsible to the other parties hereto
for the performance of such obligations and (C) the Borrower, the
Administrative Agent and the other Lenders shall continue to deal solely and
directly with such Lender in connection with such Lender’s rights and
obligations under this Agreement. Any agreement pursuant to which a Lender
sells
such a participation shall provide that such Lender shall retain the sole right
to enforce this Agreement and to approve any amendment, modification or waiver
of any provision of this Agreement; provided
that
such agreement may provide that such Lender will not, without the consent of
the
Participant, agree to any amendment, modification or waiver that (1) requires
the consent of each Lender directly affected thereby pursuant to the proviso
to
the second sentence of Section 10.1 and (2) directly affects such Participant.
Subject to paragraph (c)(ii) of this Section, the Borrower agrees that each
Participant shall be entitled to the benefits of Sections 2.16, 2.17, 2.18
and
10.5 to the same extent as if it were a Lender and had acquired its interest
by
assignment pursuant to paragraph (b) of this Section. To the extent permitted
by
law, each Participant also shall be entitled to the benefits of
Section 10.7(b) as though it were a Lender, provided such Participant shall
be subject to Section 10.7(a) as though it were a Lender.
(ii)
A
Participant shall not be entitled to receive any greater payment under Section
2.16 or 2.17 than the applicable Lender would have been entitled to receive
with
respect to the participation sold to such Participant, unless the sale of the
participation to such Participant is made with the Borrower’s prior written
consent. Any Participant that is a Non-U.S. Lender shall not be entitled to
the
benefits of Section 2.17 unless such Participant complies with Section
2.17(d).
(d) Any
Lender may, without the consent of the Borrower or the Administrative Agent,
at
any time pledge or assign a security interest in all or any portion of its
rights under this Agreement to secure obligations of such Lender, including
any
pledge or assignment to secure obligations to a Federal Reserve Bank, and this
Section shall not apply to any such pledge or assignment of a security interest;
provided
that no
such pledge or assignment of a security interest shall release a Lender from
any
of its obligations hereunder or substitute any such pledgee or Assignee for
such
Lender as a party hereto.
(e)
The
Borrower, at the Borrower’s sole expense, upon receipt of written notice from
the relevant Lender, agrees to issue Notes to any Lender requiring Notes to
facilitate transactions of the type described in paragraph (d)
above.
(f)
Notwithstanding the foregoing, any Conduit Lender may assign any or all of
the
Loans it may have funded hereunder to its designating Lender without the consent
of the Borrower or the Administrative Agent and without regard to the
limitations set forth in Section 10.6(b). The Borrower, each Lender and the
Administrative Agent hereby confirms that it will not institute against a
Conduit Lender or join any other Person in instituting against a Conduit Lender
any bankruptcy, reorganization, arrangement, insolvency or liquidation
proceeding under any state bankruptcy or similar law, for one year and one
day
after the payment in full of the latest maturing commercial paper note issued
by
such Conduit Lender; provided,
however, that each Lender designating any Conduit Lender hereby agrees to
indemnify, save and hold harmless each other party hereto for any loss, cost,
damage or expense arising out of its inability to institute such a proceeding
against such Conduit Lender during such period of forbearance.
10.7. Adjustments;
Set-off.
(a)
Except to the extent that this Agreement expressly provides for payments to
be
allocated to a particular Lender, if any Lender (a “Benefitted
Lender”)
shall
receive any payment of all or part of the amounts owing to it hereunder, or
receive any collateral in respect thereof (whether voluntarily or involuntarily,
by set-off, pursuant to events or proceedings of the nature referred to in
Section 8(e), or otherwise), in a greater proportion than any such payment
to or
collateral received by any other Lender, if any, in respect of the amounts
owing
to such other Lender hereunder, such Benefitted Lender shall purchase for cash
from the other Lenders a participating interest in such portion of the amounts
owing to each such other Lender hereunder, or shall provide such other Lenders
with the benefits of any such collateral, as shall be necessary to cause such
Benefitted Lender to share the excess payment or benefits of such collateral
ratably with each of the Lenders; provided, however, that if all or any portion
of such excess payment or benefits is thereafter recovered from such Benefitted
Lender, such purchase shall be rescinded, and the purchase price and benefits
returned, to the extent of such recovery, but without interest.
