SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
FORM 8-K
Current
Report
Pursuant
to Section 13 or 15(d) of the Securities Exchange Act of 1934
Date
of Report (Date of earliest event reported): March 6,
2007
Charter
Communications, Inc.
(Exact
name of registrant as specified in its charter)
Delaware
(State
or Other Jurisdiction of Incorporation or Organization)
|
000-27927
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43-1857213
|
|
|
(Commission
File Number)
|
(I.R.S.
Employer Identification
Number)
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12405
Powerscourt Drive
St.
Louis, Missouri 63131
(Address
of principal executive offices including zip code)
(314)
965-0555
(Registrant's
telephone number, including area code)
Not
Applicable
(Former
name or former address, if changed since last report)
Check
the
appropriate box below if the Form 8-K filing is intended to simultaneously
satisfy the filing obligation of the registrant under any of the following
provisions:
|
o
|
Written
communications pursuant to Rule 425 under the Securities Act (17
CFR
230.425)
|
|
o
|
Soliciting
material pursuant to Rule 14a-12 under the Exchange Act (17 CFR
240.14a-12)
|
| o |
Pre-commencement
communications pursuant to Rule 14d-2(b) under the Exchange Act
(17 CFR
240.14d-2(b))
|
|
o
|
Pre-commencement
communications pursuant to Rule 13e-4(c) under the Exchange Act
(17 CFR
240.13e-4(c))
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ITEM
1.01. ENTRY INTO A MATERIAL DEFINITIVE AGREEMENT.
Amended
and Restated Credit Agreement of Charter Communications Operating,
LLC
On
March
6, 2007, Charter Communications Operating, LLC (“Charter Operating”), an
indirect subsidiary of Charter Communications, Inc. (“Charter”), entered into an
Amended and Restated Credit Agreement among Charter Operating, CCO
Holdings, LLC
(“CCO Holdings”), the several lenders from time to time that are parties
thereto, JPMorgan Chase Bank, N.A., as administrative agent, and certain
other
agents (the “Charter Operating Credit Agreement”), and it entered into a related
Amended and Restated Guarantee and Collateral Agreement among CCO Holdings,
and
certain of Charter Operating’s subsidiaries in favor of JPMorgan Chase Bank,
N.A., as administrative agent (the “Guarantee and Collateral Agreement”).
The
Charter Operating Credit Agreement amends and restates the Amended
and Restated
Credit Agreement, dated as of March 18, 1999, as amended and restated
as of
April 27, 2004 and as of April 28, 2006, by and among Charter Operating,
CCO
Holdings, the several lenders from time to time parties thereto, and
the agents
named therein (the “Existing Credit Agreement”).
The
Charter Operating Credit Agreement consists of a $1.5 billion senior
secured revolving line of credit, a continuation of the existing $5
billion term
loan facility (the "Existing Term Loan") and a $1.5 billion new term
loan
facility (the "New Term Loan") which will be funded in one or more
drawings on
or prior to April 30, 2007. Borrowings under the Charter Operating
Credit
Agreement bear interest at a variable interest rate based on either
LIBOR or a
base rate, plus in either case, an applicable margin. The applicable
margin for
LIBOR loans under the New Term Loan is 2.00% above LIBOR. The applicable
margin
for LIBOR revolving loans is 2.00% above LIBOR. The revolving line
of credit
commitments terminate on March 6, 2013. The Existing Term Loan and
the New Term
Loan are subject to amortization at 1% of their initial principal amount
per
annum. The remaining principal amount of the New Term Loan will be
due on March
6, 2014.
The
terms
of the Existing Term Loan have been amended effective March 6, 2007.
The
refinancing of the $5 billion Existing Term Loan with new term loans
is
permitted under the Charter Operating Credit Agreement and is expected
to close
April 30, 2007, after which the pricing (LIBOR plus 2.00%) and amortization
profile of such term loan will match the New Term Loan described above.
Until
such time, the Existing Term Loan remains priced at 2.625% above
LIBOR.
The
Charter Operating Credit Agreement is guaranteed by CCO Holdings and
the
subsidiaries of Charter Operating that guarantee the Existing Credit
Agreement,
and is secured by the same collateral that secures the Existing Credit
Agreement, including (i) the assets of Charter Operating and its subsidiaries
(other than assets of the non-guarantor subsidiaries), to the extent
such lien
can be perfected under the Uniform Commercial Code by the filing of
a financing
statement, and (ii) a pledge by CCO Holdings of the equity interests
owned by it
in Charter Operating or any of its subsidiaries, as well as intercompany
obligations owing to it by any of such entities, in each case as set
forth in
the Guarantee and Collateral Agreement, and (iii) a pledge by Charter
Operating
and its subsidiaries of equity interests or intercompany notes held
by them.
The
Charter Operating Credit Agreement contains financial covenants requiring
Charter Operating to maintain a quarterly consolidated leverage ratio
not to
exceed 5 to 1 and a first lien leverage ratio not to exceed 4 to 1.
The
agreement also contains a number of restrictions on Charter Operating’s
business, including, but not limited to, restrictions on Charter Operating
and
its subsidiaries’ (and in certain instances, CCO Holdings’s) ability to incur
indebtedness; grant liens on assets; merge, consolidate, or sell assets;
pay
dividends or make other restricted payments; make investments; prepay
or modify
certain indebtedness or management fees; engage in transactions with
affiliates;
enter into sale-leaseback transactions; or engage in other business).
The
Charter Operating Credit Agreement also contains a number of affirmative
covenants and events of default, including a cross default to other
debt of CCO
Holdings, Charter Operating, or subsidiaries of Charter Operating in
an
aggregate amount equal to more than $100 million and the occurrence
of a change
of control. Failure to comply with these covenants, or the occurrence
of any
other event of default, could result in acceleration of Charter Operating’s debt
and other financial obligations under the Charter Operating Credit
Agreement.
The
foregoing does not constitute a complete summary of the terms of the
Charter
Operating Credit Agreement and the Guarantee and Collateral Agreement.
The
descriptions of the terms of the Charter Operating Credit Agreement
and the
Guarantee and Collateral Agreement are qualified in their entirety
by reference
to such agreements.
Credit
Agreement of CCO Holdings, LLC
On
March
6, 2007, CCO Holdings, an indirect subsidiary of Charter, entered into
a credit
agreement among CCO Holdings, the several lenders from time to time
that are
parties thereto, Bank of America, N.A., as administrative agent, and
certain
other agents (the “CCO Holdings Credit Agreement”), and a related Pledge
Agreement made by CCO Holdings in favor of Bank of America, N.A., as
administrative agent (the “Pledge Agreement”).
The
CCO
Holdings Credit Agreement consists of a $350 million term loan facility
(the
“Term Facility”). The term loan matures on September 6, 2014 (the “Maturity
Date”). The CCO Holdings Credit Agreement also provides for additional
incremental term loans (the “Incremental Loans”) maturing on the dates set forth
in the notices establishing such term loans, but no earlier than the
Maturity
Date.
Borrowings
under the CCO Holdings Credit Agreement bear interest at a variable
interest
rate based on either LIBOR or a base rate plus, in either case, an
applicable
margin. The applicable margin for LIBOR term loans, other than Incremental
Loans, is 2.50% above LIBOR. The applicable margin for base rate loans,
other
than Incremental Loans, is 1.5%. The applicable margin with respect
to
Incremental Loans is as to be agreed upon by CCO Holdings and the lenders
when
the Incremental Loans are established.
The
CCO
Holdings Credit Agreement is secured by the equity interests of Charter
Operating, and all proceeds thereof.
The
CCO
Holdings Credit Agreement contains a number of restrictions on CCO
Holdings,
including, but not limited to, restrictions on the ability of CCO Holdings’ and
its restricted subsidiaries to pay dividends or make other restricted
payments;
grant liens on assets; merge, consolidate, or sell assets; incur indebtedness;
make investments; engage in transactions with affiliates; and issue
subsidiary
guarantees of indebtedness. The CCO Holdings Credit Agreement also
contains a
number of affirmative covenants and events of default, including a
cross payment
default or cross acceleration to other debt of CCO Holdings or of certain
of its
subsidiaries in an aggregate principal amount equal to $100 million
or more.
Failure to comply with these covenants, or the occurrence of any other
event of
default, could result in acceleration of CCO Holdings’ debt and other financial
obligations under the CCO Holdings Credit Agreement.
The
foregoing does not constitute a complete summary of the terms of the
CCO
Holdings Credit Agreement and the Pledge Agreement. The descriptions
of the
terms of the CCO Holdings Credit Agreement and the Pledge Agreement
are
qualified in their entirety by reference to such agreements.
With
the
completion of these transactions, Charter expects that cash on hand,
cash flows
from operating activities, and the amounts available under our credit
facilities
will be adequate to meet our and our subsidiaries’ cash needs through
2008. We believe that cash flows from operating activities and amounts
available under our credit facilities may not be sufficient to fund
our
operations and satisfy our and our subsidiaries’ interest and principal
repayment obligations in 2009 and will not be sufficient to fund such
needs in
2010 and beyond.
ITEM
2.03 CREATION OF A DIRECT FINANCIAL OBLIGATION OR AN OBLIGATION OF
REGISTRANT.
The
information in Item 1.01 of this Form 8-K is hereby incorporated by
reference to
this Item 2.03.
ITEM
2.04 TRIGGERING EVENTS THAT ACCELERATE OR INCREASE A DIRECT FINANCIAL
OBLIGATION
OR AN OBLIGATION UNDER AN OFF-BALANCE SHEET ARRANGEMENT.
Redemption
of Charter Communications Holdings, LLC and Charter Communications
Holdings
Capital Corporation 8.625% Senior Notes due 2009
On
March
6, 2007, Charter Communications Holdings, LLC and Charter Communications
Holdings Capital Corp. (together, the “Charter Holdings Issuers”), both
indirect subsidiaries of Charter, called for redemption all of the
$187,295,500
outstanding principal amount of their 8.625% Senior Notes due 2009
(CUSIP number
16117PAE0) (the “2009 Notes”). The 2009 Notes were issued pursuant to an
indenture, dated as of March 17, 1999 (the “Charter Holdings Indenture”),
between
the Charter Holdings Issuers and The Bank of New York Trust Company,
N.A., as
successor trustee. In accordance with the terms of the 2009 Notes and
the
Charter Holdings Indenture, the redemption price is equal to the principal
amount of the 2009 Notes, plus accrued and unpaid interest to the date
of
redemption, April 5, 2007. Upon mailing the notice of redemption in
accordance
with the Charter Holdings Indenture, the 2009 Notes become irrevocably
due and
payable on the redemption date at the redemption price. A press release
announcing the redemption is attached hereto as Exhibit 99.1.
Redemption
of CCO Holdings, LLC and CCO Holdings Capital Corp. Senior Floating
Rate Notes
due 2010
On
March
6, 2007, CCO Holdings and CCO Holdings Capital Corp. (together, “CCO Holdings
Issuers”), both indirect subsidiaries of Charter, called for redemption all
of
the $550,000,000 outstanding principal amount of their Senior Floating
Rate
Notes due 2010 (CUSIP number 1248EP AE 3) (the “2010 Notes”). The 2010 Notes
were issued pursuant to an indenture, dated as of December 15, 2004
(the “CCO
Holdings Indenture”), between the CCO Holdings Issuers and Wilmington Trust
Company, N.A., as successor trustee. In accordance with the terms of
the 2010
Notes and the CCO Holdings Indenture, the redemption price is equal
to 102% of
the principal amount of the 2010 Notes, plus accrued and unpaid interest
to the
date of redemption, April 6, 2007. Upon mailing the notice of redemption
in
accordance with the CCO Holdings Indenture, the 2010 Notes become irrevocably
due and payable on the redemption date at the redemption price. A press
release
announcing the redemption is attached hereto as Exhibit 99.1.
ITEM
8.01 OTHER EVENTS.
Charter
Holdings commenced a cash tender offer (the “Tender Offer”) for certain of its
outstanding senior notes (the “Notes”). Charter Holdings is offering to purchase
an amount of its outstanding Notes such that the amount Charter Holdings
would
be required to pay for the purchase of the Notes in total (including
accrued and
unpaid interest) in the Tender Offer shall not exceed $100 million.
Holders who
tender their notes prior to 5:00 p.m., Eastern Time, on March 19, 2007,
unless
this early tender period is extended or earlier terminated by Charter
Holdings,
will qualify for the payment of a premium in addition to the consideration
being
paid per note. The Tender Offer will expire at 5:00 PM Eastern Time,
on Tuesday,
April 3, 2007, unless extended or earlier terminated. A press release
announcing
the Tender Offer is attached hereto as Exhibit 99.2.
ITEM
9.01. FINANCIAL STATEMENTS AND EXHIBITS.
|
Exhibit
Number
|
|
Description
|
|
|
|
|
|
10.1
|
|
Amended
and Restated Credit Agreement, dated as of March 6, 2007, among
Charter
Communications Operating, LLC, CCO Holdings, LLC, the lenders
from
time to time parties thereto and JPMorgan Chase Bank, N.A., as
administrative agent.*
|
| 10.2 | Amended and Restated Guarantee and Collateral Agreement made by CCO Holdings, LLC, Charter Communications Operating, LLC and certain of its subsidiaries in favor of JPMorgan Chase Bank, N.A. ,as administrative agent, dated as of March 18, 1999, as amended and restated as of March 6, 2007* | |
| 10.3 | Credit Agreement, dated as of March 6, 2007, among CCO Holdings, LLC, the lenders from time to time parties thereto and Bank of America, N.A., as administrative agent.* | |
| 10.4 | Pledge Agreement made by CCO Holdings, LLC in favor of Bank of America, N.A., as Collateral Agent, dated as of March 6, 2007* | |
| 99.1 | Press Release dated as of March 6, 2007.* | |
| 99.2 | Press Release dated as of March 6, 2007.* |
*
filed
herewith
SIGNATURES
Pursuant
to the requirements of the Securities Exchange Act of 1934, Charter
Communications, Inc. has duly caused this Current Report to be signed on its
behalf by the undersigned hereunto duly authorized.
CHARTER
COMMUNICATIONS, INC.
Registrant
Dated:
March 9, 2007
|
|
By:/s/
Kevin D. Howard
Name:
Kevin D. Howard
Title:
Vice
President and Chief Accounting
Officer
|
EXHIBIT
INDEX
|
Exhibit
Number
|
|
Description
|
|
|
|
|
|
10.1
|
|
Amended
and Restated Credit Agreement, dated as of March 6,
2007, among Charter
Communications Operating, LLC, CCO Holdings, LLC, the
lenders from
time to time parties thereto and JPMorgan Chase Bank, N.A.,
as
administrative agent.*
|
| 10.2 | Amended and Restated Guarantee and Collateral Agreement made by CCO Holdings, LLC, Charter Communications Operating, LLC and certain of its subsidiaries in favor of JPMorgan Chase Bank, N.A. ,as administrative agent, dated as of March 18, 1999, as amended and restated as of March 6, 2007* | |
| 10.3 | Credit Agreement, dated as of March 6, 2007, among CCO Holdings, LLC, the lenders from time to time parties thereto and Bank of America, N.A., as administrative agent.* | |
| 10.4 | Pledge Agreement made by CCO Holdings, LLC in favor of Bank of America, N.A., as Collateral Agent, dated as of March 6, 2007* | |
| 99.1 | Press Release dated as of March 6, 2007.* | |
| 99.2 | Press Release dated as of March 6, 2007.* |
Exhibit
10.1
$8,000,000,000
AMENDED
AND RESTATED CREDIT AGREEMENT
CHARTER
COMMUNICATIONS OPERATING, LLC,
as
Borrower,
CCO
HOLDINGS, LLC,
J.
P.
MORGAN SECURITIES INC. and BANC OF AMERICA SECURITIES LLC,
as
Revolving Facility Co-Lead Arrangers
J.
P.
MORGAN SECURITIES INC. and CITIGROUP GLOBAL MARKETS INC.,
as
Term
Facility Co-Lead Arrangers
J.P.
MORGAN SECURITIES INC., BANC OF AMERICA SECURITIES LLC,
CITIGROUP
GLOBAL MARKETS INC., DEUTSCHE BANK SECURITIES INC.,
GE
CAPITAL MARKETS, INC. AND CREDIT SUISSE SECURITIES (USA) LLC,
as
Revolving Facility Joint Bookrunners
J.P.
MORGAN SECURITIES INC., BANC OF AMERICA SECURITIES LLC,
CITIGROUP
GLOBAL MARKETS INC., CREDIT SUISSE SECURITIES (USA) LLC,
GE
CAPITAL MARKETS, INC. AND DEUTSCHE BANK SECURITIES INC.,
as
Term
Facility Joint Bookrunners
JPMORGAN
CHASE BANK, N.A.
as
Administrative Agent
JPMORGAN
CHASE BANK, N.A. and
BANK
OF
AMERICA, N.A.,
as
Syndication Agents
CITICORP
NORTH AMERICA, INC.,
DEUTSCHE BANK SECURITIES INC,
GENERAL
ELECTRIC CAPITAL CORPORATION AND
CREDIT
SUISSE SECURITIES (USA) LLC,
as
Revolving Facility Co-Documentation Agents
and
CITICORP
NORTH AMERICA, INC.,
CREDIT
SUISSE SECURITIES (USA) LLC,
GENERAL
ELECTRIC CAPITAL CORPORATION AND DEUTSCHE BANK SECURITIES INC.,
as
Term
Facility Co-Documentation Agents
Dated
as
of March 18, 1999,
as
Amended and Restated as of March 6, 2007
Page
| SECTION I. DEFINITIONS |
1
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| Section 1.1. | Defined Terms |
1
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| Section 1.2. |
Other
Definitional Provisions; Pro Forma Calculations
|
24
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| SECTION 2. AMOUNT AND TERMS OF COMMITMENTS |
25
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||
| Section 2.1. |
Commitments
|
25
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| Section 2.2. |
Procedure
for Borrowing
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26
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| Section 2.3. |
Repayment
of Loans
|
27
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| Section 2.4. | Swingline Commitment |
27
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| Section 2.5. | Procedure for Swingline Borrowing; Refunding of Swingline Loans |
28
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| Section 2.6. | Commitment Fees, Etc. |
29
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| Section 2.7. | Termination or Reduction of Commitments |
29
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| Section 2.8. | Optional Prepayments |
29
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| Section 2.9. | Mandatory Prepayments |
30
|
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| Section 2.10. | Conversion and Continuation Options |
30
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|
| Section 2.11. | Limitations on Eurodollar Tranches |
31
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| Section 2.12. | Interest Rates and Payment Dates |
31
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| Section 2.13. | Computation of Interest and Fees |
31
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| Section 2.14. | Inability to Determine Interest Rate |
32
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| Section 2.15. | Pro Rata Treatment and Payments |
32
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| Section 2.16. | Requirements of Law |
33
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| Section 2.17. | Taxes |
34
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| Section 2.18. | Indemnity |
36
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| Section 2.19. | Change of Lending Office |
36
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| Section 2.20. | Replacement of Lenders |
37
|
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| SECTION 3. LETTERS OF CREDIT |
37
|
||
| Section 3.1. |
L/C
Commitment
|
37
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| Section 3.2. |
Procedure
for Issuance of Letter of Credit
|
38
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| Section 3.3. | Fees and Other Charges |
38
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| Section 3.4. | L/C Participations |
38
|
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| Section 3.5. | Reimbursement Obligation of the Borrower |
39
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| Section 3.6. | Obligations Absolute |
40
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| Section 3.7. | Letter of Credit Payments |
40
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| Section 3.8. | Applications |
40
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| SECTION 4. REPRESENTATIONS AND WARRANTIES |
40
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||
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|||
| Section 4.1. |
Financial
Condition
|
40
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| Section 4.2. |
No
Change
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41
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| Section 4.3. | Existence; Compliance with Law |
41
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| Section 4.4. | Power; Authorization; Enforceable Obligations |
41
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| Section 4.5. | No Legal Bar |
41
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| Section 4.6. | Litigation |
41
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| Section 4.7. | No Default |
41
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| Section 4.8. |
Ownership
of Property; Liens
|
42
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| Section 4.9. |
Intellectual
Property
|
42
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| Section 4.10. | Taxes |
42
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| Section 4.11. | Federal Regulations |
42
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Page
| Section 4.12. |
Labor
Matters
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42
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| Section 4.13. | ERISA |
42
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| Section 4.14. | Investment Company Act; Other Regulations |
43
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| Section 4.15. | Subsidiaries |
43
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| Section 4.16. | Use of Proceeds |
43
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| Section 4.17. | Environmental Matters |
43
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| Section 4.18. |
Certain
Cable Television Matters
|
44
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| Section 4.19. |
Accuracy
of Information, Etc.
|
44
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| Section 4.20. | Security Interests |
45
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| Section 4.21. | Solvency |
45
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| Section 4.22. | Certain Tax Matters |
45
|
| SECTION 5. CONDITIONS PRECEDENT |
45
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||
| Section 5.1. |
Conditions
to Restatement Effective Date
|
45
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| Section 5.2. |
Conditions
to Each
Extension of Credit
|
46
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| SECTION 6. AFFIRMATIVE COVENANTS |
47
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||
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|||
| Section 6.1. |
Financial
Satements
|
47
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| Section 6.2. |
Certificates;
Other Information
|
47
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| Section 6.3. | Payment of Obligations |
48
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| Section 6.4. | Maintenance of Existence; Compliance |
48
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| Section 6.5. | Maintenance of Property; Insurance |
48
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| Section 6.6 | Inspection of Property; Books and Records; Discussions |
49
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| Section 6.7. | Notices |
49
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| Section 6.8. |
Environmental
Laws
|
49
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| Section 6.9. |
Additional
Collateral
|
50
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| Section 6.10. | Regulated Subsidiaries |
50
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| SECTION 7. NEGATIVE COVENANTS |
50
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| Section 7.1. |
Financial
Condition Covenants
|
51
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| Section 7.2. |
Indebtedness
|
51
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| Section 7.3. | Liens |
52
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| Section 7.4. | Fundamental Changes |
54
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| Section 7.5. | Disposition of Property |
55
|
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| Section 7.6. | Restricted Payments |
56
|
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| Section 7.7. | Investments |
58
|
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| Section 7.8. | Certain Payments and Modifications Relating to Indebtedness and Management Fees |
60
|
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| Section 7.9. | Transactions with Affiliates |
61
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| Section 7.10. | Sales and Leasebacks |
61
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|
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|
Section
7.11.
|
Changes in Fiscal Periods |
61
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| Section 7.12. | Negative Pledge Clauses |
61
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| Section 7.13. | Clauses Restricting Subsidiary Distributions |
62
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| Section 7.14. | Lines of Business; Holding Company Status |
63
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| Section 7.15. | Investments in the Borrower |
63
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| SECTION 8. EVENTS OF DEFAULT |
63
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||
| SECTION 9. THE AGENTS |
68
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||
| Section 9.1 | Appointment |
68
|
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| Section 9.2. |
Delegation
of Duties
|
68
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| Section 9.3. | Exculpatory Provisions |
68
|
Page
| Section 9.4. | Reliance by Administrative Agent |
68
|
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| Section 9.5. | Notice of Default |
69
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| Section 9.6. | Non-Reliance on Agents and Other Lenders |
69
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| Section 9.7. | Indemnification |
70
|
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| Section 9.8. | Agent in Its Individual Capacity |
70
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| Section 9.9. | Successor Administrative Agent |
70
|
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| Section 9.10. | Co-Documentation Agents and Syndication Agents |
70
|
| SECTION 10. MISCELLANEOUS |
71
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||
| Section 10.1 |
Amendments
and Waivers
|
71
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| Section 10.2 |
Notices
|
72
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| Section 10.3 |
No
Waiver; Cumulative Remedies
|
73
|
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| Section 10.4 | Survival of Representations and Warranties |
73
|
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| Section 10.5 | Payment of Expenses and Taxes |
73
|
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| Section 10.6 | Successors and Assigns; Participations and Assignments |
74
|
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| Section 10.7 |
Adjustments;
Set-off
|
77
|
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| Section 10.8 | Counterparts |
78
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| Section 10.9 | Severability |
78
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| Section 10.10 | Integration |
78
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| Section 10.11 | GOVERNING LAW |
78
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| Section 10.12 | Submission to Jurisdiction; Waivers |
78
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| Section 10.13 | Acknowledgments |
79
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| Section 10.14 | Release of Guarantees and Liens |
79
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| Section 10.15 | Confidentiality |
79
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| Section 10.16 | WAIVERS OF JURY TRIAL |
80
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| Section 10.17 | USA Patriot Act |
80
|
|
SCHEDULES:
1.1 Revolving
Commitments and New Term Commitments on Restatement Effective Date
3.1 Existing
Letters of Credit
4.15 Subsidiaries
4.20(a)
UCC
Filing Jurisdictions
7.5(i) Permitted
Dispositions
EXHIBITS:
A Form
of
Guarantee and Collateral Agreement
B Form
of
Compliance Certificate
C Form
of
Closing Certificate
D Form
of
Addendum
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 Form
of
Specified Subordinated Note
I Form
of
Notice of Borrowing
J Form
of
Release
AMENDED
AND RESTATED CREDIT AGREEMENT, dated as of March 18, 1999, as amended and
restated as of March 6, 2007, among CHARTER COMMUNICATIONS OPERATING, LLC,
a
Delaware limited liability company (the “Borrower”),
CCO
HOLDINGS, LLC, a Delaware limited liability company (“Holdings”),
the
several banks and other financial institutions or entities from time to time
parties to this Agreement (the “Lenders”),
JPMORGAN CHASE BANK, N.A., as Administrative Agent (in such capacity, together
with any successor, the “Administrative
Agent”),
JPMORGAN CHASE BANK, N.A. and BANK OF AMERICA, N.A., as syndication agents
(in
such capacity, the “Syndication
Agents”),
CITICORP NORTH AMERICA, INC., DEUTSCHE BANK SECURITIES INC, GENERAL ELECTRIC
CAPITAL CORPORATION and CREDIT SUISSE SECURITIES (USA) LLC, as revolving
facility co-documentation agents, and CITICORP NORTH AMERICA, INC., CREDIT
SUISSE SECURITIES (USA) LLC, GENERAL ELECTRIC CAPITAL CORPORATION and DEUTSCHE
BANK SECURITIES INC., as term facility co-documentation agents (all such
co-documentation agents, in such capacity, the “Co-Documentation
Agents”).
W
I T
N E S S E T H
:
WHEREAS,
the Borrower entered into the Amended and Restated Credit Agreement, dated
as of
March 18, 1999, as amended and restated as of April 28, 2006 (the “Existing
Credit Agreement”),
among
the Borrower, Holdings, the several banks and other financial institutions
or
entities party thereto and the agents named therein; and
WHEREAS,
the parties hereto have agreed to amend and restate the Existing Credit
Agreement as provided in this Agreement, which Agreement shall become effective
upon the satisfaction of the conditions precedent set forth in Section 5.1
hereof; and
WHEREAS,
it is the intent of the parties hereto that this Agreement not constitute a
novation of the obligations and liabilities existing under the Existing Credit
Agreement or evidence repayment of any of such obligations and liabilities
and
that this Agreement amend and restate in its entirety the Existing Credit
Agreement and re-evidence the obligations of the Borrower outstanding
thereunder;
NOW,
THEREFORE, in consideration of the above premises, the parties hereto hereby
agree that on the Restatement Effective Date (as defined below), the Existing
Credit Agreement shall be amended and restated in its entirety 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.
“Addendum”:
an
instrument, substantially in the form of Exhibit D, by which a Lender
consents to the amendment and restatement of the Existing Credit Agreement
pursuant hereto or becomes a party to this Agreement as of the Restatement
Effective Date.
“Adjustment
Date”:
as
defined in the definition of “Applicable Pricing Grid”.
“Administrative
Agent”:
as
defined in the preamble hereto.
“Affiliate”:
as to
any Person, any other Person that, directly or indirectly, is in control of,
is
controlled by, or is under common control with, such Person. For purposes of
this definition, “control” of a Person means the power, directly or indirectly,
either to (a) vote 10% or more of the securities having ordinary voting power
for the election of directors (or persons performing similar functions) of
such
Person or (b) direct or cause the direction of the management and policies
of
such Person, whether by contract or otherwise.
“Agents”:
the
collective reference to the Co-Documentation Agents, the Syndication Agents
and
the Administrative Agent.
“Aggregate
Exposure”:
with
respect to any Lender at any time, an amount equal to the sum of (a) the
aggregate then unpaid principal amount of such Lender’s Term Loans, (b) the
amount of such Lender’s New Term Commitment then in effect and (c) the amount of
such Lender’s Revolving Commitment then in effect or, if the Revolving
Commitments have been terminated, the amount of such Lender’s Revolving
Extensions of Credit then outstanding.
“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
Amended and Restated Credit Agreement, as further amended, supplemented or
otherwise modified from time to time.
“Allocated
Proceeds”:
as
defined in Section 2.9(a).
“Annualized
Asset Cash Flow Amount”:
with
respect to any Disposition of assets, an amount equal to the portion of
Consolidated Operating Cash Flow for the most recent Asset Disposition Test
Period ending prior to the date of such Disposition which was contributed by
such assets multiplied
by
four.
“Annualized
Operating Cash Flow”:
for
any fiscal quarter, an amount equal to Consolidated Operating Cash Flow for
such
period multiplied
by
four.
“Annualized
Pro Forma Operating Cash Flow”:
an
amount, determined on any Disposition Date or Exchange Date in connection with
any proposed Disposition or Exchange pursuant to Section 7.5(f) or (g), equal
to
Consolidated Operating Cash Flow for the most recent Asset Disposition Test
Period multiplied
by
four,
calculated in the manner contemplated by Section 1.2(e) but excluding the effect
of such Disposition or Exchange.
“Applicable
Margin”:
(a)
with respect to Revolving Loans, Swingline Loans and Term Loans (other than
Incremental Term Loans), the rate per annum set forth under the relevant column
heading below:
|
ABR
Loans
|
Eurodollar
Loans
|
||
|
Revolving
Loans
|
1.00%
|
2.00%
|
|
|
Swingline
Loans
|
1.00%
|
N/A
|
|
|
New
Term Loans
|
1.00%
|
2.00%
|
|
|
Existing
Term Loans
|
1.625%
|
2.625%
|
2
;
provided,
that on
and after the first Adjustment Date occurring after the Restatement Effective
Date, the Applicable Margin with respect to Revolving Loans and Swingline Loans
will be determined pursuant to the Applicable Pricing Grid; and
(b)
with
respect to Incremental Term Loans, such per annum rates as shall be agreed
to by
the Borrower and the applicable Incremental Term Lenders as shown in the
applicable Incremental Facility Activation Notice.
“Applicable
Pricing Grid”:
the
pricing grid set forth below:
|
Consolidated
Leverage Ratio
|
Applicable
Margin for
Eurodollar
Loans
|
Applicable
Margin for
ABR
Loans
|
|
Greater
than or equal to 3.0 to 1.0
|
2.00%
|
1.00%
|
|
Less
than 3.0 to 1.0
|
1.75%
|
0.75%
|
For
the
purposes of the Applicable Pricing Grid, the Consolidated Leverage Ratio shall
be calculated as of the last day of each fiscal quarter and changes in the
Applicable Margin resulting from changes in the Consolidated Leverage Ratio
shall become effective on the date (the “Adjustment
Date”)
that
is three Business Days after the date on which financial statements are
delivered to the Lenders pursuant to Section 6.1 with respect to such fiscal
quarter (or the fiscal year ending with such fiscal quarter, as applicable)
and
shall remain in effect until the next change to be effected pursuant to this
paragraph. If any financial statements referred to above are not delivered
within the time periods specified in Section 6.1, then, until the date that
is
three Business Days after the date on which such financial statements are
delivered, the highest rate set forth in each column of the Applicable Pricing
Grid shall apply. In addition, at all times while an Event of Default shall
have
occurred and be continuing, the highest rate set forth in each column of the
Applicable Pricing Grid shall apply.
“Application”:
an
application, in such form as the relevant Issuing Lender may specify from time
to time, requesting such Issuing Lender to open a Letter of Credit.
“Approved
Fund”:
as
defined in Section 10.6.
“Asset
Disposition Test Period”:
as of
any date of determination, the most recent fiscal quarter as to which financial
statements have been delivered pursuant to Section 6.1.
“Asset
Sale”:
any
Disposition of property or series of related Dispositions of property (excluding
(a) Exchanges pursuant to which no cash consideration is received by the
Borrower or any of its Subsidiaries and (b) any such Disposition permitted
by
clause (a), (b), (c), (d), (h) or (j) of Section 7.5) that yields gross cash
proceeds to the Borrower or any of its Subsidiaries in excess of
$35,000,000.
“Assignee”:
as
defined in Section 10.6(b)(i).
“Assignment
and Assumption”:
an
Assignment and Assumption, substantially in the form of Exhibit E.
“Assumption
Agreement”:
an
agreement in substantially the form of the applicable Exhibit to the Guarantee
and Collateral Agreement, pursuant to which a Subsidiary of the Borrower becomes
a party thereto.
3
“Attributable
Debt”:
in
respect of a sale and leaseback transaction entered into by the Borrower or
any
of its Subsidiaries, 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 sole option of the lessor,
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, without limitation, CATV Franchises, FCC Licenses and Pole
Agreements.
“Available
Liquidity”:
at any
date, the sum of (a) the Available Revolving Commitments and (b) the aggregate
amount of cash and Cash Equivalents on hand of the Borrower and its Subsidiaries
not subject to any Lien (other than pursuant to the Loan Documents, Liens
permitted by Section 7.3(g) or (o) or inchoate Liens permitted by Section
7.3(a)).
“Available
Revolving Commitment”:
as to
any Revolving Lender at any time, an amount equal to the excess, if any, of
(a)
such Lender’s Revolving Commitment then in effect over
(b) such
Lender’s Revolving Extensions of Credit then outstanding; provided,
that in
calculating any Lender’s Revolving Extensions of Credit for the purpose of
determining such Lender’s Available Revolving Commitment pursuant to Section
2.6(a), the aggregate principal amount of Swingline Loans then outstanding
shall
be deemed to be zero.
“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).
“Borrower”:
as
defined in the preamble hereto.
“Borrowing
Date”:
any
Business Day specified by the Borrower in a Notice of Borrowing as a date on
which the Borrower requests the relevant Lenders to make Loans
hereunder.
“Budget”:
as
defined in Section 6.2(c).
“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 interbank eurodollar
market.
“Capital
Lease Obligations”:
as to
any Person, the obligations of such Person to pay rent or other amounts under
any lease of (or other arrangement conveying the right to use) real or personal
property, or a combination thereof, which obligations are required to be
classified and accounted for as capital leases on a balance sheet of such Person
under GAAP and, for the purposes of this Agreement, the amount of such
obligations at any time shall be the capitalized amount thereof at such time
determined in accordance with GAAP.
4
“Cash
Equivalents”:
(a)
marketable direct obligations issued by, or unconditionally guaranteed by,
the
United States government or issued by any agency thereof and backed by the
full
faith and credit of the United States, in each case maturing within one year
from the date of acquisition; (b) certificates of deposit, time deposits,
eurodollar time deposits or overnight bank deposits having maturities of six
months or less from the date of acquisition issued by any Lender or by any
commercial bank organized under the laws of the United States or any state
thereof having combined capital and surplus of not less than $500,000,000;
(c)
commercial paper of an issuer rated at the time of acquisition at least A-1
by
Standard & Poor’s Ratings Services (“S&P”)
or P-1
by Moody’s Investors Service, Inc. (“Moody’s”),
or
carrying an equivalent rating by a nationally recognized rating agency, if
both
of the two named rating agencies cease publishing ratings of commercial paper
issuers generally, and maturing within six months from the date of acquisition;
(d) repurchase obligations of any Lender or of any commercial bank satisfying
the requirements of clause (b) of this definition, having a term of not more
than 30 days, with respect to securities issued or fully guaranteed or insured
by the United States government; (e) securities with maturities of one year
or
less from the date of acquisition issued or fully guaranteed by any state,
commonwealth or territory of the United States, by any political subdivision
or
taxing authority of any such state, commonwealth or territory or by any foreign
government, the securities of which state, commonwealth, territory, political
subdivision, taxing authority or foreign government (as the case may be) are
rated at the time of acquisition at least A by S&P or A by Moody’s; (f)
securities with maturities of six months or less from the date of acquisition
backed by standby letters of credit issued by any Lender or any commercial
bank
satisfying the requirements of clause (b) of this definition; or (g) shares
of
money market mutual or similar funds which invest exclusively in assets
satisfying the requirements of clauses (a) through (f) 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”:
Charter Communications Holdings, LLC, a Delaware limited liability company,
together with its successors.
“CCHC”:
Charter Communications Holding Company, LLC, a Delaware limited liability
company, together with its successors.
“CCH
Senior Note Indenture”:
the
collective reference to the Indentures entered into by CCH and Charter
Communications Holdings Capital Corporation in connection with the issuance
of
CCH’s senior notes or senior discount notes, together with all instruments and
other agreements entered into by CCH or Charter Communications Holdings Capital
Corporation in connection therewith.
“CCH
Senior Notes”:
the
senior notes and senior discount notes of CCH and Charter Communications
Holdings Capital Corporation issued pursuant to the CCH Senior Note
Indenture.
5
“CCI”:
Charter Communications, Inc., a Delaware corporation, together with its
successors.
“CCI
Group”:
the
collective reference to CCI, CCHC, CCH and each of their respective Subsidiaries
(including the Borrower and its Subsidiaries) and any Non-Recourse
Subsidiaries.
“CCO
Senior Note Indenture”:
the
Indenture entered into by the Borrower in connection with the issuance of the
CCO Senior Notes, together with all instruments and other agreements entered
into by the Borrower or any of its Affiliates in connection
therewith.
“CCO
Senior Notes”:
the
$1,870,409,000 aggregate principal amount at maturity senior second lien notes
of the Borrower outstanding on the Restatement Effective Date.
“CCVIII
Credit Agreement”:
the
Credit Agreement, dated as of February
2, 1999, as amended and restated as of April 27, 2004, among CC VIII Holdings,
LLC, CC VIII Operating, LLC, as borrower, and the Borrower, as administrative
agent and sole lender.
“CCVIII
Interest”:
100%
of the Class A Members’ Membership Interests in CC VIII, LLC, a Delaware limited
liability company, under the Third Amended and Restated Limited Liability
Company Agreement for CC VIII, LLC, dated as of October 31, 2005, as amended
and/or restated from time to time, including any modification in the class,
number of units, or other attributes associated with such Membership Interests;
provided, that the CCVIII Interest shall not include such Membership Interests
to the extent that either the “Adjusted Priority Capital” or the “Priority Rate”
(as each such term is defined under such agreement) exceeds the Adjusted
Priority Capital or the Priority Rate, respectively, as of the Restatement
Effective Date.
“Charter
Group”:
the
collective reference to CCI, CCHC, the Designated Holding Companies, the
Borrower and its Subsidiaries, together with any member of the Paul Allen Group
or any Affiliate of any such member that, in each case, directly or indirectly
owns more than 50% of the Equity Interests (determined on the basis of economic
interests) in the Borrower or any of its Subsidiaries. Notwithstanding the
foregoing, no individual and no entity organized for estate planning purposes
shall be deemed to be a member of the Charter Group.
“Code”:
the
Internal Revenue Code of 1986, as amended from time to time.
“Co-Documentation
Agents”:
as
defined in the preamble hereto.
“Collateral”:
all
property of the Loan Parties, now owned or hereafter acquired, upon which a
Lien
is purported to be created by the Guarantee and Collateral
Agreement.
“Commercial
Contracts”:
commercial agreements entered into by the Borrower on behalf of or for the
benefit of its Subsidiaries in respect of the purchase or sale of capital assets
or other products or services used in the ordinary course operation of the
business of such Subsidiaries and/or the properties of such Subsidiaries, and
other agreements entered into by the Borrower in respect of any acquisition
of
assets by, or Disposition of assets of, any Subsidiary of the Borrower otherwise
permitted by this Agreement, provided
that, in
each case, (a) no such arrangement shall involve the acquisition of real estate,
fixtures or franchise agreements, and (b) any such assets so purchased (other
than assets described in Section 7.14(b)(ii)(z)) shall promptly following such
purchase only be owned by the relevant Subsidiary and not by the
Borrower.
6
“Commitments”:
the
collective reference to the Revolving Commitments and the New Term
Commitments.
“Commonly
Controlled Entity”:
an
entity, whether or not incorporated, that is under common control with any
Loan
Party within the meaning of Section 4001 of ERISA or is part of a group that
includes any Loan Party and that is treated as a single employer under Section
414 of the Code.
“Compliance
Certificate”:
a
certificate duly executed by a Responsible Officer, substantially in the form
of
Exhibit B.
“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 the Facilities, including materials
incorporated by reference therein.
“Consideration”:
with
respect to any Investment or Disposition, (a) any cash or other property (valued
at fair market value in the case of such other property) paid or transferred
in
connection therewith, (b) the principal amount of any Indebtedness assumed
in
connection therewith and (c) any letters of credit, surety arrangements or
security deposits posted in connection therewith.
“Consolidated
First Lien Leverage Ratio”:
as of
the last day of any period, the ratio of (a) the sum of (i) the aggregate
principal amount of all Indebtedness (including L/C Obligations) outstanding
under this Agreement at such date and (ii) the aggregate principal amount of
any
other Indebtedness (other than (x) in the case of contingent obligations of
the
type described in clause (f) of the definition of “Indebtedness”, any such
obligations not constituting L/C Obligations and (y) Indebtedness incurred
pursuant to Section 7.2(g)) of the Borrower and its Subsidiaries at such date
that is secured by the Collateral on a basis pari
passu
with the
Indebtedness under this Agreement, determined on a consolidated basis in
accordance with GAAP to (b) Annualized Operating Cash Flow determined in respect
of the fiscal quarter ending on such day.
“Consolidated
Leverage Ratio”:
as of
the last day of any period, the ratio of (a) Consolidated Total Debt on such
day
to (b) Annualized Operating Cash Flow determined in respect of the fiscal
quarter ending on such day.
“Consolidated
Net Income”:
for
any period, the consolidated net income (or loss) of the Borrower and its
Subsidiaries, determined on a consolidated basis in accordance with GAAP;
provided
that,
GAAP to the contrary notwithstanding, there shall be excluded (a) the income
(or
deficit) of any Person accrued prior to the date it becomes a Subsidiary of
the
Borrower or is merged into or consolidated with the Borrower or any of its
Subsidiaries, (b) the income (or deficit) of any Person (other than a Subsidiary
of the Borrower) in which the Borrower or any of its Subsidiaries has an
ownership interest, except to the extent that any such income is actually
received by the Borrower or such Subsidiary in the
7
form
of
dividends or similar distributions, (c) the undistributed earnings of any
Subsidiary of the Borrower (including any Excluded Acquired Subsidiary) to
the
extent that the declaration or payment of dividends or similar distributions
by
such Subsidiary is not at the time permitted by the terms of any Contractual
Obligation (other than under any Loan Document) or Requirement of Law applicable
to such Subsidiary and (d) whether or not distributed, the income of any
Non-Recourse Subsidiary.
“Consolidated
Operating Cash Flow”:
for
any period with respect to the Borrower and its Subsidiaries, Consolidated
Net
Income for such period plus,
without
duplication and to the extent deducted in computing Consolidated Net Income
for
such period, the sum of (i) total income tax expense, (ii) interest expense,
amortization or writeoff of debt discount and debt issuance costs and
commissions, discounts and other fees and charges associated with Indebtedness,
(iii) depreciation and amortization expense, (iv) management fees expensed
during such period, (v) any extraordinary or non-recurring expenses or losses,
(vi) any expenses or losses consisting of restructuring charges, litigation
settlements and judgments and related costs, (vii) losses on Dispositions of
assets outside of the ordinary course of business and (viii) other non-cash
items reducing such Consolidated Net Income and minus,
without
duplication and to the extent included in the statement of Consolidated Net
Income for such period, the sum of (i) any extraordinary or non-recurring income
or gains, (ii) gains on Dispositions of assets outside of the ordinary course
of
business and (iii) other non-cash items increasing such Consolidated Net Income,
all as determined on a consolidated basis in accordance with GAAP.
“Consolidated
Total Debt”:
at any
date, the aggregate principal amount of all Indebtedness (other than (x) in
the
case of contingent obligations of the type described in clause (f) of the
definition of “Indebtedness”, any such obligations not constituting L/C
Obligations and (y) Indebtedness incurred pursuant to Section 7.2(g)) of the
Borrower and its Subsidiaries at such date, determined on a consolidated basis
in accordance with GAAP.
“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.
“Debt
Repayment”:
as
defined in Section 7.6(c).
“Default”:
any of
the events specified in Section 8, whether or not any requirement for the
giving of notice, the lapse of time, or both, has been satisfied.
“Designated
Holding Companies”:
the
collective reference to (i) CCH, (ii) each direct and indirect Subsidiary,
whether now existing or hereafter created or acquired, of CCH of which Holdings
is a direct or indirect Subsidiary and (iii) Holdings.
“DHC
Debt”:
the
collective reference to all Indebtedness of the Designated Holding
Companies.
“DHC
Default”:
with
respect to any one or more issues of DHC Debt aggregating more than
$200,000,000, any default (other than a default based on the failure of the
relevant issuer to provide a certificate, report or other information, until
notice of such default is given to such issuer by the required holders or
trustee as specified in the indenture or agreement governing such DHC Debt)
or
event of default.
“Disposition”:
with
respect to any property, any sale, lease (other than leases in the ordinary
course of business, including leases of excess office space and fiber leases),
sale and leaseback,
8
assignment,
conveyance, transfer or other disposition thereof, including pursuant to
an
exchange for other property. The terms “Dispose”
and
“Disposed
of”
shall
have correlative meanings.
“Disposition
Date”:
as
defined in Section 7.5(f).
“Dollars”
and
“$”:
dollars in lawful currency of the United States.
“Domestic
Subsidiary”:
any
Subsidiary of the Borrower organized under the laws of any jurisdiction within
the United States.
“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”:
any
and all shares, interests, participations or other equivalents (however
designated) of capital stock of a corporation, any and all classes of membership
interests in a limited liability company, any and all classes of partnership
interests in a partnership and any and all other equivalent ownership interests
in a Person, and any and all warrants, rights or options to purchase any of
the
foregoing.
“ERISA”:
the
Employee Retirement Income Security Act of 1974, as amended from time to time
and the regulations promulgated thereunder.
“Eurocurrency
Reserve Requirements”:
for
any day, as applied to a Eurodollar Loan, the aggregate (without duplication)
of
the maximum rates (expressed as a decimal fraction) of reserve requirements
in
effect on such day (including basic, supplemental, marginal and emergency
reserves under any regulations of the Board or other Governmental Authority
having jurisdiction with respect thereto) dealing with reserve requirements
prescribed for eurocurrency funding (currently referred to as “Eurocurrency
Liabilities” in Regulation D of the Board) maintained by a member bank of the
Federal Reserve System.
“Eurodollar
Base Rate”:
with
respect to each day during each Interest Period pertaining to a Eurodollar
Loan,
the rate per annum determined on the basis of the rate for deposits in Dollars
for a period equal to such Interest Period commencing on the first day of such
Interest Period appearing on Page 3750 of the Telerate screen as of 11:00 A.M.,
London time, two Business Days prior to the beginning of such Interest Period.
In the event that such rate does not appear on Page 3750 of the Telerate screen
(or otherwise on such screen), the “Eurodollar
Base Rate”
shall
be determined by reference to such other comparable publicly available service
for displaying eurodollar rates as may be selected by the Administrative Agent
or, in the absence of such availability, by reference to the rate at which
the
Administrative Agent is offered Dollar deposits at or about 11:00 A.M., New
York
City time, two Business Days prior to the beginning of such Interest Period
in
the interbank eurodollar market where its eurodollar and foreign currency and
exchange operations are then being conducted for delivery on the first day
of
such Interest Period for the number of days comprised therein.
“Eurodollar
Loans”:
Loans
for which the applicable rate of interest is based upon the Eurodollar
Rate.
9
“Eurodollar
Rate”:
with
respect to each day during each Interest Period pertaining to a Eurodollar
Loan,
a rate per annum determined for such day in accordance with the following
formula (rounded upward to the nearest 1/100th of 1%):
Eurodollar
Base Rate
1.00
-
Eurocurrency Reserve Requirements
“Eurodollar
Tranche”:
the
collective reference to Eurodollar Loans under a particular Facility, 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”:
any of
the events specified in Section 8, provided
that any
requirement for the giving of notice, the lapse of time, or both, has been
satisfied.
“Exchange”:
any
exchange of operating assets for other operating assets in a Permitted Line
of
Business and, subject to the last sentence of this definition, of comparable
value and use to those assets being exchanged, including exchanges involving
the
transfer or acquisition (or both transfer and acquisition) of Equity Interests
of a Person so long as 100% of the Equity Interests of such Person held by
the
Borrower and its Subsidiaries are transferred or 100% of the Equity Interests
of
such Person are acquired, as the case may be. It is understood that exchanges
of
the kind described above as to which a portion of the consideration paid or
received is in the form of cash shall nevertheless constitute “Exchanges” for
the purposes of this Agreement.