(b) In
addition to any rights and remedies of the Lenders provided by law, each Lender
shall have the right, without prior notice to the
Borrower, any such notice being expressly waived by the
Borrower to the extent permitted by applicable law, upon any amount becoming
due
and payable by the
Borrower hereunder (whether at the stated maturity, by acceleration or
otherwise), to set off and appropriate and apply against such amount any and
all
deposits (general or special, time or demand, provisional or final), in any
currency, and any other credits, indebtedness or claims, in any currency, in
each case whether direct or indirect, absolute or contingent, matured or
unmatured, at any time held or owing by such Lender or any branch or agency
thereof to or for the credit or the account of
the
Borrower, as the case may be. Each Lender agrees promptly to notify the Borrower
and the Administrative Agent after any such setoff and application made by
such
Lender, provided
that the
failure to give such notice shall not affect the validity of such setoff and
application.
10.8. Counterparts.
This
Agreement may be executed by one or more of the parties to this Agreement on
any
number of separate counterparts, and all of said counterparts taken together
shall be deemed to constitute one and the same instrument. Delivery of an
executed signature page of this Agreement by facsimile transmission shall be
effective as delivery of a manually executed counterpart hereof. A set of the
copies of this Agreement signed by all the parties shall be lodged with the
Borrower and the Administrative Agent.
10.9. Severability.
Any
provision of this Agreement that is prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof, and any such
prohibition
or unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
10.10. Integration.
This
Agreement and the other Loan Documents represent the agreement of the Borrower,
the Agents and the Lenders with respect to the subject matter hereof, and there
are no promises, undertakings, representations or warranties by any Agent or
any
Lender relative to the subject matter hereof not expressly set forth or referred
to herein or in the other Loan Documents.
10.11. GOVERNING
LAW.
THIS
AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES UNDER THIS AGREEMENT
SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE
LAW
OF THE STATE OF NEW YORK.
10.12. Submission
to Jurisdiction; Waivers.
The
Borrower hereby irrevocably and unconditionally:
(1) submits
for itself and its property in any legal action or proceeding relating to this
Agreement and the other Loan Documents to which it is a party, or for
recognition and enforcement of any judgment in respect thereof, to the
non-exclusive general jurisdiction of the courts of the State of New York,
the
courts of the United States for the Southern District of New York, and
appellate courts from any thereof;
(2) consents
that any such action or proceeding may be brought in such courts and waives
any
objection that it may now or hereafter have to the venue of any such action
or
proceeding in any such court or that such action or proceeding was brought
in an
inconvenient court and agrees not to plead or claim the same;
(3) agrees
that service of process in any such action or proceeding may be effected by
mailing a copy thereof by registered or certified mail (or any substantially
similar form of mail), postage prepaid, to the Borrower at its address set
forth
in Section 10.2 or at such other address of which the Administrative Agent
shall
have been notified pursuant thereto;
(4) agrees
that nothing herein shall affect the right to effect service of process in
any
other manner permitted by law or shall limit the right to sue in any other
jurisdiction; and
(5) waives,
to the maximum extent not prohibited by law, any right it may have to claim
or
recover in any legal action or proceeding referred to in this Section any
special, exemplary, punitive or consequential damages.
10.13. Acknowledgments.
The
Borrower hereby acknowledges that:
(1) it
has
been advised by counsel in the negotiation, execution and delivery of this
Agreement and the other Loan Documents;
(2) neither
any Agent nor any Lender has any fiduciary relationship with or duty to the
Borrower arising out of or in connection with this Agreement or any of the
other
Loan Documents, and the relationship between the Agents and Lenders, on one
hand, and the Borrower, on the other hand, in connection herewith or therewith
is solely that of debtor and creditor; and
(3) no
joint
venture is created hereby or by the other Loan Documents or otherwise exists
by
virtue of the transactions contemplated hereby among the Agents and the Lenders
or among the Borrower and the Agents and the Lenders.
10.14. Release
of Liens.
In the
event that (i) any Collateral is transferred in a transaction permitted by
this
Agreement or (ii) any Collateral is released pursuant to Section 10.1 with
the
consent of the Required Lenders, the Liens on such Collateral securing the
Loans
will be automatically released and terminated. To evidence any such release
and
termination, the Borrower shall be entitled to such releases, terminations
and
other documents and instruments as the Borrower or any third party entitled
to
rely thereon may request, and the Administrative Agent shall, at the Borrower’s,
execute and deliver such requested releases, terminations and other documents
and instruments, with respect to items of Collateral subject to release pursuant
to this clause (b) upon compliance with the conditions precedent that the
Borrower shall have delivered to the Administrative Agent the following:
(i)
a
notice from the Borrower requesting release of Released Collateral and
specifically describing the proposed Released Collateral; and
(ii)
no
Default or Event of Default pursuant to clause (a) or (b) of Section 8.1 hereof
is in effect or continuing on the date thereof or would result therefrom
(including, without limitation, as a result of an Insolvency Proceeding).