“Exchange
Date”:
the
date of consummation of any Exchange; provided
that,
with respect to a series of related Dispositions required pursuant to a plan
of
Exchange contained in a single agreement, the Exchange Date shall be the date
of
the first such Disposition.
“Exchange
Excess Amount”:
as
defined in Section 7.5(g).
“Excluded
Acquired Subsidiary”:
any
Subsidiary described in paragraph (f) of Section 7.2 to the extent that the
documentation governing the Indebtedness referred to in said paragraph prohibits
(including by reason of its inability to satisfy a leverage ratio or other
financial covenant condition under such Indebtedness) such Subsidiary from
becoming a Subsidiary Guarantor, but only so long as such Indebtedness remains
outstanding.
“Existing
Credit Agreement”:
as
defined in the recitals hereto.
“Existing
Term Lender”:
each
Lender that holds an Existing Term Loan.
“Existing
Term Loan”:
as
defined in Section 2.1(a).
“Facility”:
each
of (a) the Term Loans and any New Term Commitments (the “Term
Facility”),
(b)
the Revolving Commitments and the extensions of credit made thereunder (the
“Revolving
Facility”)
and
(c) the Incremental Term Loans (the “Incremental
Term Facility”).
“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.
10
“Federal
Funds Effective Rate”:
for
any day, the weighted average of the rates on overnight federal funds
transactions with members of the Federal Reserve System arranged by federal
funds brokers, as published on the next succeeding Business Day by the Federal
Reserve Bank of New York, or, if such rate is not so published for any day
that is a Business Day, the average of the quotations for the day of such
transactions received by the Administrative Agent from three federal funds
brokers of recognized standing selected by it.
“Flow-Through
Entity”:
any
Person that is not treated as a separate tax paying entity for United States
federal income tax purposes.
“Foreign
Subsidiary”:
any
Subsidiary of the Borrower that is not a Domestic Subsidiary.
“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 in the United States as in effect
from
time to time, except that for purposes of Section 7.1, GAAP shall be determined
on the basis of such principles in effect on December 31, 2005 as applied in
the
preparation of the most recent audited financial statements delivered pursuant
to Section 6.1 prior to the Restatement Effective Date. In the event that any
“Accounting Change” (as defined below) shall occur and such change results in a
change in the method of calculation of financial covenants, standards or terms
in this Agreement, then the Borrower and the Administrative Agent agree to
enter
into negotiations in order to amend such provisions of this Agreement so as
to
equitably reflect such Accounting Changes with the desired result that the
criteria for evaluating the Borrower’s financial condition shall be the same
after such Accounting Changes as if such Accounting Changes had not been made.
Until such time as such an amendment shall have been executed and delivered
by
the Borrower, the Administrative Agent and the Required Lenders, all financial
covenants, standards and terms in this Agreement shall continue to be calculated
or construed as if such Accounting Changes had not occurred. “Accounting
Changes” refers to changes in (a) accounting principles required by the
promulgation of any rule, regulation, pronouncement or opinion by the Financial
Accounting Standards Board of the American Institute of Certified Public
Accountants or, if applicable, the SEC, (b) the Borrower’s manner of accounting
as directed or otherwise required or requested by the SEC (including such SEC
changes affecting a Qualified Parent Company and applicable to the Borrower),
and (c) the Borrower’s manner of accounting addressed in a preferability letter
from the Borrower’s independent auditors to the Borrower (or a Qualified Parent
Company and applicable to the Borrower) in order for such auditor to deliver
an
opinion on the Borrower’s financial statements required to be delivered pursuant
to Section 6.1 without qualification.
“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
and Collateral Agreement”:
the
Amended and Restated Guarantee and Collateral Agreement, substantially in the
form of Exhibit A, executed and delivered by Holdings, the Borrower and each
Subsidiary Guarantor.
“Guarantee
Obligation”:
as to
any Person (the “guaranteeing
person”),
any
obligation of (a) the guaranteeing person or (b) another Person (including
any
bank under any letter of credit) to induce the creation of which the
guaranteeing person has issued a reimbursement, counterindemnity or similar
11
obligation,
in either case guaranteeing or in effect guaranteeing any Indebtedness, leases,
dividends or other obligations (the “primary
obligations”)
of any
other third Person (the “primary
obligor”)
in any
manner, whether directly or indirectly, including any obligation of the
guaranteeing person, whether or not contingent, (i) to purchase any such
primary
obligation or any property constituting direct or indirect security therefor,
(ii) to advance or supply funds (1) for the purchase or payment of any such
primary obligation or (2) to maintain working capital or equity capital of
the
primary obligor or otherwise to maintain the net worth or solvency of the
primary obligor, (iii) to purchase property, securities or services primarily
for the purpose of assuring the owner of any such primary obligation of the
ability of the primary obligor to make payment of such primary obligation
or
(iv) otherwise to assure or hold harmless the owner of any such primary
obligation against loss in respect thereof; provided,
however,
that
the term “Guarantee Obligation” shall not include endorsements of instruments
for deposit or collection in the ordinary course of business. The amount
of any
Guarantee Obligation of any guaranteeing person shall be deemed to be the
lower
of (a) an amount equal to the stated or determinable amount of the primary
obligation in respect of which such Guarantee Obligation is made and (b)
the
maximum amount for which such guaranteeing person may be liable pursuant
to the
terms of the instrument embodying such Guarantee Obligation, unless such
primary
obligation and the maximum amount for which such guaranteeing person may
be
liable are not stated or determinable, in which case the amount of such
Guarantee Obligation shall be such guaranteeing person’s maximum reasonably
anticipated liability in respect thereof as determined by the Borrower in
good
faith.
“Guarantors”:
the
collective reference to Holdings and the Subsidiary Guarantors.
“Hedge
Agreements”:
all
interest rate swaps, caps or collar agreements or similar arrangements dealing
with interest rates or currency exchange rates or the exchange of nominal
interest obligations, either generally or under specific contingencies.
“Holdings”:
as
defined in the preamble hereto, together with any successor
thereto.
“Holdings
Administrative Agent”:
Bank
of America, N.A.
“Holdings
Credit Agreement”:
the
credit agreement, dated as of the date hereof or shortly thereafter, among
Holdings, the financial institutions from time to time parties thereto, Holdings
Administrative Agent and the other agents party thereto.
“Holdings
Credit Documents”:
the
“Loan Documents” as defined in the Holdings Credit Agreement.
“Holdings
Intercreditor Agreement”:
the
Intercreditor Agreement, dated as of the date hereof or shortly thereafter,
between the Administrative Agent and the Holdings Administrative
Agent.
“Holdings
Loan Obligations”:
the
“Loans” under and as defined in the Holdings Credit Agreement.
“Holdings
Senior Note Indenture”:
the
Indenture relating to the 8 3/4% Senior Notes of Holdings due 2013, dated as
of
November 10, 2003, by and among Holdings, CCO Holdings Capital Corp. and
Wilmington Trust Company (as successor to Wells Fargo Bank, N.A.), as
trustee.
“Incremental
Facility Activation Notice”:
a
notice substantially in the form of Exhibit F-2.
12
“Incremental
Facility Closing Date”:
any
Business Day designated as such in an Incremental Facility Activation
Notice.
“Incremental
Term Facility”:
as
defined in the definition of “Facility”.
“Incremental
Term Lenders”:
(a) on any Incremental Facility Activation Date relating to Incremental
Term Loans, the Lenders signatory to the relevant Incremental Facility
Activation Notice and (b) thereafter, each Lender that is a holder of an
Incremental Term Loan.
“Incremental
Term Loans”:
as
defined in Section 2.1(a).
“Incremental
Term Maturity Date”:
with
respect to the Incremental Term 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 Term Loans.
“Indebtedness”:
of any
Person at any date, without duplication, (a) all indebtedness of such Person
for
borrowed money, (b) all obligations of such Person for the deferred purchase
price of property or services (other than trade payables incurred in the
ordinary course of such Person’s business), (c) all obligations of such Person
evidenced by notes, bonds, debentures or other similar instruments, (d) all
indebtedness created or arising under any conditional sale or other title
retention agreement with respect to property acquired by such Person (even
though the rights and remedies of the seller or lender under such agreement
in
the event of default are limited to repossession or sale of such property),
(e)
all Capital Lease Obligations of such Person, (f) all obligations of such
Person, contingent or otherwise, as an account party under acceptances, letters
of credit, surety bonds or similar arrangements, (g) the liquidation value
of
all redeemable preferred Equity Interests of such Person (excluding, however,
the CCVIII Interest), (h) all Guarantee Obligations of such Person in respect
of
obligations of the kind referred to in clauses (a) through (g) above, (i) all
obligations of the kind referred to in clauses (a) through (h) above secured
by
(or for which the holder of such obligation has an existing right, contingent
or
otherwise, to be secured by) any Lien on property (including accounts and
contract rights) owned by such Person, whether or not such Person has assumed
or
become liable for the payment of such obligation, and (j) for the purposes
of
Sections 8(e) and (f) only, all obligations of such Person in respect of Hedge
Agreements. The Indebtedness of any Person shall include, without duplication,
the Indebtedness of any other entity (including any partnership in which such
Person is a general partner) to the extent such Person is liable therefor as
a
result of such Person’s ownership interest in or other relationship with such
entity, except to the extent the terms of such Indebtedness expressly provide
that such Person is not liable therefor.
“Insolvency”:
with
respect to any Multiemployer Plan, the condition that such Plan is insolvent
within the meaning of Section 4245 of ERISA.
“Insolvent”:
pertaining to a condition of Insolvency.
“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.
“Intercompany
Obligations”:
as
defined in the Guarantee and Collateral Agreement.
13
“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 (other than any Revolving
Loan that is an ABR Loan and any Swingline 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 date, as the case may be, with respect to such Eurodollar Loan and
ending one, two, three, six or, if consented to by (which consent shall not
be
unreasonably withheld) each Lender under the relevant Facility, nine or twelve
months thereafter, 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 consented to by (which consent shall not be unreasonably withheld)
each Lender under the relevant Facility, 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 under a particular Facility that
would extend beyond the Revolving Termination Date or beyond the date final
payment is due on the Term Loans or the relevant Incremental Term 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.
“Investments”:
as
defined in Section 7.7.
“Issuing
Lender”:
each
of JPMorgan Chase Bank, Bank of America, N.A. and any other Revolving Lender
that has agreed in its sole discretion to act as an “Issuing Lender” hereunder
and that has been approved in writing by the Administrative Agent as an “Issuing
Lender” hereunder, in each case in its capacity as issuer of any Letter of
Credit.
“JPMorgan
Chase Bank”:
JPMorgan Chase Bank, N.A.
“KPMG”:
KPMG,
LLP.
“LaGrange
Documents”:
collectively, the LaGrange Indenture, the LaGrange Sale-Leaseback Agreement,
the
LaGrange Management Agreement, the LaGrange Subordination Agreement and the
LaGrange Formation Documents and the other organizational documents of the
LaGrange Subsidiaries, in each case as in effect on the Restatement Effective
Date or as amended from time to time
14
thereafter
in a manner that does not materially and adversely affect the interests of
the
Lenders and does not result in materially more onerous terms and conditions
with
respect to the Borrower and its Subsidiaries.
“LaGrange
Formation Documents”:
the
Articles of Organization of Charter LaGrange, L.L.C., dated July 30, 1998 (as
corrected by Certificate of Correction on July 10, 2003), Operating Agreement
of
Charter-LaGrange, L.L.C., dated July 30, 1998, as amended by the First Amendment
to Operating Agreement dated June 19, 2003, the Amended and Restated Articles
of
Incorporation of CF Finance LaGrange, Inc., dated August 8, 1998 (as corrected
by Certificated of Correction filed on July 10, 2003), and Bylaws of CF Finance
LaGrange, Inc., dated August 4, 1998.
“LaGrange
Indenture”:
the
Trust Indenture and Security Agreement, dated as of July 1, 1998, between the
LaGrange Development Authority and Reliance Trust Company, as trustee.
“LaGrange
Management Agreement”:
the
Management Agreement, dated as of August 4, 1998, between Charter
Communications, LLC (formerly known as Charter Communications, L.P.) and
Charter-LaGrange, L.L.C.
“LaGrange
Sale-Leaseback Agreement”:
the
Lease Agreement, dated as of July 1, 1998, between the LaGrange Development
Authority and Charter LaGrange, L.L.C.
“LaGrange
Subordination Agreement”:
the
Management Fee Subordination Agreement, dated as of July 1, 1998, among Charter
Communications, LLC (formerly known as Charter Communications, L.P.),
Charter-LaGrange, L.L.C. and the LaGrange Development Authority.
“LaGrange
Subsidiaries”:
collectively, CF Finance LaGrange, Inc., a Georgia corporation, and Charter
LaGrange, L.L.C., a Georgia limited liability company, and their respective
Subsidiaries.
“L/C
Commitment”:
$350,000,000.
“L/C
Fee Payment Date”:
the
last day of each March, June, September and December and the last day of the
Revolving Commitment Period.
“L/C
Obligations”:
at any
time, an amount equal to the sum of (a) the aggregate then undrawn and unexpired
amount of the then outstanding Letters of Credit and (b) the aggregate amount
of
drawings under Letters of Credit that have not then been reimbursed pursuant
to
Section 3.5.
“L/C
Participants”:
with
respect to any Letter of Credit, the collective reference to all Revolving
Lenders other than the Issuing Lender that issued such Letter of
Credit.
“Lenders”:
as
defined in the preamble hereto.
“Letters
of Credit”:
as
defined in Section 3.1(a).
“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.
15
“Lien”:
any
mortgage, pledge, hypothecation, assignment, deposit arrangement, encumbrance,
lien (statutory or other), charge or other security interest or any preference,
priority or other security agreement or preferential arrangement of any kind
or
nature whatsoever (including any conditional sale or other title retention
agreement and any capital lease having substantially the same economic effect
as
any of the foregoing).
“Loan”:
any
loan made or held by any Lender pursuant to this Agreement.
“Loan
Documents”:
this
Agreement, the Guarantee and Collateral Agreement, the Notes and any other
agreements, documents or instruments to which any Loan Party is party and which
is designated as a Loan Document.
“Loan
Parties”:
Holdings, the Borrower and each Subsidiary of the Borrower that is a party
to a
Loan Document.
“Majority
Facility Lenders”:
with
respect to the Term Facility or Revolving Facility, the holders of more than
50%
of the aggregate unpaid principal amount of the Term Loans (and, if applicable,
any New Term Commitments) or the Total Revolving Extensions of Credit, as the
case may be, outstanding under such Facility (or, in the case of the Revolving
Facility, prior to any termination of the Revolving Commitments, the holders
of
more than 50% of the Total Revolving Commitments).
“Management
Fee Agreement”:
the
Second Amended and Restated Management Agreement dated as of June 19, 2003
between the Borrower and CCI.
“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.
“Multiemployer
Plan”:
a Plan
that is a multiemployer plan as defined in Section 4001(a)(3) of
ERISA.
“Net
Cash Proceeds”:
(a) in
connection with any Asset Sale or any Recovery Event, the proceeds thereof
in
the form of cash and Cash Equivalents (including any such proceeds received
by
way of deferred payment of principal pursuant to a note or installment
receivable or purchase price adjustment receivable or otherwise, but only as
and
when received), net of attorneys’ fees, accountants’ fees, investment banking
fees and consultants’ fees (in each case, including costs and disbursements),
amounts required to be applied to the repayment of Indebtedness secured by
a
Lien expressly permitted hereunder on any asset that is the subject of such
Asset Sale or Recovery Event (other than any Lien pursuant to the Guarantee
and
Collateral Agreement) and other customary fees and expenses actually incurred
in
connection therewith and net of taxes paid or reasonably estimated to be payable
as a result thereof (after taking into account any available tax credits or
deductions and any tax sharing arrangements) and (b) in connection with any
issuance or sale of Equity Interests or any incurrence of Indebtedness, the
cash
proceeds received from such issuance or incurrence, net of attorneys’ fees,
investment banking fees, accountants’ fees, underwriting discounts and
commissions and other customary fees and expenses actually incurred in
connection therewith.
16
“New
Lender”:
as
defined in Section 2.1(d).
“New
Lender Supplement”:
as
defined in Section 2.1(d).
“New
Term Commitment”:
as to
any New Term Lender, the obligation of such Lender to make New Term Loans in
an
aggregate principal amount not to exceed, as applicable, (a) the amount set
forth opposite such Lender’s name under the heading “New
Term Commitment”
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 New Term Commitment
of each New Term Lender shall automatically be permanently reduced by the amount
of any New Term Loan made by it. Any remaining New Term Commitments outstanding
on April 30, 2007 shall automatically terminate if not funded on such
date.
“New
Term Lender”:
each
Lender that holds a New Term Commitment or makes a New Term Loan.
“New
Term Loans”:
as
defined in Section 2.1(a).
“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
Subsidiary”:
(a)
any Subsidiary of the Borrower designated as a Non-Recourse Subsidiary on
Schedule 4.15, (b) any Subsidiary of the Borrower created or acquired subsequent
to the Restatement Effective Date that is designated as a Non-Recourse
Subsidiary by the Borrower or any of its Subsidiaries substantially concurrently
with such creation or acquisition, (c) any Shell Subsidiary of the Borrower
that, at any point following the Restatement Effective Date, no longer qualifies
as a Shell Subsidiary that is designated as a Non-Recourse Subsidiary by the
Borrower or any of its Subsidiaries substantially concurrently with such failure
to qualify as a Shell Subsidiary and (d) any Subsidiary of any such designated
Subsidiary, provided,
that
(i) at no time shall any creditor of any such Subsidiary have any claim (whether
pursuant to a Guarantee Obligation or otherwise) against the Borrower or any
of
its other Subsidiaries (other than another Non-Recourse Subsidiary) in respect
of any Indebtedness or other obligation (except for obligations arising by
operation of law, including joint and several liability for taxes, ERISA and
similar items) of any such Subsidiary (other than in respect of a non-recourse
pledge of Equity Interests in such Subsidiary); (ii) neither the Borrower nor
any of its Subsidiaries (other than another Non-Recourse Subsidiary) shall
become a general partner of any such Subsidiary; (iii) no default with respect
to any Indebtedness of any such Subsidiary (including any right which the
holders thereof may have to take enforcement action against any such
Subsidiary), shall permit solely as a result of such Indebtedness being in
default or accelerated (upon notice, lapse of time or both) any holder of any
Indebtedness of the Borrower or its other Subsidiaries (other than another
Non-Recourse Subsidiary) to declare a default on such other Indebtedness or
cause the payment thereof to be accelerated or payable prior to its final
scheduled maturity; (iv) no such Subsidiary shall own any Equity Interests
of,
or own or hold any Lien on any property of, the Borrower or any other Subsidiary
of the Borrower (other than another Non-Recourse Subsidiary); (v) no Investments
may be made in any such Subsidiary by the Borrower or any of its Subsidiaries
(other than by another Non-Recourse Subsidiary) except to the extent permitted
under Section 7.7(g), (h) or (l); (vi) the Borrower shall not directly own any
Equity Interests in such Subsidiary; (vii) at the time of such designation,
no
Default or Event of Default shall have occurred and be continuing or would
result therefrom; (viii) such Subsidiary is not a Loan Party; and (ix) such
Subsidiary was not acquired pursuant to Section 7.7(f). It is understood that
Non-
17
Recourse
Subsidiaries shall be disregarded for the purposes of any calculation pursuant
to this Agreement relating to financial matters with respect to the
Borrower.
“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 each extension of credit hereunder.
“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.
“Participant”:
as
defined in Section 10.6(c)(i).
“Paul
Allen Group”:
the
collective reference to (a) Paul G. Allen, (b) his estate, spouse, immediate
family members and heirs and (c) any trust, corporation, partnership or other
entity, the beneficiaries, stockholders, partners or other owners of which
consist exclusively of Paul G. Allen or such other Persons referred to in clause
(b) above or a combination thereof.
“PBGC”:
the
Pension Benefit Guaranty Corporation established pursuant to Subtitle A of
Title
IV of ERISA (or any successor).
“Permitted
Line of Business”:
as
defined in Section 7.14(a).
“Person”:
an
individual, partnership, corporation, limited liability company, business trust,
joint stock company, trust, unincorporated association, joint venture,
Governmental Authority or other entity of whatever nature.
“Plan”:
at a
particular time, any employee benefit plan that is covered by Title IV of ERISA
and in respect of which a Loan Party 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.
“Pole
Agreement”:
any
pole attachment agreement or underground conduit use agreement entered into
in
connection with the operation of any CATV System.
“Prime
Rate”:
the
rate of interest per annum publicly announced from time to time by the
Administrative Agent as its prime rate in effect at its principal office in
New
York City (the Prime Rate not being intended to be the lowest rate of interest
charged by the Administrative Agent in connection with extensions of credit
to
debtors).
“Properties”:
as
defined in Section 4.17(a).
“QPC
Indentures”:
any
indenture or other agreement governing Indebtedness of a Qualified Parent
Company outstanding on the Restatement Effective Date.
“Qualified
Credit Support Limitations”:
limitations on the ability of a Subsidiary to become a Guarantor or grant Liens
on its assets no less favorable in any material respect to the Lenders
18
than
those in effect pursuant to the CCH Senior Note Indenture as in effect on
the
Restatement Effective Date.
“Qualified
Indebtedness”:
any
Indebtedness of a Qualified Parent Company (a) which is not held by any member
of the CCI Group and (b) to the extent that the Net Cash Proceeds thereof,
if
any, are or were used for the (i) payment of interest of or principal (or
premium) on any Qualified Indebtedness (including (A) by way of a tender,
redemption or prepayment of such Qualified Indebtedness and (B) amounts set
aside to prefund any such payment), (ii) direct or indirect Investment in the
Borrower or any of its Subsidiaries engaged substantially in businesses of
the
type described in Section 7.14(a), (iii) payment of management fees (to the
extent the Borrower would be permitted to pay such fees under Section 7.8(c))
and (iv) payment of amounts that would be permitted to be paid by way of a
Restricted Payment under Section 7.6(g) (including the expenses of any exchange
transaction). For purposes of this definition, all Indebtedness of a Qualified
Parent Company outstanding on the Restatement Effective Date and all subsequent
accretion of principal thereon shall be deemed to be Qualified
Indebtedness.
“Qualified
LaGrange Entity”:
any
LaGrange Subsidiary that both (a) is a party to or otherwise bound by, or formed
as a condition to, the LaGrange Documents and (b) has assets (either directly
or
through any Subsidiary or other Equity Interests) as reflected on its balance
sheet with an aggregate value of no more than $25,000,000.
“Qualified
Parent Company”:
CCI or
any of its direct or indirect Subsidiaries, in each case provided that the
Borrower shall be a direct or indirect Subsidiary of such Person.
“Recovery
Event”:
any
settlement of or payment, or series of related settlements or payments, in
respect of any property or casualty insurance claim or any condemnation
proceeding relating to any asset of the Borrower or any of its Subsidiaries
that
yields gross cash proceeds to the Borrower or any of its Subsidiaries in excess
of $35,000,000.
“Refunded
Swingline Loans”:
as
defined in Section 2.5(b).
“Register”:
as
defined in Section 10.6(b)(iv).
“Regulated
Subsidiary”:
any
Subsidiary that is prohibited, in connection with telephony licenses issued
to
it, from becoming a Loan Party by reason of the requirement of consent from
any
Governmental Authority, but only for so long as such consent has not been
obtained; provided,
that,
until such Subsidiary becomes a Loan Party and all of the Capital Stock of
such
Subsidiary owned by any Loan Party is pledged as Collateral, (a) such Subsidiary
owns no assets other than (i) governmental licenses to operate a telephony
business and leases of infrastructure necessary to operate such licenses and
(ii) other assets (held either directly or through any Subsidiary or other
Equity Interests) with an aggregate value not exceeding $250,000 and (b) the
Borrower shall not directly own any Equity Interests in such Subsidiary unless
all such Equity Interests have been pledged as Collateral.
“Regulation
U”:
Regulation U of the Board as in effect from time to time.
“Reimbursement
Obligation”:
the
obligation of the Borrower to reimburse the relevant Issuing Lender pursuant
to
Section 3.5 for amounts drawn under Letters of Credit.
“Reinvestment
Deadline”:
as
defined in the definition of “Reinvestment Proceeds”.
19
“Reinvestment
Deferred Amount”:
as of
any date of determination, with respect to any Reinvestment Proceeds, the
portion thereof that are not applied to prepay the Term Loans pursuant to
Section 2.9(a), as such amount may be reduced from time to time by application
of such Reinvestment Proceeds to acquire assets useful in the Borrower’s
business.
“Reinvestment
Prepayment Amount”:
with
respect to any Reinvestment Proceeds, the Reinvestment Deferred Amount relating
thereto then outstanding on the Reinvestment Prepayment Date.
“Reinvestment
Prepayment Date”:
with
respect to any Reinvestment Proceeds, the earliest of (a) the relevant
Reinvestment Deadline, (b) the date on which the Borrower shall have determined
not to, or shall have otherwise ceased to, acquire assets useful in the
Borrower’s business with all or any portion of the relevant Reinvestment
Deferred Amount, and (c) the date on which an Event of Default under Section
8(a) or 8(g) occurs.
“Reinvestment
Proceeds”:
with
respect to any Allocated Proceeds received when no Event of Default has occurred
and is continuing, the portion thereof which the Borrower (directly or
indirectly through a Subsidiary) intends and expects to use to acquire assets
useful in its business, on or prior to the earlier of (a) the date that is
eighteen months from the date of receipt of such Allocated Proceeds and
(b) the Business Day immediately preceding the date on which such proceeds
would be required to be applied, or to be offered to be applied, to prepay,
redeem or defease any Indebtedness of the Borrower or any of its Affiliates
(other than Indebtedness under this Agreement) if not applied as described
above
(such earlier date, the “Reinvestment
Deadline”),
provided
that
such use will not require purchases, repurchases, redemptions or prepayments
(or
offers to make purchases, repurchases, redemptions or prepayments) of any other
Indebtedness of the Borrower or any of its Affiliates.
“Release”:
an
authorization of release of specified Collateral, substantially in the form
of
Exhibit J.
“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 sum of (a) the aggregate unpaid
principal amount of the Term Loans then outstanding, (b) the Total Revolving
Commitments then in effect or, if the Revolving Commitments have been
terminated, the Total Revolving Extensions of Credit then outstanding and (c)
the New Term Commitments then in effect.
“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.
“Responsible
Officer”:
the
chief executive officer, president or chief financial officer of the Borrower,
but in any event, with respect to financial matters, any of the chief financial
officer, principal accounting officer, senior vice president - strategic
planning, vice president - finance and corporate treasurer or any other
financial officer of the Borrower.
20
“Restatement
Effective Date”:
the
date on which the conditions precedent set forth in Section 5.1 hereof shall
have been satisfied.
“Restricted
Payments”:
as
defined in Section 7.6.
“Revolving
Commitment”:
as to
any Revolving Lender, the obligation of such Lender to make Revolving Loans
and
participate in Swingline Loans and Letters of Credit in an aggregate principal
and/or face amount not to exceed, as applicable, (a) the amount set forth
opposite such Lender’s name under the heading “Revolving
Commitment”
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.
“Revolving
Commitment Period”:
the
period ending on the Revolving Termination Date.
“Revolving
Extensions of Credit”:
as to
any Revolving Lender at any time, an amount equal to the sum of (a) the
aggregate principal amount of all Revolving Loans held by such Lender then
outstanding, (b) such Lender’s Revolving Percentage of the L/C Obligations then
outstanding and (c) such Lender’s Revolving Percentage of the aggregate
principal amount of Swingline Loans then outstanding.
“Revolving
Facility”:
as
defined in the definition of “Facility”.
“Revolving
Lender”:
each
Lender that has a Revolving Commitment or that holds Revolving Loans or is
an
Issuing Lender.
“Revolving
Loans”:
as
defined in Section 2.1(b).
“Revolving
Percentage”:
as to
any Revolving Lender at any time, the percentage which such Lender’s Revolving
Commitment then constitutes of the Total Revolving Commitments (or, at any
time
after the Revolving Commitments shall have expired or terminated, the percentage
which the aggregate principal amount of such Lender’s Revolving Loans then
outstanding constitutes of the aggregate principal amount of the Revolving
Loans
then outstanding).
“Revolving
Termination Date”:
March
6, 2013.
“SEC”:
the
Securities and Exchange Commission, any successor thereto and any analogous
Governmental Authority.
“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.
“Senior
Note Intercreditor Agreement”:
the
Intercreditor Agreement, dated as of April 27, 2004, between the Administrative
Agent and the Trustee under the CCO Senior Note Indenture.
“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.
“Silo
Credit Agreements”:
as
defined in the Existing Credit Agreement (as defined in the Existing Credit
Agreement).
21
“Silo
Guarantee and Collateral Agreements”:
as
defined in the Existing Credit Agreement (as defined in the Existing Credit
Agreement).
“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
Cash Management Agreement”:
any
agreement providing for treasury, depositary or cash management services,
including in connection with any automated clearing house transfers of funds
and
purchasing card exposure, or any similar transactions between the Borrower
or
any Guarantor and any Lender or affiliate thereof or, in the case of any
agreement in effect on the Restatement Effective Date, any former Lender that
was a Lender on the Restatement Effective Date, or any of their respective
affiliates, which has been designated by such Lender and the Borrower, by notice
to the Administrative Agent not later than 90 days after the execution and
delivery by the Borrower or such Guarantor (or, if later, 90 days after the
date
hereof), as a “Specified Cash Management Agreement”
“Specified
Change of Control”:
a
“Change of Control” as defined in, or any event or condition of the type
described in Section 8(k) contained in, the documentation governing any
Indebtedness of Holdings or any Specified Long-Term Indebtedness having an
aggregate outstanding principal amount in excess of $200,000,000.
“Specified
Excluded Subsidiary”:
any
Foreign Subsidiary, any Shell Subsidiary, any Qualified LaGrange Entity, any
Excluded Acquired Subsidiary and any Regulated Subsidiary.
“Specified
Hedge Agreement”:
any
Hedge Agreement entered into by the Borrower or any of its Subsidiaries with
any
Person that is a Lender or an affiliate of a Lender at the time such Hedge
Agreement is entered into, in respect of interest rates or currency exchange
rates, and in the case of Hedge Agreements outstanding on the date hereof,
any
such Hedge Agreement that was a “Specified Hedge Agreement” as defined in the
Existing Credit Agreement.
“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 Commitments or Loans under any Facility 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.
22
“Specified
Long-Term Indebtedness”:
any
Indebtedness of the Borrower incurred pursuant to Section 7.2(e).
“Specified
Subordinated Debt”:
any
Indebtedness of the Borrower issued directly or indirectly to Paul G. Allen
or
any of his Affiliates (including any Qualified Parent Company), so long as
such
Indebtedness (a) qualifies as Specified Long-Term Indebtedness and (b) has
terms
and conditions substantially identical to those set forth in Exhibit
H.
“Subsidiary”:
as to
any Person, a corporation, partnership, limited liability company or other
entity of which shares of stock or other ownership interests having ordinary
voting power (other than stock or such other ownership interests having such
power only by reason of the happening of a contingency) to elect a majority
of
the board of directors or other managers of such corporation, partnership or
other entity are at the time owned, or the management of which is otherwise
controlled, directly or indirectly, through one or more intermediaries, or
both,
by such Person; provided,
that
Non-Recourse Subsidiaries shall be deemed not to constitute “Subsidiaries” for
the purposes of this Agreement (other than the definition of “Non-Recourse
Subsidiary”). Unless otherwise qualified, all references to a “Subsidiary” or to
“Subsidiaries” in this Agreement shall refer to a Subsidiary or Subsidiaries of
the Borrower.
“Subsidiary
Guarantor”:
each
Subsidiary of the Borrower other than any Specified Excluded Subsidiary, in
each
case to the extent that such Person has become a “Grantor” under the Guarantee
and Collateral Agreement; provided
that,
notwithstanding the foregoing, each Qualified LaGrange Entity shall be treated
as a Subsidiary Guarantor for the purposes of Section 7.
“Swingline
Commitment”:
the
obligation of the Swingline Lender to make Swingline Loans pursuant to Section
2.4 in an aggregate principal amount at any one time outstanding not to exceed
$75,000,000.
“Swingline
Lender”:
JPMorgan Chase Bank, in its capacity as the lender of Swingline
Loans.
“Swingline
Loans”:
as
defined in Section 2.4.
“Swingline
Participation Amount”:
as
defined in Section 2.5(c).
“Syndication
Agents”:
as
defined in the preamble hereto.
“Term
Facility”:
as
defined in the definition of “Facility”.
“Term
Lender”:
any
Lender that holds a Term Loan.
“Term
Loan”:
any
Existing Term Loan, New Term Loan or Incremental Term Loan.
“Term
Percentage”:
as to
any Term Lender at any time, the percentage which the amount of such Lender’s
New Term Loan or Existing Term Loan, as applicable, then outstanding constitutes
of the aggregate principal amount of the New Term Loans or Existing Term Loans,
as applicable, then outstanding.
“Test
Date”:
as
defined in Section 7.7(j).
23
“Total
Net Proceeds”:
in
connection with any Asset Sale or any Recovery Event, the sum, without
duplication, of (a) the proceeds thereof in the form of cash and Cash
Equivalents and (b) the amount of any deferred payment of principal pursuant
to
a note or installment receivable or purchase price adjustment receivable or
otherwise (whether or not received at the time “Total Net Proceeds” is
calculated in connection with such Asset Sale or Recovery Event), net of
attorneys’ fees, accountants’ fees, investment banking fees and consultants’
fees (in each case, including costs and disbursements), amounts required to
be
applied to the repayment of Indebtedness secured by a Lien expressly permitted
hereunder on any asset that is the subject of such Asset Sale or Recovery Event
(other than any Lien pursuant to the Guarantee and Collateral Agreement) and
other customary fees and expenses actually incurred in connection therewith
and
net of taxes paid or reasonably estimated to be payable as a result thereof
(after taking into account any available tax credits or deductions and any
tax
sharing arrangements).
“Total
Revolving Commitments”:
at any
time, the aggregate amount of the Revolving Commitments then in
effect.
“Total
Revolving Extensions of Credit”:
at any
time, the aggregate amount of the Revolving Extensions of Credit outstanding
at
such time.
“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.
“Wholly
Owned Subsidiary”:
as to
any Person, any other Person all of the Equity Interests of which (other than
(i) directors’ qualifying shares required by law or (ii) in the case of CC VIII,
LLC, the CCVIII Interest) are owned by such Person directly or through other
Wholly Owned Subsidiaries or a combination thereof.
“Wholly
Owned Subsidiary Guarantor”:
any
Subsidiary Guarantor that is a Wholly Owned Subsidiary of the Borrower;
provided
that,
notwithstanding the foregoing, each Qualified LaGrange Entity shall be treated
as a Wholly Owned Subsidiary Guarantor for purposes of Section 7.
1.2. Other
Definitional Provisions; Pro Forma Calculations.
(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) accounting terms relating
to
Holdings, the Borrower and its Subsidiaries not defined in Section 1.1 and
accounting terms partly defined in Section 1.1, to the extent not defined,
shall
have the respective meanings given to them under GAAP, (ii) the words “include”,
“includes” and “including” shall be deemed to be followed by the phrase “without
limitation”, (iii) the word “incur” shall be construed to mean incur, create,
issue, assume, become liable in respect of or suffer to exist (and the words
“incurred” and “incurrence” shall have correlative meanings), (iv) the words
“asset” and “property” shall be construed to have the same meaning and effect
and to refer to any and all tangible and intangible assets and properties,
including cash, Equity Interests, securities, revenues, accounts, leasehold
interests, contract rights and any other “assets” as such term is defined under
GAAP and (v) references to agreements or other Contractual Obligations shall,
unless otherwise specified, be deemed to refer to such agreements or Contractual
Obligations as amended, supplemented, restated or otherwise modified from time
to time.
24
(c) The
words
“hereof”, “herein” and “hereunder” and words of similar import when used in this
Agreement shall refer to this Agreement as a whole and not to any particular
provision of this Agreement, and Section, Schedule and Exhibit references are
to
this Agreement unless otherwise specified.
(d) The
meanings given to terms defined herein shall be equally applicable to both
the
singular and plural forms of such terms.
(e) For
the
purposes of calculating Annualized Operating Cash Flow, Annualized Pro Forma
Operating Cash Flow and Consolidated Operating Cash Flow for any period (a
“Test
Period”),
(i)
if at any time during the period (a “Pro
Forma Period”)
commencing on the second day of such Test Period and ending on the last day
of
such Test Period (or, in the case of any pro forma calculation made pursuant
hereto in respect of a particular transaction, ending on the date such
transaction is consummated and, unless otherwise expressly provided herein,
after giving effect thereto), the Borrower or any Subsidiary shall have made
any
Material Disposition, the Consolidated Operating Cash Flow for such Test Period
shall be reduced by an amount equal to the Consolidated Operating Cash Flow
(if
positive) attributable to the property which is the subject of such Material
Disposition for such Test Period or increased by an amount equal to the
Consolidated Operating Cash Flow (if negative) attributable thereto for such
Test Period; (ii) if, during such Pro Forma Period, the Borrower or any
Subsidiary shall have made a Material Acquisition and Consolidated Operating
Cash Flow for such Test Period shall be calculated after giving pro forma
effect
thereto (including the incurrence or assumption of any Indebtedness in
connection therewith) as if such Material Acquisition (and the incurrence or
assumption of any such Indebtedness) occurred on the first day of such Test
Period; and (iii) if, during such Pro Forma Period, any Person that subsequently
became a Subsidiary or was merged with or into the Borrower or any Subsidiary
during such Pro Forma Period shall have entered into any disposition or
acquisition transaction that would have required an adjustment pursuant to
clause (i) or (ii) above if made by the Borrower or a Subsidiary during such
Pro
Forma Period and Consolidated Operating Cash Flow for such Test Period shall
be
calculated after giving pro forma
effect
thereto as if such transaction occurred on the first day of such Test Period.
For the purposes of this paragraph, pro forma
calculations regarding the amount of income or earnings relating to any Material
Disposition or Material Acquisition shall in each case be determined in good
faith by a Responsible Officer of the Borrower. As used in this Section 1.2(e),
“Material Acquisition” means any acquisition of property or series of related
acquisitions of property that (i) constitutes assets comprising all or
substantially all of an operating unit of a business or constitutes all or
substantially all of the Equity Interests of a Person and (ii) involves the
payment of Consideration by the Borrower and its Subsidiaries in excess of
$1,000,000; and “Material Disposition” means any Disposition of property or
series of related Dispositions of property that yields gross proceeds to the
Borrower or any of its Subsidiaries in excess of $1,000,000.
(f) For
avoidance of doubt, in order to determine pursuant
to any provision of Section 7 that no Default or Event of Default results from
a
particular transaction, pro forma
compliance with Section 7.1 shall be required.
SECTION
2. AMOUNT
AND TERMS OF COMMITMENTS
2.1. Commitments.
(a)
Subject to the terms and conditions hereof, (i) each Existing Term Lender
severally agrees to maintain its “Term Loan” (as defined in the Existing Credit
Agreement) hereunder as an “Existing
Term Loan”,
(ii)
each New Term Lender severally agrees to make “New
Term Loans”
from
time to time pursuant to up to 5 borrowings during the period from the
Restatement Effective Date to and including April 30, 2007 in an aggregate
principal amount not to exceed its New Term Commitment and (iii) each
Incremental Term Lender severally agrees to make one or more term loans (each,
an “Incremental
Term Loan”)
to the
extent provided in Section 2.1(c). The Term Loans may
25
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) Subject
to the terms and conditions hereof, each Revolving Lender severally agrees
to
make revolving credit loans (“Revolving
Loans”)
to the
Borrower from time to time during the Revolving Commitment Period in an
aggregate principal amount at any one time outstanding which, when added to
such
Lender’s Revolving Percentage of the sum of (i) the L/C Obligations then
outstanding and (ii) the aggregate principal amount of the Swingline Loans
then
outstanding, does not exceed the amount of such Lender’s Revolving Commitment.
During the Revolving Commitment Period, the Borrower may use the Revolving
Commitments by borrowing, prepaying the Revolving Loans in whole or in part,
and
reborrowing, all in accordance with the terms and conditions hereof. The
Revolving 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.
(c) The
Borrower and any one or more Lenders (including New Lenders) may from time
to
time agree that such Lenders shall make Incremental Term Loans by executing
and
delivering to the Administrative Agent an Incremental Facility Activation Notice
specifying (i) the amount of such Incremental Term Loans, (ii) the
applicable Incremental Facility Closing Date, (iii) the applicable Incremental
Term Maturity Date, (iv) the amortization schedule for such Incremental
Term Loans, which shall comply with Section 2.3, (v) the Applicable
Margin for such Incremental Term Loans and (vi) the proposed original issue
discount applicable to such Incremental Term Loans, if any. Notwithstanding
the
foregoing, without the consent of the Required Lenders, (A) the aggregate amount
of borrowings of Incremental Term Loans shall not exceed $1,000,000,000, (B)
each increase effected pursuant to this paragraph shall be in a minimum amount
of at least $100,000,000, (C) no more than three Incremental Facility Closing
Dates may be selected by the Borrower after the Restatement Effective Date
and
(D) no Incremental Term 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.
(d) 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(c) 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 a borrowing hereunder, the Borrower shall give the
Administrative Agent a 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) (provided
that any
such Notice of Borrowing of ABR Loans under the Revolving Facility to finance
payments required by Section 3.5 may be given not later than 1:00 P.M. New
York
City time, on the date of the proposed borrowing), specifying (i) the
Facility under which such Loan is to be borrowed, (ii) the amount and Type
of Loans to be borrowed, (iii) the requested Borrowing Date and (iv) in the
case of Eurodollar Loans, the respective amounts of each such Type of Loan
and
the respective lengths of the initial Interest Period therefor. Each borrowing
shall be in an aggregate amount equal to (A) with respect to Revolving Loans,
(x) in the case of ABR Loans, $5,000,000 or a whole multiple of $1,000,000
in
excess thereof (or, if the then aggregate relevant Available Revolving
Commitments are less than $5,000,000, such lesser amount) and (y) in the case
of
Eurodollar Loans, $10,000,000 or a whole multiple of $1,000,000 in excess
thereof; provided,
that
the
26
Swingline
Lender may request, on behalf of the Borrower, borrowings under the Revolving
Commitments that are ABR Loans in other amounts pursuant to Section 2.5 and
(B)
with respect to New Term Loans, $100,000,000 or a whole multiple of $50,000,000
in excess thereof. Upon receipt of any Notice of Borrowing from the Borrower,
the Administrative Agent shall promptly notify each relevant Lender thereof.
Each relevant 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; provided
that, in
the event that any Lender fails to make available to the Administrative Agent
any portion of such amount prior to 12:30 P.M. New York City time on the
relevant Borrowing Date, the Borrower shall be deemed to have provided notice
to
the Swingline Lender in accordance with Section 2.5 requesting a Swingline
Loan
in an amount equal to the aggregate amount of any such shortfall, rounded
up to
the applicable whole multiple of $500,000 (but in no event exceeding, together
with all outstanding Swingline Loans, the Swingline Commitment). Such borrowing
(including any such Swingline Loan) 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
New
Term Loans of each Term Lender shall mature in 25 installments (each due on
the
last day of each calendar quarter, except for the last such installment),
commencing on March 31, 2008, each of which shall be in an amount equal to
such
Lender’s Term Percentage multiplied by (i) in the case of the first 24 such
installments, 0.25% of the sum of the aggregate principal amount of the New
Term
Loans borrowed under the New Term Commitments and (ii) in the case of the last
such installment (which shall be due on March 6, 2014), 94.0% of such sum or
the
remaining principal balance of all New Term Loans outstanding on such date
if
different.
(b)
The
Existing Term Loans of each Term Lender shall mature in 24 installments (each
due on the last day of each calendar quarter, except for the last such
installment), commencing on September 30, 2007, each of which shall be in an
amount equal to such Lender’s Term Percentage multiplied by (i) in the case of
the first 23 such installments, 0.25% of the sum of the aggregate principal
amount of the Existing Term Loans outstanding on the Restatement Effective
Date
and (ii) in the case of the last such installment (which shall be due on April
28, 2013), 94.25% of such sum or the remaining principal balance of all Existing
Term Loans outstanding on such date if different.
(c)
The
Incremental Term Loans of each Incremental Term Lender shall mature in
consecutive installments (which shall be no more frequent than quarterly) as
specified in the Incremental Facility Activation Notice pursuant to which such
Incremental Term Loans were made, provided
that,
prior to the final maturity of the Term Loans, the aggregate amount of such
installments for any four consecutive fiscal quarters shall not exceed 1% of
the
aggregate principal amount of such Incremental Term Loans on the date such
Loans
were first made.
(d)
The
Borrower shall repay all outstanding Revolving Loans and Swingline Loans on
the
Revolving Termination Date.
2.4. Swingline
Commitment.
Subject
to the terms and conditions hereof, the Swingline Lender agrees to make a
portion of the credit otherwise available to the Borrower under the Revolving
Commitments from time to time during the Revolving Commitment Period by making
swingline loans (“Swingline
Loans”)
to the
Borrower; provided
that (a)
the aggregate principal amount of Swingline Loans outstanding at any time shall
not exceed the Swingline Commitment then in
27
effect
(notwithstanding that the Swingline Loans outstanding at any time, when
aggregated with the Swingline Lender’s other outstanding Revolving Loans
hereunder, may exceed the Swingline Commitment then in effect) and (b) the
Borrower shall not request, and the Swingline Lender shall not make, any
Swingline Loan if, after giving effect to the making of such Swingline Loan,
the
aggregate amount of the Available Revolving Commitments would be less than
zero.
During the Revolving Commitment Period, the Borrower may use the Swingline
Commitment by borrowing, repaying and reborrowing, all in accordance with
the
terms and conditions hereof. Swingline Loans shall be ABR Loans
only.
2.5. Procedure
for Swingline Borrowing; Refunding of Swingline Loans.
(a)
Whenever the Borrower desires that the Swingline Lender make Swingline Loans
it
shall give the Swingline Lender irrevocable telephonic notice confirmed promptly
in writing (which telephonic notice must be received by the Swingline Lender
not
later than 1:00 P.M., New York City time, on the proposed Borrowing Date),
specifying (i) the amount to be borrowed and (ii) the requested Borrowing Date
(which shall be a Business Day during the Revolving Commitment Period). Each
borrowing under the Swingline Commitment shall be in an amount equal to
$1,000,000 or a whole multiple of $500,000 in excess thereof. Not later than
3:00 P.M., New York City time, on the Borrowing Date specified in a notice
in
respect of Swingline Loans, the Swingline Lender shall make available to the
Administrative Agent at the Funding Office an amount in immediately available
funds equal to the amount of the Swingline Loan to be made by the Swingline
Lender. The Administrative Agent shall make the proceeds of such Swingline
Loan
available to the Borrower on such Borrowing Date by depositing such proceeds
in
the account of the Borrower with the Administrative Agent on such Borrowing
Date
in immediately available funds.
(b) The
Swingline Lender, at any time and from time to time in its sole and absolute
discretion and in consultation with the Borrower (provided that the failure
to
so consult shall not affect the ability of the Swingline Lender to make the
following request) may, on behalf of the Borrower (which hereby irrevocably
directs the Swingline Lender to act on its behalf), on one Business Day’s notice
given by the Swingline Lender no later than 1:00 P.M., New York City time,
request each Revolving Lender to make, and each Revolving Lender hereby agrees
to make, a Revolving Loan, in an amount equal to such Revolving Lender’s
Restatement Percentage of the aggregate amount of the Swingline Loans (the
“Refunded
Swingline Loans”)
outstanding on the date of such notice, to repay the Swingline Lender. Each
Revolving Lender shall make the amount of such Revolving Loan available to
the
Administrative Agent at the Funding Office in immediately available funds,
not
later than 12:00 Noon, New York City time, one Business Day after the date
of
such notice. The proceeds of such Revolving Loans shall be immediately made
available by the Administrative Agent to the Swingline Lender for application
by
the Swingline Lender to the repayment of the Refunded Swingline Loans. The
Borrower irrevocably authorizes the Swingline Lender to charge the Borrower’s
accounts with the Administrative Agent (up to the amount available in each
such
account) in order to immediately pay the amount of such Refunded Swingline
Loans
to the extent amounts received from the Revolving Lenders are not sufficient
to
repay in full such Refunded Swingline Loans.
(c) If
prior
to the time a Revolving Loan would have otherwise been made pursuant to Section
2.5(b), one of the events described in Section 8(g) shall have occurred and
be
continuing with respect to the Borrower or if for any other reason, as
determined by the Swingline Lender in its sole discretion, Revolving Loans
may
not be made as contemplated by Section 2.5(b), each Revolving Lender shall,
on
the date such Revolving Loan was to have been made pursuant to the notice
referred to in Section 2.5(b), purchase for cash an undivided participating
interest in the then outstanding Swingline Loans by paying to the Swingline
Lender an amount (the “Swingline
Participation Amount”)
equal
to (i) such Revolving Lender’s Revolving Percentage times
(ii) the
sum of the aggregate principal amount of Swingline Loans then outstanding that
were to have been repaid with such Revolving Loans.