In
addition, at such time as the Loans and the other obligations under the Loan
Documents (other than contingent indemnification obligations) shall have been
paid in full, the Collateral shall be released from the Liens created by the
Pledge Agreement, and the Pledge Agreement and all obligations (other than
those
expressly stated to survive such termination) of the Administrative Agent and
the Borrower under the Pledge Agreement shall terminate, all without delivery
of
any instrument or performance of any act by any Person.
10.15. Confidentiality.
Each
Agent and each Lender agrees to keep confidential all non-public information
provided to it by the Borrower pursuant to this Agreement that is designated
by
the Borrower as confidential; provided that nothing herein shall prevent any
Agent or any Lender from disclosing any such information (a) to any Agent,
any
Lender or any affiliate of any Lender or any Approved Fund, (b) to any
Transferee or prospective Transferee that agrees to comply with the provisions
of this Section, (c) to its employees, directors, agents, attorneys, accountants
and other professional advisors or those of any of its affiliates who have
a
need to know, (d) upon the request or demand of any Governmental Authority,
(e)
in response to any order of any court or other Governmental Authority or as
may
otherwise be required pursuant to any Requirement of Law, (f) if requested
or
required to do so in connection with any litigation or similar proceeding,
(g)
that has been publicly disclosed, (h) to any nationally recognized rating
agency that requires access to information about a Lender’s investment portfolio
in connection with ratings issued with respect to such Lender, (i) in connection
with the exercise of any remedy hereunder or under any other Loan Document,
(j)
to
any
creditor or direct or indirect contractual counterparty in swap agreements
or
such creditor or contractual counterparty’s professional advisor (so long as
such contractual counterparty or professional advisor to such contractual
counterparty agrees to be bound by the provisions of this Section 10.15),
(k) to
a Person that is an investor or prospective investor in a Securitization that
agrees that its access to information regarding the Borrower and the Loans
is
solely for purposes of evaluating an investment in such Securitization
(so
long
as such Person agrees to be bound by the provisions of this Section
10.15),
or
(l) to a Person that is a trustee, collateral manager, servicer, noteholder
or secured party in a Securitization in connection with the administration,
servicing and reporting on the assets serving as collateral for such
Securitization (so
long
as such Person agrees to be bound by the provisions of this Section
10.15).
Each
Lender acknowledges that
information furnished to it pursuant to this Agreement or the other Loan
Documents may include material non-public information concerning the Borrower
and its Affiliates and their related parties or their respective securities,
and
confirms that it has developed compliance procedures regarding the use of
material non-public information and that it will handle such material non-public
information in accordance with those procedures and applicable law, including
Federal and state securities laws.
All
information, including requests for waivers and amendments, furnished by the
Borrower or the Administrative Agent pursuant to, or in the course of
administering, this Agreement or the other Loan Documents will be
syndicate-level information, which may contain material non-public information
about the Borrower and its Affiliates and their related parties or their
respective securities. Accordingly, each Lender represents to the Borrower
and
the Administrative Agent that it has identified in its administrative
questionnaire a credit contact who may receive information that may contain
material non-public information in accordance with its compliance procedures
and
applicable law, including Federal and state securities laws.
10.16. WAIVERS
OF JURY TRIAL.
THE BORROWER, THE AGENTS AND THE LENDERS HEREBY IRREVOCABLY AND UNCONDITIONALLY
WAIVE TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS AGREEMENT
OR ANY OTHER LOAN DOCUMENT AND FOR ANY COUNTERCLAIM
THEREIN.
10.17. USA
Patriot Act.
Each
Lender hereby notifies the Borrower that pursuant to the requirements of the
USA
Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001))
(the “Patriot Act”), it is required to obtain, verify and record information
that identifies the Borrower, which information includes the name and address
of
the Borrower and other information that will allow such Lender to identify
the
Borrower in accordance with the Patriot Act.
IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed and delivered by their proper and duly authorized officers as of the
day and year first above written.
CHARTER
COMMUNICATIONS OPERATING, LLC
By:
/s/
Eloise E. Schmitz
Name:
Eloise E. Schmitz
Title:
Senior
Vice President
BANK
OF
AMERICA, N.A., as Administrative Agent and Lender
By:
/s/
William A. Bowen, Jr.
Name:
William A. Bowen, Jr.
Title:
Managing Director