(d) Whenever,
at any time after the Swingline Lender has received from any Revolving Lender
such Lender’s Swingline Participation Amount, the Swingline Lender receives any
payment on account of the Swingline Loans, the Swingline Lender will distribute
to such Lender its Swingline
28
Participation
Amount (appropriately adjusted, in the case of interest payments, to reflect
the
period of time during which such Lender’s participating interest was outstanding
and funded and, in the case of principal and interest payments, to reflect
such
Lender’s pro rata
portion
of such payment if such payment is not sufficient to pay the principal of
and
interest on all Swingline Loans then due); provided,
however,
that in
the event that such payment received by the Swingline Lender is required
to be
returned, such Revolving Lender will return to the Swingline Lender any portion
thereof previously distributed to it by the Swingline Lender.
(e) Each
Revolving Lender’s obligation to make the Loans referred to in Section 2.5(b)
and to purchase participating interests pursuant to Section 2.5(c) shall be
absolute and unconditional and shall not be affected by any circumstance,
including (i) any setoff, counterclaim, recoupment, defense or other right
that
such Revolving Lender or the Borrower may have against the Swingline Lender,
the
Borrower or any other Person for any reason whatsoever; (ii) the occurrence
or
continuance of a Default or an Event of Default or the failure to satisfy any
of
the other conditions specified in Section 5; (iii) any adverse change in the
condition (financial or otherwise) of the Borrower; (iv) any breach of this
Agreement or any other Loan Document by the Borrower, any other Loan Party
or
any other Revolving Lender; or (v) any other circumstance, happening or event
whatsoever, whether or not similar to any of the foregoing.
2.6. Commitment
Fees, Etc.
(a)
The
Borrower agrees to pay to the Administrative Agent for the account of each
Revolving Lender a nonrefundable commitment fee through the last day of the
Revolving Commitment Period computed at 0.50% per annum on the average daily
amount of the Available Revolving Commitment, payable quarterly in arrears
on
the last day of each March, June, September and December and on the Revolving
Termination Date.
(b) The
Borrower agrees to pay to the Administrative Agent the fees in the amounts
and
on the dates previously agreed to in writing by the Borrower and the
Administrative Agent.
2.7. Termination
or Reduction of Commitments.
The
Borrower shall have the right, upon notice delivered to the Administrative
Agent
no later than 1:00 P.M., New York City time, at least three Business Days prior
to the proposed date of termination or reduction, to terminate the Revolving
Commitments or, from time to time, to reduce the amount of the Revolving
Commitments; provided
that no
such termination or reduction shall be permitted if, after giving effect thereto
and to any prepayments of the Revolving Loans or Swingline Loans made on the
effective date thereof, the Total Revolving Extensions of Credit would exceed
the Total Revolving Commitments. Any such reduction shall be in an amount equal
to $10,000,000, or a whole multiple of $1,000,000 in excess thereof, shall
reduce permanently the Revolving Commitments then in effect and shall be applied
pro rata
to the
scheduled reductions 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, the
consummation of a particular Disposition 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 effective date) if such
condition is not satisfied.
2.8. Optional
Prepayments.
(a) The
Borrower may at any time and from time to time prepay the Loans, in whole or
in
part, without premium or penalty, 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 no 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,
29
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 (except in the case
of
Revolving Loans that are ABR Loans and Swingline Loans) accrued interest
to such
date on the amount prepaid. Optional prepayments of the Existing Term Loans
made
prior to April 28, 2007 with the proceeds of a substantially concurrent issuance
or incurrence of new term loans or other syndicated financing (which shall
be
deemed to have occurred in the event of any repricing of the Existing Term
Loans
hereunder) shall be accompanied by a prepayment fee, for the account of the
Existing Term Lenders, equal to 1.0% of the amount so prepaid. Partial
prepayments of Term Loans and Revolving Loans shall be in an aggregate principal
amount of $5,000,000 or a whole multiple of $1,000,000 in excess thereof.
Partial prepayments of Swingline Loans shall be in an aggregate principal
amount
of $1,000,000 or a whole multiple of $500,000 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, the consummation of a particular
Disposition 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.
(b)
All
voluntary prepayments of Term Loans (other than Existing Term Loans) effected
on
or prior to the first anniversary of the Restatement Effective Date, in each
case with the proceeds of a substantially concurrent incurrence or issuance
of
term loans pursuant to this Agreement or otherwise (excluding a refinancing
of
all of the Facilities outstanding under this Agreement in connection with
another transaction not permitted by this Agreement (as determined prior to
giving effect to any amendment or waiver of this Agreement being adopted in
connection with such transaction), provided
that the
primary purpose of such transaction is not to refinance Indebtedness hereunder
at an Applicable Margin or similar interest rate spread more favorable to the
Borrower), shall be accompanied by a prepayment fee equal to 1.00% of the
aggregate amount of such prepayments if the Applicable Margin or similar
interest rate spread applicable to such new loans is or, upon the satisfaction
of conditions provided for in the documentation governing such new loans, would
be, less than the Applicable Margin applicable to the Term Loans being prepaid.
For purposes of this paragraph (b), a prepayment of the Term Loans shall be
deemed to have occurred in the event of any repricing thereof.
2.9. Mandatory
Prepayments.
(a) If
on any date the Borrower or any of its Subsidiaries shall receive Net Cash
Proceeds from any Asset Sale or Recovery Event then, with respect to an amount
equal to 75% of such Net Cash Proceeds (“Allocated
Proceeds”;
provided
that the
Borrower or such Subsidiary may instead deem a portion of such Net Cash Proceeds
equal to the first 75% of the Total Net Proceeds to the Borrower or such
Subsidiary from such Asset Sale or Recovery Event, when and as received, to
be
the Allocated Proceeds of such Asset Sale or Recovery Event), (i) if such
Allocated Proceeds are not Reinvestment Proceeds, such Allocated Proceeds shall
be applied on the fifth Business Day after the date such proceeds are received
toward the prepayment of the Term Loans or (ii) if such Allocated Proceeds
are
Reinvestment Proceeds, on each Reinvestment Prepayment Date, an amount equal
to
the relevant Reinvestment Prepayment Amount shall be applied toward the
prepayment of the Term Loans.
(b)
The
application of any prepayment pursuant to this Section 2.9 shall be made
first,
to ABR
Loans and, second,
to
Eurodollar Loans. 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 two 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
30
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 fifteen 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) (i)
If
all or a portion of the principal amount of any Loan or Reimbursement Obligation
shall not be paid when due (whether at the stated maturity, by acceleration
or
otherwise), all outstanding Loans and Reimbursement Obligations (whether or
not
overdue) shall bear interest at a rate per annum equal to (x) in the case of
the
Loans, the rate that would otherwise be applicable thereto pursuant to the
foregoing provisions of this Section plus
2% or
(y) in the case of Reimbursement Obligations, the rate applicable to ABR Loans
under the Revolving Facility plus
2%, and
(ii) if all or a portion of any interest payable on any Loan or Reimbursement
Obligation or any commitment fee or other amount payable hereunder shall not
be
paid when due (whether at the stated maturity, by acceleration or otherwise),
such overdue amount shall bear interest at a rate per annum equal to the rate
then applicable to ABR Loans under the relevant Facility plus
2% (or,
in the case of any such other amounts that do not relate to a particular
Facility, the rate then applicable to ABR Loans under the Revolving Facility
plus
2%), in
each case, with respect to clauses (i) and (ii) above, from the date of such
non-payment until such amount is 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
31
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 or the Eurocurrency Reserve Requirements
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 Majority Facility
Lenders in respect of the relevant Facility 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 Loans under the relevant Facility requested
to be made on the first day of such Interest Period shall be made as ABR Loans,
(y) any Loans under the relevant Facility 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 under the relevant
Facility 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 under the relevant Facility shall be made
or
continued as such, nor shall the Borrower have the right to convert Loans under
the relevant Facility to Eurodollar Loans.
2.15. Pro
Rata Treatment and Payments.
(a)
Each borrowing by the Borrower from the Revolving Lenders hereunder, each
payment by the Borrower on account of any commitment fee in respect of the
Revolving Commitments and any reduction of the Revolving Commitments shall
be
made pro rata
according to the Revolving Commitments of the Revolving Lenders. Each borrowing
by the Borrower from the New Term Lenders hereunder shall be made pro rata
according to the New Term Commitments of the New Term Lenders.
(b) Each
payment (including each prepayment) by the Borrower on account of principal
of
and interest on the Term Loans shall be made pro rata
according to the respective outstanding principal amounts of the Term Loans
then
held by the Term Lenders. The amount of each principal prepayment of the Term
Loans shall be applied to reduce the then remaining installments of the Term
Loans pro rata
based
upon the then remaining principal amount of such installments. Amounts repaid
or
prepaid on account of the Term Loans may not be reborrowed.
32
(c) Each
payment (including each prepayment) by the Borrower on account of principal
of
and interest on the Revolving Loans shall be made pro rata
according to the respective outstanding principal amounts of the Revolving
Loans
then held by the Revolving Lenders.
(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 the 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 under the
relevant Facility, 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 Restatement Effective
Date:
33
(i) shall
subject any Lender to any tax of any kind whatsoever with respect to this
Agreement, any Letter of Credit, any Application 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 issuing or participating in
Letters of Credit, 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 Restatement 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 or under or in respect of any Letter of Credit 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
34
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
35
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 from
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
36
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, and (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. 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. LETTERS
OF CREDIT
3.1. L/C
Commitment.
(a)
Subject to the terms and conditions hereof, each Issuing Lender, in reliance
on
the agreements of the other Revolving Lenders set forth in Section 3.4(a),
agrees to
37
issue
letters of credit (“Letters
of Credit”)
for
the account of the Borrower on any Business Day during the Revolving Commitment
Period in such form as may be approved from time to time by such Issuing
Lender;
provided
that no
Issuing Lender shall issue any Letter of Credit if, after giving effect to
such
issuance, (i) the L/C Obligations would exceed the L/C Commitment or (ii)
the
aggregate amount of the Available Revolving Commitments would be less than
zero.
Each Letter of Credit shall (i) be denominated in Dollars, (ii) unless otherwise
agreed by the Administrative Agent and the relevant Issuing Lender, have
a face
amount of at least $5,000 and (iii) expire no later than the earlier of (x)
the
first anniversary of its date of issuance and (y) the date that is five Business
Days prior to the Revolving Termination Date, provided
that any
Letter of Credit with a one-year term may provide for the renewal thereof
for
additional one-year periods (which shall in no event extend beyond the date
referred to in clause (y) above). It is understood that the letters of credit
listed on Schedule 3.1 shall constitute “Letters of Credit” for the purposes of
this Agreement and shall be deemed to have been issued under this
Agreement.
(b) No
Issuing Lender shall be obligated to issue any Letter of Credit hereunder if
such issuance would conflict with, or cause such Issuing Lender or any L/C
Participant to exceed any limits imposed by, any applicable Requirement of
Law.
3.2. Procedure
for Issuance of Letter of Credit.
The
Borrower may from time to time request that any Issuing Lender issue a Letter
of
Credit by delivering to such Issuing Lender an Application therefor, completed
to the satisfaction of such Issuing Lender, and such other certificates,
documents and other papers and information as such Issuing Lender may request.
Upon receipt of any Application, the relevant Issuing Lender will process such
Application and the certificates, documents and other papers and information
delivered to it in connection therewith in accordance with its customary
procedures and shall promptly issue the Letter of Credit requested thereby
(but
in no event shall such Issuing Lender be required to issue any Letter of Credit
earlier than three (3) Business Days after its receipt of the Application
therefor and all such other certificates, documents and other papers and
information relating thereto) by issuing the original of such Letter of Credit
to the beneficiary thereof or as otherwise may be agreed to by such Issuing
Lender and the Borrower. The relevant Issuing Lender shall furnish a copy of
such Letter of Credit to the Borrower promptly following the issuance thereof.
The relevant Issuing Lender shall promptly furnish to the Administrative Agent,
which shall in turn promptly furnish to the Lenders, notice of the issuance
of
each Letter of Credit (including the amount thereof).
3.3. Fees
and Other Charges.
(a) The
Borrower will pay a fee on all outstanding Letters of Credit at a per annum
rate
equal to the Applicable Margin then in effect with respect to Eurodollar Loans
under the Revolving Facility, shared ratably among the Revolving Lenders and
payable quarterly in arrears on each L/C Fee Payment Date after the issuance
date. In addition, the Borrower shall pay to the relevant Issuing Lender for
its
own account a fronting fee at a per annum rate of 0.125% or a lower rate
separately agreed between the Borrower and such Issuing Lender on the undrawn
and unexpired amount of each Letter of Credit issued by such Issuing Lender,
payable quarterly in arrears on each L/C Fee Payment Date after the relevant
issuance date.
(b) In
addition to the foregoing fees, unless otherwise agreed by the relevant Issuing
Lender, the Borrower shall pay or reimburse each Issuing Lender for such normal
and customary costs and expenses as are incurred or charged by such Issuing
Lender in issuing, negotiating, effecting payment under, amending or otherwise
administering any Letter of Credit issued by it.
3.4. L/C
Participations.
(a)
Each Issuing Lender irrevocably agrees to grant and hereby grants to each L/C
Participant, and, to induce the Issuing Lenders to issue Letters of Credit
hereunder, each L/C Participant irrevocably agrees to accept and purchase and
hereby accepts and purchases from
38
each
Issuing Lender, on the terms and conditions hereinafter stated, for such
L/C
Participant’s own account and risk an undivided interest equal to such L/C
Participant’s Revolving Percentage in each Issuing Lender’s obligations and
rights under each Letter of Credit issued by it hereunder and the amount
of each
draft paid by such Issuing Lender thereunder. Each L/C Participant
unconditionally and irrevocably agrees with each Issuing Lender that, if
a draft
is paid under any Letter of Credit issued by such Issuing Lender for which
such
Issuing Lender is not reimbursed in full by the Borrower in accordance with
the
terms of this Agreement, such L/C Participant shall pay to such Issuing Lender
upon demand an amount equal to such L/C Participant’s Revolving Percentage of
the amount of such draft, or any part thereof, that is not so reimbursed.
Each
L/C Participant’s obligation to make such payment to such Issuing Lender as
contemplated by this Section 3.4(a), shall be absolute and unconditional
and
shall not be affected by any circumstance, including (A) any setoff,
counterclaim, recoupment, defense or other right which such Lender may have
against such Issuing Lender, the Borrower or any other Person for any reason
whatsoever, (B) the occurrence or continuance of a Default or Event of Default,
or (C) any other occurrence, event or condition, whether or not similar to
any
of the foregoing. No such payment by any L/C Participant shall relieve or
otherwise impair the obligation of the Borrower to reimburse such Issuing
Lender
for the amount of any payment made by such Issuing Lender under any Letter
of
Credit, together with interest as provided herein.
(b) If
any
amount required to be paid by any L/C Participant to any Issuing Lender pursuant
to Section 3.4(a) in respect of any unreimbursed portion of any payment made
by
such Issuing Lender under any Letter of Credit is paid to such Issuing Lender
within three (3) Business Days after the date such payment is due, such L/C
Participant shall pay to such Issuing Lender on demand an amount equal to the
product of (i) such amount, times (ii) the daily average Federal Funds Effective
Rate during the period from and including the date such payment is required
to
the date on which such payment is immediately available to such Issuing Lender,
times (iii) a fraction the numerator of which is the number of days that elapse
during such period and the denominator of which is 360. If any such amount
required to be paid by any L/C Participant pursuant to Section 3.4(a) is not
made available to the relevant Issuing Lender by such L/C Participant within
three (3) Business Days after the date such payment is due, such Issuing Lender
shall be entitled to recover from such L/C Participant, on demand, such amount
with interest thereon calculated from such due date at the rate per annum
applicable to ABR Loans under the Revolving Facility. A certificate of the
relevant Issuing Lender submitted to any L/C Participant with respect to any
amounts owing under this Section shall be conclusive in the absence of manifest
error.
(c) Whenever,
at any time after the relevant Issuing Lender has made payment under any Letter
of Credit and has received from any L/C Participant its pro rata
share of
such payment in accordance with Section 3.4(a), such Issuing Lender receives
any
payment related to such Letter of Credit (whether directly from the Borrower
or
otherwise, including proceeds of collateral applied thereto by such Issuing
Lender), or any payment of interest on account thereof, such Issuing Lender
will
distribute to each L/C Participant its pro rata
share
thereof; provided,
however,
that in
the event that any such payment received by such Issuing Lender shall be
required to be returned by such Issuing Lender, such L/C Participant shall
return to such Issuing Lender the portion thereof previously distributed by
such
Issuing Lender to it.
3.5. Reimbursement
Obligation of the Borrower.
If any
draft is paid under any Letter of Credit, the Borrower shall reimburse the
relevant Issuing Lender for the amount of (a) the draft so paid and (b) any
taxes, fees, charges or other costs or expenses incurred by such Issuing Lender
in connection with such payment, not later than 1:00 P.M., New York City time,
on the Business Day immediately following the day that the Borrower receives
notice of payment of such draft. Each such payment shall be made to the relevant
Issuing Lender in lawful money of the United States and in immediately available
funds. Interest shall be payable on any and all amounts remaining unpaid by
the
Borrower under this Section from the date such amounts become payable (whether
at stated maturity, by acceleration or
39
otherwise)
(or from the date the relevant draft is paid, if notice thereof is received
by
the Borrower prior to 10:00 A.M., New York City time, on such date) until
payment in full at the rate set forth in (i) until the second Business Day
following the date of the applicable drawing, Section 2.12(b) and (ii)
thereafter, Section 2.12(c).
3.6. Obligations
Absolute.
The
Borrower’s obligations under this Section 3 shall be absolute and unconditional
under any and all circumstances and irrespective of any setoff, counterclaim
or
defense to payment that the Borrower may have or have had against any Issuing
Lender, any beneficiary of a Letter of Credit or any other Person. The Borrower
also agrees with each Issuing Lender and L/C Participant that no Issuing Lender
or L/C Participant shall be responsible for, and the Borrower’s Reimbursement
Obligations under Section 3.5 shall not be affected by, among other things,
the
validity or genuineness of documents or of any endorsements thereon, even though
such documents shall in fact prove to be invalid, fraudulent or forged, or
any
dispute between or among the Borrower and any beneficiary of any Letter of
Credit or any other party to which such Letter of Credit may be transferred
or
any claims whatsoever of the Borrower against any beneficiary of such Letter
of
Credit or any such transferee. No Issuing Lender shall be liable for any error,
omission, interruption or delay in transmission, dispatch or delivery of any
message or advice, however transmitted, in connection with any Letter of Credit,
except for errors or omissions found by a final non-appealable decision of
a
court of competent jurisdiction to have resulted from the gross negligence
or
willful misconduct of the relevant Issuing Lender. The Borrower agrees that
any
action taken or omitted by any Issuing Lender under or in connection with any
Letter of Credit or the related drafts or documents, if done in the absence
of
gross negligence or willful misconduct and in accordance with the standards
of
care specified in the New York UCC, shall be binding on the Borrower and shall
not result in any liability of any Issuing Lender to the Borrower.
3.7. Letter
of Credit Payments.
If any
draft shall be presented for payment under any Letter of Credit, the relevant
Issuing Lender shall promptly notify the Borrower of the date and amount
thereof. The responsibility of each Issuing Lender to the Borrower in connection
with any draft presented for payment under any Letter of Credit shall, in
addition to any payment obligation expressly provided for in such Letter of
Credit, be limited to determining that the documents (including each draft)
delivered under such Letter of Credit in connection with such presentment are
substantially in conformity with such Letter of Credit.
3.8. Applications.
To the
extent that any provision of any Application related to any Letter of Credit
is
inconsistent with the provisions of this Section 3, the provisions of this
Section 3 shall apply.
SECTION
4. REPRESENTATIONS
AND WARRANTIES
To
induce
the Administrative Agent and the Lenders to enter into this Agreement and to
make the Loans and issue or participate in the Letters of Credit, Holdings
and
the Borrower hereby jointly and severally represent and warrant 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
40
and
its
Subsidiaries do not have any material Guarantee Obligations, 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.
Each of
Holdings, the Borrower and its Subsidiaries (a) except in the case of any Shell
Subsidiary and any former Shell Subsidiary until it becomes a Loan Party
pursuant to Section 6.9, 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.
Each
Loan Party has the power and authority, and the legal right, to make, deliver
and perform the Loan Documents to which it is a party and, in the case of the
Borrower, to borrow hereunder. Each Loan Party has taken all necessary action
to
authorize the execution, delivery and performance of the Loan Documents to
which
it is a party and, in the case of the Borrower, 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 borrowings
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 each Loan Party
party
thereto. This Agreement constitutes, and each other Loan Document upon execution
will constitute, a valid and legally binding obligation of each Loan Party
party
thereto, enforceable against each such Loan Party 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 issuance of Letters of Credit, 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 Guarantee and Collateral Agreement or
permitted by Section 7.3(g) or (o)).
4.6. Litigation.
No
litigation, investigation or proceeding of or before any arbitrator or
Governmental Authority is pending or, to the knowledge of Holdings or the
Borrower, threatened by or against Holdings, 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.
None of
Holdings, the Borrower or any of its Subsidiaries is in default under or with
respect to any of its Contractual Obligations in any respect that could
reasonably be
41
expected
to have a Material Adverse Effect. No Default or Event of Default has occurred
and is continuing.
4.8. Ownership
of Property; Liens.
Each of
Holdings, the Borrower and 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
7.3.
4.9. Intellectual
Property.
Each of
Holdings, 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 Holdings, 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.
Each of
Holdings, 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 Holdings, 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
Holdings,
the Borrower or any of its Subsidiaries pending or, to the knowledge of
Holdings
or the Borrower, threatened; (b) hours worked by, and payment made to, employees
of Holdings,
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 Holdings, 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 Holdings,
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
42
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 any Loan Party 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 any Loan Party nor, to any Loan Party’s knowledge, any Commonly
Controlled Entity would become subject to any material liability under ERISA
if
any Loan Party 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 any Loan Party or any Commonly Controlled Entity is in Reorganization
or
Insolvent.
4.14. Investment
Company Act; Other Regulations.
No Loan
Party is an “investment company”, or a company “controlled” by an “investment
company”, within the meaning of the Investment Company Act of 1940, as amended.
No Loan Party is 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 Restatement Effective Date and, following the Restatement Effective Date,
as
of the date of the most recently delivered Compliance Certificate pursuant
to
Section 6.2(b), (a)
Schedule 4.15 (as modified by such Compliance Certificate) 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 Holdings,
the Borrower and each of the Borrower’s Subsidiaries, and (b) except as set
forth on Schedule 4.15 (as modified by such Compliance Certificate), 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.
4.16. Use
of
Proceeds.
The
proceeds of the Revolving Loans and New Term Loans, and the Letters of Credit,
shall be used for general purposes, including to finance permitted Investments
and permitted distributions to redeem Indebtedness of parent companies of the
Borrower.
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 Holdings, 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
Holdings, 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 Holdings,
the Borrower or any of its Subsidiaries (the “Business”),
nor
does
Holdings
or 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
43
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 Holdings
and the Borrower, threatened, under any Environmental Law to which Holdings,
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 Holdings,
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
Holdings, the Borrower nor any of its respective 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)
Holdings, 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
Holdings, 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 Holdings
or the Borrower, threatened, any action by the FCC to revoke, cancel, suspend
or
refuse to renew any FCC License held by Holdings,
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 Holdings
and the Borrower, threatened, any notice of any hearing, violation or complaint
against Holdings,
the Borrower or any of its Subsidiaries with respect to the operation of any
portion of the CATV Systems and
neither Holdings nor the Borrower has any 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,
44
the
Confidential Information Memorandum or any other document, certificate or
statement furnished by or on behalf of any Loan Party 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 any Loan Party (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
Guarantee and Collateral Agreement is effective to create or continue, as
applicable, in favor of the Administrative Agent, for the benefit of the Secured
Parties (as defined in the Guarantee and Collateral Agreement), 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 Guarantee and Collateral Agreement, when certificates
representing such Pledged Stock are delivered to the Administrative Agent,
and
in the case of the other Collateral described in the Guarantee and Collateral
Agreement, when financing statements in appropriate form are filed in the
offices specified on Schedule 4.20(a), the Guarantee and Collateral
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 Guarantee
and Collateral Agreement), in each case prior and superior in right to any
other
Person, other than with respect to Liens not prohibited by Section 7.3.
(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, each of Holdings, 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 Restatement Effective Date.
The
effectiveness of this Agreement is subject to the satisfaction of the following
conditions precedent:
(a)
Lender
Addenda.
The
Administrative Agent shall have received executed
Addenda
from the requisite Lenders
necessary to authorize the Administrative Agent to enter into this Agreement
on
behalf of the Lenders.
45
(b) Credit
Agreement; Guarantee and Collateral Agreement.
This
Agreement shall have been executed and delivered by the Agents, Holdings and
the
Borrower. The Guarantee and Collateral Agreement shall have been executed and
delivered by Holdings, the Borrower and the Subsidiary Guarantors.
(c) 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 Restatement Effective Date.
(d) Solvency
Certificate.
The
Administrative Agent shall have received a solvency certificate of the Borrower
dated the Restatement Effective Date, reasonably satisfactory to the
Administrative Agent.
(e) Legal
Opinions.
On
the
Restatement Effective Date, the Administrative Agent shall have received the
legal opinion of Gibson, Dunn & Crutcher LLP, counsel to Holdings and the
Borrower, which opinion shall be in form and substance reasonably satisfactory
to the Administrative Agent.
(f) Filings.
To the
extent not already filed, Uniform Commercial Code financing
statements required by the Guarantee and Collateral 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
7.3 (other than pursuant to Section 7.3(o)), shall be in proper form for
filing.
(g) Pledged
Stock; Stock Powers; Pledged Notes.
To the
extent not already delivered, the Administrative Agent shall have received
(i) the certificates representing the Equity Interests (constituting
securities within the meaning of Section 8-102(a)(15) of the New York UCC)
pledged pursuant to the Guarantee and Collateral Agreement, together with an
undated power or assignment for each such certificate executed in blank by
a
duly authorized officer of the pledgor thereof, and (ii) each promissory
note (if any) pledged pursuant to the Guarantee and Collateral Agreement
endorsed (without recourse) in blank (or accompanied by an executed transfer
form in blank) by the pledgor thereof.
(h) Closing
Certificate; Certified Certificate of Incorporation; Good Standing
Certificates.
The
Administrative Agent shall have received (i) a certificate of each Loan
Party, dated the Restatement Effective Date, substantially in the form of
Exhibit C, with appropriate insertions and attachments and (ii) a good
standing certificate for each Loan Party from its jurisdiction of
organization.
5.2. Conditions
to Each Extension of Credit.
The
agreement of each Lender to make any extension of credit requested to be made
by
it on any date (including its initial extension of credit) is subject to the
satisfaction of the following conditions precedent:
(a) Representations
and Warranties.
Each of
the representations and warranties made by any Loan Party 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).
46
(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.
Each
borrowing by and issuance of a Letter of Credit on behalf of the Borrower
hereunder shall constitute a representation and warranty by the Borrower as of
the date of such extension of credit that the conditions contained in this
Section 5.2 have been satisfied.
SECTION
6. AFFIRMATIVE
COVENANTS
Holdings
and the Borrower hereby agree that, so long as the Commitments remain in effect,
any Letter of Credit remains outstanding or any Loan or other amount is owing
to
any Lender or any Agent hereunder, each of Holdings and the Borrower shall,
and shall cause each Subsidiary of the Borrower to:
6.1. Financial
Statements.
Furnish
to the Lenders through the Administrative Agent (including by means of
IntraLinks or any similar posting):
(a) as
soon
as available, but in any event within 90 days after the end of each fiscal
year
of the Borrower, a copy of the audited consolidated balance sheet of the
Borrower and its consolidated Subsidiaries as at the end of such year and the
related audited consolidated statements of income and of cash flows for such
year, setting forth in each case in comparative form the figures for the
previous year, reported on without a “going concern” or like qualification or
exception, or qualification arising out of the scope of the audit, by KPMG
or
other independent certified public accountants of nationally recognized
standing; and
(b) as
soon
as available, but in any event not later than 45 days after the end of each
of
the first three quarterly periods of each fiscal year of the Borrower, the
unaudited consolidated balance sheets of the Borrower and its consolidated
Subsidiaries as at the end of such quarter and the related unaudited
consolidated statements of income and of cash flows for such quarter and the
portion of the fiscal year through the end of such quarter, setting forth in
each case in comparative form the figures for the previous year, certified
by a
Responsible Officer as being fairly stated in all material respects (subject
to
normal year-end audit adjustments and the absence of footnotes).
All
such
financial statements shall be complete and correct in all material respects
and
shall be prepared in reasonable detail and in accordance with GAAP applied
consistently throughout the periods reflected therein and with prior periods
(i)
except as approved by such accountants or officer, as the case may be, and
disclosed therein, and (ii) except that the consolidated statements of the
Borrower and its consolidated Subsidiaries described above will not include
the
balance sheet and financial results of the Non-Recourse
Subsidiaries.
6.2. Certificates;
Other Information.
Furnish
to the Lenders through the Administrative Agent (including by means of
IntraLinks or any similar posting) (or, in the case of clause (d) below, to
the
relevant Lender):
(a) concurrently
with the delivery of the financial statements referred to in Section 6.1(a),
a
certificate of the independent certified public accountants reporting on such
financial statements stating that in making the examination necessary therefor
no knowledge was obtained of any Default or Event of Default under Section
7.1,
except as specified in such certificate;
47
(b) concurrently
with the delivery of any financial statements pursuant to Section 6.1, (i)
a
certificate of a Responsible Officer stating that, to the best of each such
Responsible Officer’s knowledge, each Loan Party during such period has observed
or performed all of its covenants and other agreements, and satisfied every
condition, contained in this Agreement and the other Loan Documents to which
it
is a party to be observed, performed or satisfied by it, and that such
Responsible Officer has obtained no knowledge of any Default or Event of Default
except as specified in such certificate and (ii) a Compliance Certificate
containing all information and calculations necessary for determining compliance
by Holdings, the Borrower and its Subsidiaries with the provisions of this
Agreement referred to therein as of the last day of the fiscal quarter or fiscal
year of the Borrower, as the case may be;
(c) as
soon
as available, and in any event no later than 60 days after the end of each
fiscal year of the Borrower, a budget for the following fiscal year (which
shall
include projected Consolidated Operating Cash Flow and budgeted capital
expenditures), and, as soon as available, material revisions, if any, of such
budget with respect to such fiscal year (collectively, the “Budget”),
which
Budget shall in each case be accompanied by a certificate of a Responsible
Officer stating that such Budget is based upon good faith estimates and
assumptions believed by such Responsible Officer to be reasonable at the time
made, it being recognized by the Lenders that any financial information
contained therein 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; and
(d) promptly,
such additional financial and other information as any Lender may from time
to
time reasonably request.
6.3. Payment
of Obligations.
Pay,
discharge or otherwise satisfy at or before maturity or before they become
delinquent, as the case may be, all its obligations of whatever nature, except
where failure to do so could not reasonably be expected to have a Material
Adverse Effect or where the amount or validity thereof is currently being
contested in good faith by appropriate proceedings and reserves in conformity
with GAAP with respect thereto have been provided on the books of Holdings,
the
Borrower or its Subsidiaries, as the case may be.
6.4. Maintenance
of Existence; Compliance.
(a) (i)
Other than with respect to Shell Subsidiaries, preserve, renew and keep in
full
force and effect its existence and (ii) take all reasonable action to maintain
all rights, privileges and franchises necessary or desirable in the normal
conduct of its business, except, in each case, as otherwise permitted by Section
7.4 and except, in the case of clause (ii) above, to the extent that failure
to
do so could not reasonably be expected to have a Material Adverse Effect; and
(b) comply with all Contractual Obligations and Requirements of Law except
to
the extent that failure to comply therewith could not, in the aggregate,
reasonably be expected to have a Material Adverse Effect.
6.5. Maintenance
of Property; Insurance.
(a)
Except as in the aggregate could not reasonably be expected to have a Material
Adverse Effect, keep all property useful and necessary in its business in good
working order and condition, ordinary wear and tear excepted, and
(b) maintain with financially sound and reputable insurance companies
insurance on all its material property in at least such amounts and against
at
least such risks (but including in any event public liability, product liability
and business interruption) as are usually insured against in the same general
geographic area by companies engaged in the same or a similar
business.
48
6.6. Inspection
of Property; Books and Records; Discussions.
(a)
Keep
proper books of records and account in which full, true and correct entries
in
conformity with GAAP and all Requirements of Law shall be made of all material
dealings and transactions in relation to its business and activities and (b)
permit representatives of
any
Lender, coordinated through the Administrative Agent, to visit and inspect
any
of its properties and examine and make abstracts from any of its books and
records at any reasonable time and as often as may reasonably be desired and
to
discuss the business, operations, properties and financial and other condition
of Holdings, the Borrower and its Subsidiaries with officers and employees
of
Holdings, the Borrower and its Subsidiaries and with its independent certified
public accountants.
6.7. Notices.
Promptly give notice to the Lenders through the Administrative Agent (including
by means of IntraLinks or any similar posting) of:
(a) the
occurrence of any Default or Event of Default;
(b) any
(i)
default or event of default under any Contractual Obligation of Holdings, the
Borrower or any of its Subsidiaries or (ii) litigation, investigation or
proceeding that may exist at any time between Holdings, the Borrower or any
of
its Subsidiaries and any Governmental Authority, that, in either case, could
reasonably be expected to have a Material Adverse Effect;
(c) any
litigation or proceeding commenced against Holdings, the Borrower or any of
its
Subsidiaries which could reasonably be expected to result in a liability of
$50,000,000 or more to the extent not covered by insurance or which could
reasonably be expected to have a Material Adverse Effect;
(d) the
following events: (i) the occurrence of any Reportable Event with respect to
any
Plan, a failure to make any required contribution to a Plan, the creation of
any
Lien in favor of the PBGC or a Plan or any withdrawal from, or the termination,
Reorganization or Insolvency of, any Multiemployer Plan, (ii) the institution
of
proceedings or the taking of any other action by the PBGC or any Loan Party
or
any Commonly Controlled Entity or any Multiemployer Plan with respect to the
withdrawal from, or the termination, Reorganization or Insolvency of, any Plan
or (iii) within five Business Days after the receipt thereof by any Loan Party
or any Commonly Controlled Entity, a copy of any notice from the PBGC stating
its intention to terminate a Plan or to have a trustee appointed to administer
any Plan;
(e) any
determination by the Borrower to treat the Loans and/or Letters of Credit as
being a “reportable transaction” (within the meaning of Treasury Regulation
Section 1.6011-4), and promptly thereafter, the Borrower shall deliver a duly
completed copy of IRS Form 8886 or any successor form to the Administrative
Agent; and
(f) any
other
development or event that has had or could reasonably be expected to have a
Material Adverse Effect.
Each
notice pursuant to this Section 6.7 shall be accompanied by a statement of
a
Responsible Officer setting forth details of the occurrence referred to therein
and stating what action Holdings, the Borrower or the relevant Subsidiary
proposes to take with respect thereto.
6.8. Environmental
Laws.
(a)
Except as, in the aggregate, could not reasonably be expected to result in
a
Material Adverse Effect, comply with, and ensure compliance by all tenants
and
subtenants, if any, with, all applicable Environmental Laws, and obtain and
comply with and maintain,
49
and
ensure that all tenants and subtenants obtain and comply with and maintain,
any
and all licenses, approvals, notifications, registrations or permits required
by
applicable Environmental Laws.
(b)
Except as, in the aggregate, could not reasonably be expected to result in
a
Material Adverse Effect, conduct and complete all investigations, studies,
sampling and testing, and all remedial, removal and other actions required
under
Environmental Laws and promptly comply with all lawful orders and directives
of
all Governmental Authorities regarding Environmental Laws.
6.9. Additional
Collateral.
With
respect to any new Subsidiary (other than any type of Subsidiary referred to
in
clause (x) or (y) below so long as it qualifies as such or is subject to the
restrictions referred to therein) created or acquired by the Borrower or any
of
its Subsidiaries (which shall be deemed to have occurred in the event that
(x)
any Non-Recourse Subsidiary, Shell Subsidiary, Excluded Acquired Subsidiary,
Qualified LaGrange Entity or Regulated Subsidiary ceases to qualify as such,
or
(y) any Subsidiary previously prohibited from, or unable to become, a Subsidiary
Guarantor pursuant to Qualified Credit Support Limitations contained in the
CCH
Senior Note Indenture or any Qualified Indebtedness of any Qualified Parent
Company that is a member of the CCI Group shall be permitted or able to become
a
Subsidiary Guarantor or such Indebtedness shall no longer be outstanding, it
being understood that such Subsidiaries will not be required to become
Subsidiary Guarantors until such time), promptly (a) execute and deliver to
the
Administrative Agent such amendments to the Guarantee and Collateral Agreement
as the Administrative Agent deems necessary or advisable to grant to the
Administrative Agent, for the benefit of the Lenders, or the Borrower, as the
case may be, a perfected first priority security interest, subject to Liens
not
prohibited by Section 7.3, in (i) the Equity Interests of such new Subsidiary
and all other property of the type that would constitute Collateral of such
new
Subsidiary (including Intercompany Obligations) that are held by Holdings,
the
Borrower or any of its Subsidiaries, limited in the case of the Equity Interests
of any Foreign Subsidiary, to 66% of the total outstanding Equity Interests
of
such Foreign Subsidiary, and (ii) any Collateral with respect to such new
Subsidiary as described in the Guarantee and Collateral Agreement, (b) deliver
to the Administrative Agent the certificates, if any, representing such Equity
Interests (constituting securities within the meaning of Section 8-102(a)(15)
of
the New York UCC), and any intercompany notes or other instruments evidencing
Intercompany Obligations and all other rights and interests constituting
Collateral, together with, as applicable, undated powers, instruments of
transfer and endorsements, in blank, executed and delivered by a duly authorized
officer of Holdings, the Borrower or such Subsidiary, as the case may be, and
(c) except in the case of a Foreign Subsidiary, cause such new Subsidiary
(i) to deliver an Assumption Agreement with respect to the Guarantee and
Collateral Agreement and (ii) to take such actions necessary or advisable to
grant to the Administrative Agent for the benefit of the Lenders a perfected
first priority security interest, subject to Liens not prohibited by Section
7.3, in the Collateral described in the Guarantee and Collateral Agreement
with
respect to such new Subsidiary, including the filing of Uniform Commercial
Code
financing statements in such jurisdictions as may be required by the Guarantee
and Collateral Agreement or by law or as may be requested by the Administrative
Agent.
6.10. Regulated
Subsidiaries.
With
respect to each Regulated Subsidiary, (a) take reasonable steps to obtain the
consents required from any Governmental Authority to enable such Regulated
Subsidiary (unless it is a Shell Subsidiary) to become a Loan Party and to
enable the Loan Parties to pledge as Collateral all of the Equity Interests
of
such Regulated Subsidiary owned by them and (b) cause such Regulated Subsidiary
to comply with the proviso contained in the definition thereof.
SECTION
7. NEGATIVE
COVENANTS
Holdings
and the Borrower agree that, so long as the Commitments remain in effect, any
Letter of Credit remains outstanding or any Loan or other amount is owing to
any
Lender or any Agent
50
hereunder,
Holdings (solely with respect to Sections 7.2, 7.3, 7.4, 7.12, 7.14 and 7.15)
and the Borrower shall not, and shall not permit any Subsidiary of the Borrower
to, directly or indirectly:
7.1. Financial
Condition Covenants.
(a) Consolidated
Leverage Ratio.
Permit
the Consolidated Leverage Ratio determined as of the last day of any fiscal
quarter of the Borrower to exceed 5.0 to 1.0.
(b) Consolidated
First Lien Leverage Ratio.
Permit
the Consolidated First Lien Leverage Ratio determined as of the last day of
any
fiscal quarter of the Borrower to exceed 4.0 to 1.0.
7.2. Indebtedness.
Create,
issue, incur, assume, become liable in respect of or suffer to exist any
Indebtedness, except:
(a) Indebtedness
of any Loan Party pursuant to any Loan Document;
(b) (i)
Indebtedness of the Borrower to any Subsidiary and of any Wholly Owned
Subsidiary Guarantor to the Borrower or any other Subsidiary; (ii) Indebtedness
of any
Subsidiary of the Borrower that is not a Subsidiary Guarantor to any other
Subsidiary of the Borrower that is not a Subsidiary Guarantor;
and
(iii) Indebtedness incurred by any Subsidiary resulting from Investments made
pursuant to Section 7.7(h) in the form of intercompany loans;
(c) (i)
Guarantee
Obligations incurred in the ordinary course of business by the Borrower or
any
of its Subsidiaries of obligations of any Wholly Owned Subsidiary Guarantor
or,
if such Subsidiary is a Guarantor, obligations of the Borrower and (ii)
Guarantee Obligations incurred in the ordinary course of business by any
Subsidiary of the Borrower that is not a Subsidiary Guarantor of obligations
of
any other Subsidiary of the Borrower that is not a Subsidiary
Guarantor;
(d) Indebtedness
of the Borrower and its Subsidiaries (including, without limitation, Capital
Lease Obligations) secured by Liens permitted by Section 7.3(f)(i) in an
aggregate principal amount not to exceed $400,000,000 at any one time
outstanding;
(e) Indebtedness
of Holdings, the Borrower and Charter Communications Operating Capital Corp.
(and Guarantee Obligations of any Guarantor in respect thereof) so long as
(i)
at the time of the incurrence or issuance of such Indebtedness, no Default
or
Event of Default shall have occurred and be continuing or would result
therefrom, (ii) such Indebtedness shall have no scheduled amortization prior
to
the date that is six months after the final maturity of the Term Loans
outstanding on the date such Indebtedness is incurred and (iii) the covenants
and default provisions applicable to such Indebtedness shall be no more
restrictive in any material respect than those contained in (i) in the case
of
Indebtedness of Holdings, the Holdings Senior Note Indenture or the Holdings
Credit Agreement, or (ii) in the case of Indebtedness of the Borrower or Charter
Communications Operating Capital Corp., the CCO Senior Note
Indenture;
(f) Indebtedness
of any Person that becomes a Subsidiary pursuant to an Investment permitted
by
Section 7.7, so long as (i) at the time of the incurrence or issuance of such
Indebtedness, no Default or Event of Default shall have occurred and be
continuing or would result therefrom, (ii) such Indebtedness existed at the
time
of such Investment and was not created in anticipation thereof, (iii) the
Borrower shall use its reasonable best efforts to cause such Indebtedness to
be
repaid no later than 120 days after the date of such Investment, (iv) a
51
certificate
of a Responsible Officer of the Borrower stating whether or not such
Indebtedness subjects such new Subsidiary to any restriction of the type
described in Section 7.13 (disregarding any exceptions contained in Section
7.13) and setting forth the nature and extent of such restriction shall have
been delivered to the Administrative Agent and (v) the aggregate outstanding
principal amount of Indebtedness incurred pursuant to this paragraph shall
not
exceed $400,000,000;
(g) Indebtedness
of the Borrower or any of its 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 Subsidiary in the ordinary course of business against
insufficient funds, so long as such Indebtedness is promptly
repaid;
(h) letters
of credit for the account of the Borrower or any of its Subsidiaries obtained
other than pursuant to this Agreement, so long as the aggregate undrawn face
amount thereof, together with any unreimbursed reimbursement obligations in
respect thereof, does not exceed $75,000,000 at any one time;
(i) unsecured
Indebtedness of Holdings;
(j) Indebtedness
incurred pursuant to the LaGrange Documents or any other sale and leaseback
transaction permitted by Section 7.10;
(k) Indebtedness
of the Borrower and Charter Communications Operating Capital Corp. under the
CCO
Senior Notes and Guarantee Obligations of any Guarantor in respect
thereof;
(l)
additional Indebtedness of the Borrower or any of its Subsidiaries in an
aggregate principal amount (for the Borrower and all Subsidiaries) not to exceed
$150,000,000 at any one time outstanding; and
(m) Indebtedness
of Holdings under the Holdings Credit Agreement (it being understood that there
is no limitation on the aggregate principal amount at any one time outstanding
in respect thereof).
7.3. Liens.
Create,
incur, assume or suffer to exist any Lien upon any of its property, whether
now
owned or hereafter acquired, except:
(a) Liens
for
taxes, assessments and other governmental charges not yet due or that are being
contested in good faith by appropriate proceedings, provided
that
adequate reserves with respect thereto are maintained on the books of Holdings,
the Borrower or its Subsidiaries, as the case may be, in conformity with
GAAP;
(b) carriers’,
warehousemen’s, mechanics’, materialmen’s, repairmen’s or other like Liens
arising in the ordinary course of business that are not overdue for a period
of
more than 30 days or that are being contested in good faith by appropriate
proceedings;
(c) pledges
or deposits in connection with workers’ compensation, unemployment insurance and
other social security legislation;
(d) deposits
made to secure the performance of bids, tenders, trade contracts, leases,
statutory or regulatory obligations, surety and appeal bonds, bankers
acceptances, government
52
contracts,
performance bonds and other obligations of a like nature incurred in the
ordinary course of business, in each case excluding obligations for borrowed
money;
(e) easements,
rights-of-way, municipal and zoning ordinances, title defects, restrictions
and
other similar encumbrances incurred in the ordinary course of business that,
in
the aggregate, are not substantial in amount and that do not in any case
materially detract from the value of the property subject thereto or materially
interfere with the ordinary conduct of the business of Holdings, the Borrower
or
any of its Subsidiaries;
(f) Liens
securing (i) Indebtedness of the Borrower or any of its Subsidiaries incurred
pursuant to Section 7.2(d) to finance the acquisition of fixed or capital
assets, provided
that (A)
such Liens shall be created substantially simultaneously with the acquisition
of
such fixed or capital assets, (B) such Liens do not at any time encumber any
property other than the property financed by such Indebtedness and (C) the
amount of Indebtedness secured thereby is not increased or (ii) Indebtedness
of
any Excluded Acquired Subsidiary permitted under Section 7.2(f) so long as
such
Liens do not at any time encumber any property other than the property of
Excluded Acquired Subsidiaries;
(g) Liens
on
assets of the Borrower and any Guarantor, in each case constituting Collateral
under the Guarantee and Collateral Agreement, securing Indebtedness of the
Borrower or such Guarantor, as the case may be, incurred pursuant to Section
7.2(k) or (m), subject to the Senior Note Intercreditor Agreement;
(h) Liens
created pursuant to the Guarantee and Collateral Agreement securing obligations
of the Loan Parties under (i) the Loan Documents, (ii) Specified Hedge
Agreements, (iii) Specified Cash Management Agreement and (iv) letters of credit
issued pursuant to Section 7.2(h) by any Lender or any Affiliate of any Lender;
(i) any
landlord’s Lien or other interest or title of a lessor under any lease or a
licensor under a license entered into by the Borrower or any of its Subsidiaries
in the ordinary course of its business and covering only the assets so leased
or
licensed;
(j) Liens
created under Pole Agreements on cables and other property affixed to
transmission poles or contained in underground conduits;
(k) Liens
of
or restrictions on the transfer of assets imposed by any Governmental Authority
or other franchising authority, utilities or other regulatory bodies or any
federal, state or local statute, regulation or ordinance, in each case arising
in the ordinary course of business in connection with franchise agreements
or
Pole Agreements;
(l) Liens
arising from judgments or decrees not constituting an Event of Default under
Section 8(i);
(m) Liens
arising under or in connection with the LaGrange Documents or any other sale
and
leaseback transaction permitted by Section 7.10;
(n) Liens
consisting of cash collateral in an aggregate amount not exceeding $50,000,000
at any time, securing Specified Hedge Agreements or letters of credit issued
pursuant to Section 7.2(h);
53
(o) second-priority
Liens on assets constituting Collateral under the Guarantee and Collateral
Agreement securing Indebtedness of the Borrower or any Guarantor incurred
pursuant to Section 7.2(e), which Liens shall be on terms and conditions no
less
favorable to the interests of the Loan Parties and the Lenders in any material
respect than those contained in the CCO Senior Note Indenture, and in any event
subject to an intercreditor agreement on terms and conditions satisfactory
to
the Administrative Agent (it being agreed that the Senior Note Intercreditor
Agreement as in effect on the Restatement Effective Date is
satisfactory);
(p) Liens
in
favor of the Borrower created pursuant to the Silo Guarantee and Collateral
Agreements as in effect on the Restatement Effective Date;
(q) third-priority
Liens on Equity Interests of the Borrower securing Indebtedness of Holdings
incurred pursuant to Section 7.2(e) or (m), which Liens shall be on terms and
conditions no less favorable to the interests of the Loan Parties and the
Lenders in any material respect than those contained in the Holdings Credit
Agreement as in effect on the Restatement Effective Date, and in any event
subject to an intercreditor agreement on terms and conditions satisfactory
to
the Administrative Agent (it being agreed that the Holdings Intercreditor
Agreement as in effect on or shortly after the Restatement Effective Date is
satisfactory); and
(r) Liens
not
otherwise permitted by this Section so long as neither (i) the aggregate
outstanding principal amount of the obligations secured thereby nor (ii) the
aggregate fair market value (determined as of the date such Lien is incurred)
of
the assets subject thereto exceeds $50,000,000 at any one time
outstanding.
7.4. Fundamental
Changes.
Enter
into any merger, consolidation or amalgamation, or liquidate, wind up or
dissolve itself (or suffer any liquidation or dissolution), or Dispose of all
or
substantially all of its property or business, except that:
(a) (i)
any
Subsidiary of the Borrower may be merged or consolidated with or into any Wholly
Owned Subsidiary Guarantor (provided
that the
Wholly Owned Subsidiary Guarantor shall be the continuing or surviving entity)
and (ii) any Wholly Owned Subsidiary of the Borrower that is not a Subsidiary
Guarantor may be merged or consolidated with or into any Wholly Owned Subsidiary
of the Borrower;
(b) any
Subsidiary of the Borrower with no operations may be merged or consolidated
with
or into the Borrower (provided
that the
Borrower shall be the continuing or surviving entity);
(c) (i)
any
Subsidiary of the Borrower may Dispose of any or all of its assets (upon
voluntary liquidation or otherwise) to any Wholly Owned Subsidiary Guarantor
and
(ii) any Subsidiary may dispose of any or all of its assets to any other Person
to effect a Disposition permitted by Section 7.5(f);
(d) any
Shell
Subsidiary may be liquidated or dissolved or otherwise cease to exist;
and
(e) so
long
as no Default or Event of Default has occurred or is continuing or would result
therefrom, Holdings may be merged or consolidated with any Affiliate of the
Charter Group (provided that either (i) Holdings is the continuing or surviving
entity or (ii) if Holdings is not the continuing or surviving entity, such
continuing or surviving entity assumes the obligations of Holdings under the
Loan Documents to which it is a party pursuant to an
54
instrument
in form and substance reasonably satisfactory to the Administrative Agent
and,
in connection therewith, the Administrative Agent shall receive such legal
opinions, certificates and other documents as they may reasonably
request).
7.5. Disposition
of Property.
Dispose
of any of its property, whether now owned or hereafter acquired, or, in the
case
of any Subsidiary, issue or sell any Equity Interests to any Person,
except:
(a) the
Disposition of obsolete, surplus or worn out property in the ordinary course
of
business;
(b) Dispositions
of cash and Cash Equivalents, and the sale of inventory in the ordinary course
of business;
(c) Dispositions
expressly permitted by Section 7.4;
(d) (i)
the
sale or issuance of any Subsidiary’s Equity Interests to the Borrower or any
Wholly Owned Subsidiary Guarantor and (ii) the sale or issuance of the Equity
Interests of any Subsidiary of the Borrower that is not a Subsidiary Guarantor
to any other Subsidiary of the Borrower that is not a Subsidiary Guarantor;
(e) the
sale
or issuance of any Subsidiary’s Equity Interests to a Designated Holding
Company; provided
that (i)
such Equity Interests are contributed as a capital contribution to the direct
parent of such Subsidiary on the date of such sale or issuance (and, if such
parent is a Wholly Owned Subsidiary such parent shall remain a Wholly Owned
Subsidiary after such contribution) and (ii) no DHC Default shall have occurred
and be continuing or would result therefrom;
(f) the
Disposition (directly or indirectly through the Disposition of 100% of the
Equity Interests of a Subsidiary) of operating assets by the Borrower or any
of
its Subsidiaries (it being understood that all Exchange Excess Amounts shall
be
deemed to constitute usage of availability in respect of Dispositions pursuant
to this Section 7.5(f)), provided
that (i)
on the date of such Disposition (the “Disposition
Date”;
it
being understood that, with respect to a series of related Dispositions required
pursuant to a plan of Dispositions contained in a single agreement, the
Disposition Date shall be the date of the first such Disposition), no Default
or
Event of Default shall have occurred and be continuing or would result
therefrom; (ii) in any fiscal year, the Annualized Asset Cash Flow Amount
attributable to the assets being disposed of, when added to the Annualized
Asset
Cash Flow Amount attributable to all other assets previously disposed of
pursuant to this Section 7.5(f) in such fiscal year (but after the Restatement
Effective Date), shall not exceed an amount equal to 25% of Annualized Operating
Cash Flow for the last fiscal quarter of the immediately preceding fiscal year
(calculated without regard to Section 1.2(e)); (iii) the Annualized Asset Cash
Flow Amount attributable to the assets being disposed of, when added to the
Annualized Asset Cash Flow Amount attributable to all other assets previously
disposed of pursuant to this Section 7.5(f) during the period from the
Restatement Effective Date to such Disposition Date, shall not exceed an amount
equal to 50% of Annualized Pro Forma Operating Cash Flow determined as of such
Disposition Date; (iv) except in the case of any Exchange, at least 75% of
the
proceeds of such Disposition shall be in the form of cash; and (v) the Net
Cash
Proceeds of such Disposition shall be applied to prepay the Term Loans to the
extent required by Section 2.9(a);
55
(g) any
Exchange by the Borrower and its Subsidiaries; provided
that (i)
on the relevant Exchange Date, no Default or Event of Default shall have
occurred and be continuing or would result therefrom; (ii) in the event that
the
Annualized Asset Cash Flow Amount attributable to the assets being Exchanged
exceeds the annualized asset cash flow amount (determined in a manner comparable
to the manner in which Annualized Asset Cash Flow Amounts are determined
hereunder) of the assets received in connection with such Exchange (such excess
amount, an “Exchange
Excess Amount”),
then,
the Disposition of such Exchange Excess Amount shall be permitted by clauses
(ii) and (iii) of Section 7.5(f); and (iii) the Net Cash Proceeds of such
Exchange, if any, shall be applied to prepay the Term Loans to the extent
required by Section 2.9(a);
(h) Dispositions
by the Borrower and its Subsidiaries of property acquired after the Restatement
Effective Date (other than property acquired in connection with Exchanges of
property owned on the Restatement Effective Date), so long as (i) no Default
or
Event of Default shall have occurred and be continuing or would result
therefrom, (ii) a definitive agreement to consummate such Disposition is
executed no later than twelve months after the date on which relevant property
is acquired and (iii) such Disposition is consummated within eighteen months
after the date on which the relevant property is acquired;
(i) Dispositions
consisting of capital contributions permitted by Section 7.7(h);
(j) the
Disposition by the Borrower and its Subsidiaries of other property having a
fair
market value not to exceed $10,000,000 in the aggregate for any fiscal year
of
the Borrower; and
(k) Dispositions
of Investments permitted by Section 7.7(h); provided
that (i)
no Default or Event of Default shall have occurred and be continuing or would
result therefrom and (ii) such Disposition is made for fair market
value.
It
is
understood that this Section 7.5 does not apply to the sale or issuance of
the
Equity Interests of the Borrower.
7.6. Restricted
Payments.
Declare
or pay any dividend (other than dividends payable solely in common stock of
the
Person making such dividend) on, or make any payment on account of, or set
apart
assets for a sinking or other analogous fund for, the purchase, redemption,
defeasance, retirement or other acquisition of, any Equity Interests of
Holdings, the Borrower or any Subsidiary, whether now or hereafter outstanding,
or make any other distribution in respect thereof, either directly or
indirectly, whether in cash or property or in obligations of Holdings, the
Borrower or any Subsidiary (collectively, “Restricted
Payments”),
except that:
(a) (i)
any
Subsidiary may make Restricted Payments to the Borrower or any Wholly Owned
Subsidiary Guarantor and (ii) any Subsidiary of the Borrower that is not a
Subsidiary Guarantor may make Restricted Payments to any other Subsidiary of
the
Borrower;
(b) the
Borrower may make distributions (directly or indirectly) to any Qualified Parent
Company or any Affiliate of the Borrower for the purpose of enabling such Person
to make interest payments in respect of its Qualified Indebtedness (other than
interest that becomes due as a result of the acceleration of the maturity of
such Indebtedness after an event of default or similar event), provided
that (i)
no Default or Event of Default shall have occurred and be continuing or would
result therefrom, (ii) no DHC Default shall have occurred and be continuing
or
would result therefrom (unless the use of proceeds of such distribution
56
cures
all
such DHC Defaults) and (iii) each such distribution shall be made no earlier
than 15 Business Days prior to the date the relevant interest payment is
due
(provided
that
this clause (iii) shall not apply to distributions in an aggregate amount
not
exceeding $50,000,000 (to be refreshed upon the making of any interest payment
with such distributions in the amount of such interest payment) made directly
or
indirectly to CCHC or CCI for the purpose of enabling such Persons to make
scheduled interest payments on their Indebtedness);
(c) the
Borrower may make distributions to any Qualified Parent Company to be used
to
repay, repurchase, redeem, cancel or otherwise acquire or retire (collectively,
“Debt
Repayment”)
any
such Person’s Indebtedness for borrowed money; provided
that (i)
no Default or Event of Default shall have occurred and be continuing or would
result therefrom, (ii) no DHC Default shall have occurred and be continuing
or
would result therefrom (unless the use of proceeds of such distribution cures
all such DHC Defaults), (iii) Available Liquidity shall, after giving
pro forma
effect
to such distribution, be at least $250,000,000 and (iv) such distribution shall
be made no earlier than 60 days prior to the date the relevant Debt Repayment
is
made;
(d) in
respect of any calendar year or portion thereof during which the Borrower is
a
Flow-Through Entity, so long as no Default or Event of Default has occurred
and
is continuing or would result therefrom, and without duplication of Section
7.7(k), the Borrower may make distributions (directly or indirectly) to the
direct or indirect holders of the Equity Interests of the Borrower that are
not
Flow-Through Entities, 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 combined taxable income of the
Qualified Parent Companies, the Borrower, its Subsidiaries in any calendar
year,
as estimated by the Borrower in good faith;
(e) so
long
as no Default or Event of Default has occurred and is continuing or would result
therefrom, the Borrower may make distributions to any of its Affiliates for
purposes other than Debt Repayment; provided
that the
aggregate of all distributions made under this Section 7.6(e) shall not exceed
$100,000,000 during the term of this Agreement;
(f) so
long
as no Default or Event of Default has occurred and is continuing or would result
therefrom, the Borrower may make distributions to any Qualified Parent Company
or direct payments to be used to repurchase, redeem or otherwise acquire or
retire for value any Equity Interests of any Qualified Parent Company held
by
any member of management of Holdings or any other Qualified Parent Company,
the
Borrower or any of its Subsidiaries pursuant to any management equity
subscription agreement, stock option agreement or similar agreement or
arrangement, provided that the aggregate amount of such distributions shall
not
exceed $10,000,000 in any fiscal year of the Borrower;
(g) the
Borrower may make distributions to any Qualified Parent Company to permit such
Qualified Parent Company to pay (i) 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 such Qualified Parent Company of Equity Interests or
Indebtedness or any exchange of securities or a tender for outstanding debt
securities, (ii) 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, or (iii) other
administrative expenses (including legal, accounting, other professional fees
and costs, printing and other such fees and expenses)
57
incurred
in
the ordinary course of business, in an aggregate amount in the case of this
clause (iii) not to exceed $5,000,000 in any fiscal year; and
(h) so
long
as no Default or Event of Default has occurred and is continuing or would result
therefrom, the Borrower may make Restricted Payments in the amount of any
payment or amount received, directly or indirectly, by it from any Non-Recourse
Subsidiary concurrently with the receipt of such payment or amount.
7.7. Investments.
Make
any advance, loan, extension of credit (by way of guaranty or otherwise) or
capital contribution to, or purchase any Equity Interests, bonds, notes,
debentures or other debt securities of, or any assets constituting a significant
part of a business unit of, or make any other investment in, any Person (all
of
the foregoing, “Investments”),
except:
(a) extensions
of trade credit in the ordinary course of business;
(b) investments
in Cash Equivalents;
(c) Guarantee
Obligations permitted by Section 7.2;
(d) loans
and
advances to employees of the Borrower or any of its Subsidiaries in the ordinary
course of business (including for travel, entertainment and relocation expenses)
in an aggregate amount not to exceed $5,000,000 at any one time
outstanding;
(e) Investments
(including capital expenditures) (i) by the Borrower or any of its Subsidiaries
in (x) the Borrower or any Subsidiary that, prior to such Investment, is a
Wholly Owned Subsidiary Guarantor, or (y) any then existing Subsidiary that
is
not a Subsidiary Guarantor if such Subsidiary becomes a Wholly Owned Subsidiary
Guarantor concurrently with the making of such Investment and (ii) by any
Subsidiary of the Borrower that is not a Subsidiary Guarantor in any other
Subsidiary of the Borrower that is not a Subsidiary Guarantor;
(f) acquisitions
by the Borrower or any Wholly Owned Subsidiary Guarantor of operating assets
(substantially all of which pertain to a Permitted Line of Business), directly
through an asset acquisition or indirectly through the acquisition of 100%
of
the Equity Interests of a Person substantially engaged in a Permitted Line
of
Business, provided,
that
(i) no Default or Event of Default shall have occurred and be continuing or
would result therefrom and (ii) at no time shall the aggregate Consideration
paid during the period from the Restatement Effective Date through such time
in
connection with any such acquisitions of Equity Interests of Persons who,
together with their Subsidiaries, are not Wholly Owned Subsidiary Guarantors
at
such time, exceed $750,000,000;
(g) the
Borrower or any of its Subsidiaries may contribute operating assets to any
Non-Recourse Subsidiary so long as (i) such Disposition is permitted pursuant
to
Section 7.5(f), (ii) no Default or Event of Default shall have occurred and
be
continuing or would result therefrom, (iii) after giving effect thereto, the
Consolidated Leverage Ratio shall be equal to or lower than the Consolidated
Leverage Ratio in effect immediately prior thereto and (iv) the Equity Interests
received by the Borrower or any of its Subsidiaries in connection therewith
shall be pledged as Collateral (either directly or through a holding company
parent of such Non-Recourse Subsidiary so long as such parent is a Wholly Owned
Subsidiary Guarantor); and
58
(h) in
addition to Investments otherwise expressly permitted by this Section,
Investments by the Borrower or any of its Subsidiaries in an aggregate amount
outstanding at any time (initially valued at cost and giving effect to all
payments received in respect thereof whether constituting dividends, prepayment,
interest, return on capital or principal or otherwise unless such payments
are
from a Non-Recourse Subsidiary and applied to make a Restricted Payment under
Section 7.6(h) or an Investment under Section 7.7 (l) or 7.7(m)), not to exceed
the sum of $300,000,000 plus
the
aggregate amount of cash and assets (valued at fair market value) contributed
by
any Designated Holding Company to the Borrower after April 27, 2004 in the
form
of common equity; provided,
that
(i) no such Investment may be made at any time when a Default or Event of
Default has occurred and is continuing or would result therefrom, (ii) none
of
the proceeds of such Investment may be used directly or indirectly to repay,
repurchase, redeem or otherwise acquire or retire for value Indebtedness of
any
Qualified Parent Company or otherwise in a manner that would be prohibited
by
Section 7.6 if the Borrower or any Subsidiary (directly or indirectly) used
such
proceeds in such manner and (iii) Available Liquidity, shall, after giving
pro forma
effect
to such Investment, be at least $250,000,000;
(i) any
Excluded Acquired Subsidiary may make investments in any other Excluded Acquired
Subsidiary;
(j) the
Borrower may purchase or otherwise acquire Indebtedness of a Qualified Parent
Company in connection with any Debt Repayment so long as (i) such Debt Repayment
is consummated within 60 days after such purchase, (ii) the amount expended
to
effectuate such purchase (or, in the case of a debt-for-debt exchange, the
principal amount of the Indebtedness issued in exchange for such Qualified
Parent Company Indebtedness) could, on the date such purchase is made (the
“Test
Date”),
have
been distributed to a Qualified Parent Company to effectuate a Debt Repayment
pursuant to Section 7.6(c), and (iii) on the date such Debt Repayment is
consummated, no Default or Event of Default shall have occurred and be
continuing;
(k) in
respect of any calendar year or portion thereof during which the Borrower or
any
of its Subsidiaries is a Flow-Through Entity, so long as no Default or Event
of
Default has occurred and is continuing or would result therefrom, and without
duplication of Section 7.6(d), the Borrower and its Subsidiaries may make a
loan
or advance (directly or indirectly) to the direct or indirect holders of the
Equity Interests of the Borrower or its Subsidiaries that are not Flow-Through
Entities, 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 the Qualified Parent
Companies, the Borrower or its Subsidiaries, as applicable, in any calendar
year, as estimated by the Borrower in good faith;
(l) so
long
as no Default or Event of Default has occurred and is continuing or would result
therefrom, the Borrower and its Subsidiaries may make Investments in any
Non-Recourse Subsidiary with the proceeds of distributions from any Non-Recourse
Subsidiary concurrently with the receipt of such proceeds; and
(m) the
Borrower and its Subsidiaries may contribute operating assets to a Wholly Owned
Subsidiary, provided
that (i)
no Default or Event of Default has occurred and is continuing or would result
therefrom, (ii) a binding Contractual Obligation with a counterparty other
than
a member of the Charter Group to Dispose of such assets or Wholly Owned
Subsidiary is in effect at the time of such contribution, (iii) such Disposition
is consummated in accordance with Section 7.5(f) within five Business Days
of
such contribution or, if such
59
Disposition
is not so consummated, then within eight Business Days of such contribution
such
contribution is reversed or such Wholly Owned Subsidiary complies with Section
6.9 and (iv) such Wholly Owned Subsidiary shall not make any Investments
with
such assets or the proceeds thereof, including pursuant to Section 7.7(e)(ii)
or
(iv).
Notwithstanding
anything to the contrary in this Agreement, in no event shall the sum of (i)
the
aggregate amount of letters of credit and surety arrangements (including
unreimbursed reimbursement obligations in respect thereof) and security deposits
posted by the Borrower or any of its Subsidiaries in connection with potential
Investments (including pursuant to letters of intent) and (ii) the aggregate
outstanding amount of L/C Obligations, exceed $350,000,000 at any one
time.
7.8. Certain
Payments and Modifications Relating to Indebtedness and Management
Fees.
(a) Make or offer to make any payment, prepayment, repurchase, purchase or
redemption in respect of, or otherwise optionally or voluntarily defease or
segregate funds with respect to (collectively, “prepayment”), any Specified
Long-Term Indebtedness, the CCO Senior Notes or, unless otherwise agreed by
the
Administrative Agent, Indebtedness under the CCVIII Credit Agreement, other
than
(i) the payment of scheduled interest payments required to be made in cash,
(ii)
the prepayment of Specified Subordinated Debt with the proceeds of other
Specified Long-Term Indebtedness or of Loans or with cash on hand, (iii) the
prepayment of any Specified Long-Term Indebtedness or the CCO Senior Notes
with
the proceeds of other Specified Long-Term Indebtedness, so long as such new
Indebtedness has covenants and event of default provisions no more restrictive
in any material respect than those applicable to the Indebtedness being
refinanced, (iv) the prepayment of any Specified Long-Term Indebtedness or
the
CCO Senior Notes with the proceeds of capital contributions made to Holdings,
and then contributed to the Borrower, in each case in the form of common equity,
(v) the prepayment of any Specified Long-Term Indebtedness or the CCO Senior
Notes effected solely by exchanging such debt for Indebtedness of a Qualified
Parent Company, (vi) the prepayment of the CCO Senior Notes from the proceeds
of
Incremental Term Loans so long as (x) no Default or Event of Default has
occurred and is continuing or would result therefrom and (y) Available Liquidity
shall, after giving pro forma
effect
to such prepayment, be at least $250,000,000, and (vii) the prepayment of
Indebtedness under the CCVIII Credit Agreement with the Net Cash Proceeds of
assets Disposed of by, or any Recovery Event at, CC VIII Operating, LLC or
any
of its Subsidiaries.
(b) Amend,
modify, waive or otherwise change, or consent or agree to any amendment,
modification, waiver or other change to any of the terms of any Specified
Long-Term Indebtedness or the CCO Senior Note Indenture other than any such
amendment, modification, waiver or other change that would extend the maturity
or reduce the amount of any payment of principal thereof or reduce the rate
or
extend any date for payment of interest thereon or is immaterial to the
interests of the Lenders or does not result in such Indebtedness failing to
meet
the relevant conditions of Section 7.2(e).
(c) Make
or
agree to make any payment in respect of management fees to any Person, directly
or indirectly, other than (i) to the Borrower or a Wholly Owned Subsidiary
Guarantor and
(ii)
any amounts required to be paid or reimbursed to the manager under the
Management Fee Agreement with respect to actual costs, fees, expenses, and
other
similar amounts thereunder, without any mark-up or premium.
(d) Amend,
modify, waive or otherwise change, or consent or agree to any amendment,
modification, waiver or other change to, any of the terms of the Management
Fee
Agreement, other than any such amendment, modification, waiver or other change
that (i) (x) would extend the due date or reduce (or increase to the amount
permitted by Section 7.8(c)) the amount of any payment thereunder or (y) does
not adversely affect the interests of the Lenders (it being understood that
a
change in the manager
60
thereunder
to another member of the Charter Group does not adversely affect the interests
of the Lenders) and (ii) does not involve the payment of a consent
fee.
(e) (i)
Assign any of its rights or obligations, or any amounts owing to it, under
the
CCVIII Credit Agreement (other than pursuant to Liens permitted by Section
7.3(g), (h) or (o)) or (ii) amend, modify, waive or otherwise change any of
the
terms thereof in a manner that could materially and adversely affect the
interests of the Lenders, in each case without the prior written consent of
the
Administrative Agent.
7.9. Transactions
with Affiliates.
Enter
into any transaction, including any purchase, sale, lease or exchange of
property, the rendering of any service or the payment of any management,
advisory or similar fees, with any Affiliate (other than transactions between
or
among Holdings, the Borrower or any Subsidiary Guarantor) unless such
transaction is (a) not prohibited under this Agreement and (b) upon
fair and reasonable terms no less favorable to the Borrower or such Subsidiary,
as the case may be, in any material respect than it would obtain in a comparable
arm’s length transaction with a Person that is not an Affiliate. The foregoing
restrictions shall not apply to transactions expressly permitted by Section
7.6,
Section 7.7(h) or Section 7.8(c) or amounts paid under the Management Fee
Agreement.
7.10. Sales
and Leasebacks.
Enter
into any arrangement (other than pursuant to the LaGrange Documents) with any
Person (other than Subsidiaries of the Borrower) providing for the leasing
by
the Borrower or any Subsidiary of real or personal property that has been or
is
to be sold or transferred by the Borrower or such Subsidiary to such Person
or
to any other Person to whom funds have been or are to be advanced by such Person
on the security of such property or rental obligations of the Borrower or such
Subsidiary unless, after giving effect thereto, the aggregate outstanding amount
of Attributable Debt does not exceed $175,000,000.
7.11. Changes
in Fiscal Periods.
Permit
the fiscal year of the Borrower to end on a day other than December 31 or change
the Borrower’s method of determining fiscal quarters.
7.12. Negative
Pledge Clauses.
Enter
into or suffer to exist or become effective any agreement that prohibits or
limits the ability of Holdings, the Borrower or any of its Subsidiaries to
create, incur, assume or suffer to exist any Lien upon any of its property
or
revenues, whether now owned or hereafter acquired, to secure obligations under
this Agreement or the other Loan Documents (regardless of amount) other than
(a)
this Agreement and the other Loan Documents, (b) any agreements governing any
purchase money Liens or Capital Lease Obligations otherwise permitted hereby
(in
which case, any prohibition or limitation shall only be effective against the
assets financed thereby), (c) pursuant to Contractual Obligations assumed in
connection with Investments (but not created in contemplation thereof) so long
as the maximum aggregate liabilities of Holdings, the Borrower and its
Subsidiaries pursuant thereto do not exceed $10,000,000 at any time, (d) any
agreement governing Indebtedness of Holdings permitted hereby, or Indebtedness
of a Qualified Parent Company, so long as such restrictions are no more onerous
in any material respect than those contained in the CCH Senior Note Indenture
as
in effect on the Restatement Effective Date (other than restrictions based
on
satisfying a leverage ratio condition), (e) the prohibitions and limitations
on
the LaGrange Entities pursuant to the LaGrange Documents, (f) pursuant to
agreements governing Indebtedness assumed in connection with the acquisition
of
any Person that becomes a Subsidiary pursuant to Section 7.7(f) or (h) so long
as such Indebtedness is permitted under Section 7.2(f) or (l) and such
Indebtedness was not created or incurred in contemplation of such acquisition
and such restrictions apply only to such acquired Subsidiary and its
Subsidiaries, (g) as contained in the Holdings Credit Documents as in effect
on
or shortly after the Restatement Effective Date or in any other agreement
governing Indebtedness secured by Liens described in Section 7.3(q) so long
as
such restrictions are not more onerous in any material respect than those
contained in the Holdings Credit Documents as in effect on or shortly after
the
Restatement Effective
61
Date,
(h)
as contained in the CCO Senior Note Indenture as in effect on the Restatement
Effective Date or in any other agreement governing Indebtedness secured by
Liens
described in Section 7.3(o) so long as such restrictions are no more onerous
in
any material respect than those contained in the CCO Senior Note Indenture
and
the related collateral and guarantee agreement as in effect on the Restatement
Effective Date, (i) as contained in any QPC Indenture as in effect on the
Restatement Effective Date, (j) customary provisions in leases and licenses
entered into in the ordinary course of business or as required in any franchise
permit, (k) customary restrictions in an agreement to Dispose of assets in
a
transaction permitted under Section 7.5 solely to the extent that such
restriction applies solely to the assets to be so Disposed and (l) as contained
in the Silo Credit Agreements or the Silo Guarantee and Collateral Agreements
as
in effect on the Restatement Effective Date.
7.13. Clauses
Restricting Subsidiary Distributions.
Enter
into or suffer to exist or become effective any consensual encumbrance or
restriction on the ability of any Subsidiary of the Borrower to (a) make
Restricted Payments in respect of any Equity Interests of such Subsidiary held
by, or pay any Indebtedness owed to, the Borrower or any other Subsidiary of
the
Borrower, (b) make loans or advances to, or other Investments in, the Borrower
or any other Subsidiary of the Borrower or (c) transfer any of its assets to
the
Borrower or any other Subsidiary of the Borrower, except for such encumbrances
or restrictions existing under or by reason of (i) any restrictions existing
under the Loan Documents, (ii) any restrictions with respect to a Subsidiary
imposed pursuant to an agreement that has been entered into in connection with
the Disposition of all or substantially all of the Equity Interests or assets
of
such Subsidiary in a transaction otherwise permitted by this Agreement, (iii)
any restrictions referred to in clauses (a), (b) and (c) above contained in
the
CCH Senior Note Indenture as in effect on the Restatement Effective Date or
in
any other agreement governing Indebtedness (including Indebtedness of a
Qualified Parent Company) so long as such restrictions are no more onerous
in
any material respect than those contained in the CCH Senior Note Indenture
as in
effect on the Restatement Effective Date (other than restrictions based on
satisfying a leverage ratio condition or equity proceeds and capital
contributions baskets), (iv) the encumbrances and restrictions on the LaGrange
Entities pursuant to the LaGrange Documents, (v) any restrictions contained
in
documents governing Indebtedness permitted under Section 7.2(e), 7.2(i) or
7.2(l) so long as such restrictions are no more onerous in any material respect
than those contained in the Loan Documents or the CCO Senior Note Indenture,
(vi) any restrictions contained in agreements governing Indebtedness assumed
in
connection with the acquisition of any Person that becomes a Subsidiary pursuant
to Section 7.7(f) or (h) so long as such Indebtedness is permitted under Section
7.2(f) or (l) and such Indebtedness was not created or incurred in contemplation
of such acquisition and such restrictions apply only to such acquired Subsidiary
and its Subsidiaries, (vii) restrictions contained in the Holdings Credit
Documents as in effect on or shortly after the Restatement Effective Date or
in
any other agreement governing Indebtedness secured by Liens described in Section
7.3(q) so long as such restrictions are no more onerous in any material respect
than those contained in the Holdings Credit Documents as in effect on or shortly
after the Restatement Effective Date, (viii) restrictions contained in the
CCO
Senior Note Indenture as in effect on the Restatement Effective Date or in
any
other agreement governing Indebtedness secured by Liens described in Section
7.3(o) so long as such restrictions are no more onerous in any material respect
than those contained in the CCO Senior Note Indenture as in effect on the
Restatement Effective Date, (ix) restrictions contained in any QPC Indenture
as
in effect on the Restatement Effective Date, (x) restrictions contained in
the
organizational documents of CC VIII, LLC, and other documents governing the
CCVIII Interest, (xi) customary restrictions in an agreement to Dispose of
assets in a transaction permitted under Section 7.5 to the extent that such
restriction applies solely to such assets, (xii) customary anti-assignment
provisions in leases and licenses entered into in the ordinary course of
business or as required in any franchise permit, (xiii) restrictions governing
Indebtedness permitted under Section 7.2(d) to the extent prohibiting transfers
of the assets financed with such Indebtedness, and (xiv) restrictions contained
in the Silo Credit Agreements as in effect on the Restatement Effective
Date.
62
7.14. Lines
of Business; Holding Company Status.
(a)
Enter into any business, either directly or through any Subsidiary, except
for
(i) those businesses in which the Borrower and its Subsidiaries are engaged
on
the Restatement Effective Date and (ii) businesses which are reasonably similar
or related thereto or reasonable extensions thereof (collectively, “Permitted
Lines of Business”).
(b) In
the
case of the Borrower, (i) conduct, transact or otherwise engage in, or commit
to
conduct, transact or otherwise engage in, any business or operations other
than
those incidental to its ownership of the Equity Interests of other Persons
(including cash management and related investing activities) or (ii) own, lease,
manage or otherwise operate any properties or assets other than (x) Equity
Interests of other Persons (including cash management and related investing
activities), (y) Intercompany Obligations and (z) temporary ownership of assets
(pending contribution to a Subsidiary Guarantor) other than real estate,
fixtures or franchise agreements; provided
that,
for the avoidance of doubt, this paragraph (b) shall not prohibit the Borrower
from entering into Commercial Contracts.
(c) In
the
case of Holdings, (i) conduct, transact or otherwise engage in, commit to
conduct, transact or otherwise engage in any business or operations other than
those incidental to its ownership of the Equity Interests of the Borrower or
of
any other Person, (ii) own, lease, manage or otherwise operate any properties
or
assets other than Equity Interests of the Borrower, Intercompany Obligations,
Indebtedness owing by any Person and the Equity Interests of any other Person,
(iii) incur any obligations or liabilities other than obligations under the
Loan
Documents, Indebtedness permitted to be incurred by it under Section 7.2 and
other customary obligations incidental to its existence and ownership and
liabilities and obligations related to the purchase or ownership of Indebtedness
that it is not prohibited from purchasing or owning pursuant to any Loan
Document or (iv) use any proceeds or amounts received from the Borrower or
any
of its Subsidiaries for
purposes of enabling it to effect any transaction prohibited under Section
7.7(h)(ii).
(d) In
the
case of Charter Communications Operating Capital Corp., (i) conduct, transact
or
otherwise engage in, commit to conduct, transact or otherwise engage in any
business or operations, (ii) own, lease, manage or otherwise operate any
properties or assets or (iii) incur any obligations or liabilities other than
obligations under the Loan Documents, Indebtedness under Section 7.2(e) or
(k)
and other customary obligations incidental to its existence.
7.15. Investments
in the Borrower.
In the
case of Holdings, make any Investment in the Borrower other than in the form
of
a capital contribution, a loan so long as such loan is evidenced by a note
and
pledged to the Administrative Agent pursuant to the Guarantee and Collateral
Agreement or a Guarantee Obligation in respect of any obligation of the
Borrower.
SECTION
8. EVENTS
OF
DEFAULT
If
any of
the following events shall occur and be continuing:
(a) the
Borrower shall fail to pay any principal of any Loan or Reimbursement Obligation
when due in accordance with the terms hereof; or the Borrower shall fail to
pay
any interest on any Loan or Reimbursement Obligation, or any other amount
payable hereunder or under any other Loan Document, within five days after
any
such interest or other amount becomes due in accordance with the terms hereof;
or
(b) any
representation or warranty made or deemed made by any Loan Party herein or
in
any other Loan Document or that is contained in any certificate, document or
financial or other statement furnished by it at any time under or in connection
with this Agreement or any
63
such
other Loan Document shall prove to have been inaccurate in any material respect
on or as of the date made or deemed made; or
(c) any
Loan
Party shall default in the observance or performance of any agreement contained
in clause (i) or (ii) of Section 6.4(a) (with respect to Holdings and the
Borrower only), Section 6.7(a), Section 6.10 or Section 7 of this Agreement
or
Sections 6.4 and 6.5(b) of the Guarantee and Collateral Agreement;
or
(d)
any Loan
Party shall default in the observance or performance of any other agreement
contained in this Agreement or any other Loan Document (other than as provided
in paragraphs (a) through (c) of this Section), and such default shall continue
unremedied for a period of 30 days after notice to the Borrower from the
Administrative Agent or the Required Lenders; or
(e) Holdings,
the Borrower or any of its Subsidiaries shall (i) default in making any payment
of any principal of any Indebtedness (including, without duplication, any
Guarantee Obligation in respect of Indebtedness, but excluding the Loans) on
the
scheduled or original due date with respect thereto or (ii) default in making
any payment of any interest on any such Indebtedness beyond the period of grace,
if any, provided in the instrument or agreement under which such Indebtedness
was created; or (iii) default in the observance or performance of any other
agreement or condition relating to any such Indebtedness or contained in any
instrument or agreement evidencing, securing or relating thereto, or any other
event shall occur or condition exist, the effect of which default or other
event
or condition is to cause, or to permit the holder or beneficiary of such
Indebtedness (or a trustee or agent on behalf of such holder or beneficiary)
to
cause, with the giving of notice if required, such Indebtedness to become due
prior to its stated maturity or (in the case of any such Indebtedness
constituting a Guarantee Obligation) to become payable; provided,
that, a
default, event or condition described in clause (i), (ii) or (iii) of this
paragraph (e) shall not at any time constitute an Event of Default unless,
at
such time, one or more defaults, events or conditions of the type described
in
clause (i), (ii) or (iii) of this paragraph (e) shall have occurred and be
continuing with respect to such Indebtedness the outstanding aggregate principal
amount of which exceeds $100,000,000; or
(f) any
Designated Holding Company other than Holdings shall (i) default in making
any
payment of any principal of any Indebtedness (including, without duplication,
any Guarantee Obligation in respect of Indebtedness) on the scheduled or
original due date with respect thereto or (ii) default in making any payment
of
any interest on any such Indebtedness or default in the observance or
performance of any other agreement or condition relating to any such
Indebtedness or contained in any instrument or agreement evidencing, securing
or
relating thereto, or any other event shall occur or condition exist, if such
default or other event or condition, in each case with respect to this clause
(ii), results in the acceleration of such Indebtedness prior to its stated
maturity or (in the case of any such Indebtedness constituting a Guarantee
Obligation) causes such Indebtedness to become payable; provided,
that a
default, event or condition described in clause (i) or (ii) of this paragraph
(f) shall not at any time constitute an Event of Default unless, at such time,
one or more defaults, events or conditions of the type described in clause
(i)
or (ii) of this paragraph (f) shall have occurred and be continuing with respect
to such Indebtedness the outstanding aggregate principal amount of which exceeds
$200,000,000; or
(g) (i)
any
Designated Holding Company, the Borrower or any of its Subsidiaries shall
commence any case, proceeding or other action (A) under any existing or future
law of any jurisdiction, domestic or foreign, relating to bankruptcy,
insolvency, reorganization or relief of
64
debtors,
seeking to have an order for relief entered with respect to it, or seeking
to
adjudicate it a bankrupt or insolvent, or seeking reorganization, arrangement,
adjustment, winding-up, liquidation, dissolution, composition or other relief
with respect to it or its debts, or (B) seeking appointment of a receiver,
trustee, custodian, conservator or other similar official for it or for all
or
any substantial part of their assets or any Designated Holding Company, the
Borrower or any of its Subsidiaries shall make a general assignment for the
benefit of its creditors; or (ii) there shall be commenced against any
Designated Holding Company, the Borrower or any of its Subsidiaries any case,
proceeding or other action of a nature referred to in clause (i) above that
(A)
results in the entry of an order for relief or any such adjudication or
appointment or (B) remains undismissed, undischarged or unbonded for a period
of
60 days; or (iii) there shall be commenced against any Designated Holding
Company, the Borrower or any of its Subsidiaries any case, proceeding or
other
action seeking issuance of a warrant of attachment, execution, distraint
or
similar process against all or any substantial part of its assets that results
in the entry of an order for any such relief that shall not have been vacated,
discharged, or stayed or bonded pending appeal within 60 days from the entry
thereof; or (iv) any Designated Holding Company, the Borrower or any of its
Subsidiaries shall take any action in furtherance of, or indicating its consent
to, approval of, or acquiescence in, any of the acts set forth in clause
(i),
(ii), or (iii) above; or (v) any Designated Holding Company, the Borrower
or any
of its Subsidiaries shall generally not, or shall be unable to, or shall
admit
in writing its inability to, pay its debts as they become due;
or
(h)
(i) any
“accumulated funding deficiency” (as defined in Section 302 of ERISA), whether
or not waived, shall exist with respect to any Plan or any Lien in favor of
the
PBGC or a Plan shall arise on the assets of any Loan Party or any Commonly
Controlled Entity, (ii) a Reportable Event shall occur with respect to, or
proceedings shall commence to have a trustee appointed, or a trustee shall
be
appointed, to administer or to terminate, any Single Employer Plan, which
Reportable Event or commencement of proceedings or appointment of a trustee
is,
in the reasonable opinion of the Required Lenders, likely to result in the
termination of such Plan for purposes of Title IV of ERISA, (iii) any Single
Employer Plan shall terminate for purposes of Title IV of ERISA or (iv) any
Loan Party or any Commonly Controlled Entity shall, or in the reasonable opinion
of the Required Lenders is likely to, incur any liability in connection with
a
withdrawal from, or the Insolvency or Reorganization of, a Multiemployer Plan;
and in each case in clauses (i) through (iv) above, such event or condition,
together with all other such events or conditions, if any, could, in the sole
judgment of the Required Lenders, reasonably be expected to have a Material
Adverse Effect; or
(i) one
or
more judgments or decrees shall be entered against Holdings, the Borrower or
any
of its Subsidiaries involving in the aggregate a liability (to the extent not
paid or fully covered by insurance as to which the relevant insurance company
has not declined coverage) of $100,000,000 or more, and all such judgments
or
decrees shall not have been vacated, discharged, stayed or bonded pending appeal
within 30 days from the entry thereof; or
(j) (i)
the
Guarantee and Collateral Agreement shall cease, for any reason (other than
the
gross negligence or willful misconduct of the Administrative Agent), to be
in
full force and effect with respect to any material portion of the Collateral,
or
any Loan Party or any Affiliate of any Loan Party shall so assert, or (ii)
any
Lien created by the Guarantee and Collateral Agreement shall cease to be
enforceable and of the same effect and priority purported to be created thereby
with respect to any material portion of the Collateral (other than in connection
with releases in accordance with Section 10.14) or any Loan Party or any
Affiliate of any Loan Party shall so assert; or
65
(k) (i)
the
Paul Allen Group shall cease to have the power, directly or indirectly, to
vote
or direct the voting of Equity Interests having at least 35% (determined on
a
fully diluted basis) of the ordinary voting power for the management of the
Borrower; (ii) the consummation of any transaction (including, without
limitation, any merger or consolidation) the result of which is that any
“person” or “group” (as such terms are used in Section 13(d) and 14(d) of the
Securities Exchange Act of 1934, as amended), other than the Paul Allen Group
has the power, directly or indirectly, to vote or direct the voting of Equity
Interests having more than 35% (determined on a fully diluted basis) of the
ordinary voting power for the management of the Borrower, unless the Paul Allen
Group has the power, directly or indirectly, to vote or direct the voting of
Equity Interests having a greater percentage (determined on a fully diluted
basis) of the ordinary voting power for the management of the Borrower than
such
“person” or “group”, (iii) a Specified Change of Control shall occur; or (iv)
the Borrower shall cease to be a direct Wholly Owned Subsidiary of Holdings
(other than in connection with an issuance or sale of Equity Interests in the
Borrower to CCH; provided
that (x)
such Equity Interests are contributed to Holdings on the date of such issuance
and (y) no DHC Default shall have occurred and be continuing or result
therefrom); or
(l)
the
Borrower or any of its Subsidiaries shall have received a notice of termination
or suspension with respect to any of its CATV Franchises or CATV Systems from
the FCC or any Governmental Authority or other franchising authority or the
Borrower or any of its Subsidiaries or the grantors of any CATV Franchises
or
CATV Systems shall fail to renew such CATV Franchises or CATV Systems at the
stated expiration thereof (in each case other than (x) as a result of changes
in
law or regulation or other circumstances which result in any CATV Franchise
no
longer being required in connection with operation of the relevant CATV System
or (y) at a time when such CATV Franchise is not required for operation of
such
CATV System) if the percentage represented by such CATV Franchises or CATV
Systems and any other CATV Franchises or CATV Systems which are then so
terminated, suspended or not renewed of Consolidated Operating Cash Flow for
the
12-month period preceding the date of the termination, suspension or failure
to
renew, as the case may be, (giving pro forma
effect
to any acquisitions or Dispositions that have occurred since the beginning
of
such 12-month period as if such acquisitions or Dispositions had occurred at
the
beginning of such 12-month period), would exceed 10%, unless (i) an alternative
CATV Franchise or CATV System in form and substance reasonably satisfactory
to
the Required Lenders shall have been procured and come into effect prior to
or
concurrently with the termination or expiration date of such terminated,
suspended or non-renewed CATV Franchise or CATV System or (ii) the Borrower
or
such Subsidiary continues to operate and retain the revenues received from
such
systems after the stated termination or expiration and (x) is engaged in
negotiations to renew or extend such franchise rights and obtains such renewal
or extension within one year following the stated termination or expiration,
provided that such negotiations have not been terminated by either party
thereto, such franchise rights or the equivalent thereof have not been awarded
on an exclusive basis to a third Person and no final determination (within
the
meaning of Section 635 of the Communications Act of 1934, as amended) has been
made that the Borrower or such Subsidiary is not entitled to the renewal or
extension thereof or (y) the relevant Governmental Authority or other
franchising authority has not challenged the authority of the Borrower or such
Subsidiary to operate the CATV System in the relevant jurisdiction; or
(m)
except
as required or otherwise expressly permitted in this Agreement (i) in the case
of any Designated Holding Company or any Non-Recourse Subsidiary, fail to
satisfy customary formalities with respect to organizational separateness,
including, without limitation, (A) the maintenance of separate books and records
and (B) the maintenance of separate bank accounts in its own name; (ii) in
the
case of any Designated Holding Company
66
or
any
Non-Recourse Subsidiary, fail to act solely in their own names or the names
of
their managers and through authorized officers and agents; (iii) in the case
of
the Borrower or any of its Subsidiaries, make or agree to make any payment
to a
creditor of any Designated Holding Company or any Non-Recourse Subsidiary
in its
capacity as such; or (iv) in the case of any Designated Holding Company,
any
Non-Recourse Subsidiary, the Borrower or any of its Subsidiaries, (x) commingle
any money or other assets of any Designated Holding Company or any Non-Recourse
Subsidiary with any money or other assets of the Borrower or any of its
Subsidiaries or (y) take any action, or conduct its affairs in a manner,
which
could reasonably be expected to result in the separate organizational existence
of each Designated Holding Company or each Non-Recourse Subsidiary from the
Borrower and its Subsidiaries being ignored under any circumstance, and such
failure, action, agreement, event, condition or circumstance described in
any
clause of this paragraph (m) shall continue unremedied for a period of 30
days
after notice to the Borrower from the Administrative Agent or the Required
Lenders;
then,
and
in any such event, (A) if such event is an Event of Default specified in clause
(i) or (ii) of paragraph (g) above with respect to the Borrower, automatically
the Commitments shall immediately terminate and the Loans hereunder (with
accrued interest thereon) and all other amounts owing under this Agreement
and
the other Loan Documents (including all amounts of L/C Obligations, whether
or
not the beneficiaries of the then outstanding Letters of Credit shall have
presented the documents required thereunder) shall immediately become due and
payable, and (B) if such event is any other Event of Default, either or both
of
the following actions may be taken: (i) with the consent of the Required
Lenders, the Administrative Agent may, or upon the request of the Required
Lenders, the Administrative Agent shall, by notice to the Borrower declare
the
Commitments to be terminated forthwith, whereupon the Commitments shall
immediately terminate; and (ii) with the consent of the Required Lenders, the
Administrative Agent may, or upon the request of the Required Lenders, the
Administrative Agent shall, by notice to the Borrower, declare the Loans
hereunder (with accrued interest thereon) and all other amounts owing under
this
Agreement and the other Loan Documents (including all amounts of L/C
Obligations, whether or not the beneficiaries of the then outstanding Letters
of
Credit shall have presented the documents required thereunder) to be due and
payable forthwith, whereupon the same shall immediately become due and payable.
With respect to all Letters of Credit with respect to which presentment for
honor shall not have occurred at the time of an acceleration pursuant to this
paragraph, the Borrower shall at such time deposit in a cash collateral account
opened by the Administrative Agent an amount equal to the aggregate then undrawn
and unexpired amount of such Letters of Credit. Amounts held in such cash
collateral account shall be applied by the Administrative Agent to the payment
of drafts drawn under such Letters of Credit, and the unused portion thereof
after all such Letters of Credit shall have expired or been fully drawn upon,
if
any, shall be applied to repay other obligations of the Borrower hereunder
and
under the other Loan Documents. After all such Letters of Credit shall have
expired or been fully drawn upon, all Reimbursement Obligations shall have
been
satisfied and all other obligations of the Borrower hereunder and under the
other Loan Documents shall have been paid in full, the balance, if any, in
such
cash collateral account shall be returned to the Borrower (or such other Person
as may be lawfully entitled thereto). Except as expressly provided above in
this
Section, presentment, demand, protest and all other notices of any kind are
hereby expressly waived by the Borrower.
Notwithstanding
anything to the contrary herein, no Default or Event of Default shall be deemed
to occur pursuant to Section 8(e) or 8(f), and no DHC Default shall be deemed
to
occur, due to the existence of (a) a “Default” or “Event of Default” under any
indenture as in effect on the Restatement Effective Date governing DHC Debt,
or
any acceleration of, or any attempt to accelerate, such DHC Debt, in each case
resulting solely from the existence of the provisions contained in Section
7 of
the Senior Note Intercreditor Agreement, or (b) any cross-default,
cross-acceleration or similar provision in any Indebtedness of any Qualified
Parent Company that is applicable, or is invoked, solely as a result of the
67
circumstances
described in clause (a) above, in each case so long as (i) the Borrower is
in
compliance with the provisions of Section 11.04 of the CCO Senior Note Indenture
and (ii) no enforcement action against the assets of Holdings, the Borrower
or
any of its Subsidiaries by or on behalf of the holders of any such DHC Debt
has
occurred in respect of any judgment, decree or similar pronouncement, interim,
final or otherwise, in connection with the foregoing, unless such enforcement
action has been effectively stayed within 30 days from the entry thereof;
provided, that a Default and an Event of Default shall nevertheless be deemed
to
be in existence if (x) the Second Lien Guarantees (as defined in the Senior
Note
Intercreditor Agreement) are not automatically released ab initio
at the
time and in the manner contemplated by Section 11.04 of the CCO Senior Note
Indenture or (y) substantially concurrently with such release, any acceleration
or attempted acceleration described above is not rescinded. It is understood
that this paragraph does not apply to any cross-default, cross-acceleration
or
similar provision in any Indebtedness other than Indebtedness of any Qualified
Parent Company.
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
any Loan Party 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 any Loan Party a party thereto
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 any Loan Party.
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,
68
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 Holdings or 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, Holdings 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 a Loan Party
or any affiliate of a Loan Party, 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
Loan Parties and their 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 Loan Parties and their 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 any Loan Party or any affiliate
of a Loan Party that may come into the possession of the Administrative Agent
or
any of its officers, directors, employees, agents, attorneys-in-fact or
affiliates.
69
9.7. Indemnification.
The
Lenders agree to indemnify each Agent and each Co-Lead Arranger and Joint
Bookrunner (as such terms are defined on the cover page hereof) in its capacity
as such (to the extent not reimbursed by Holdings or the Borrower and without
limiting the obligation of Holdings or 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 Commitments shall have terminated and
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,
the
Commitments, 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 any Loan Party as though such Agent were
not
an Agent. With respect to its Loans made or renewed by it and with respect
to
any Letter of Credit issued or participated in 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) or Section 8(g) 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 Syndication Agents.
The
Co-Documentation Agents and Syndication Agents shall have no duties or
responsibilities hereunder in their capacity as such.
70
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 each Loan Party party to the
relevant Loan Document may, or, with the written consent of the Required
Lenders, the Administrative Agent and each Loan Party party to the relevant
Loan
Document 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 Loan Parties 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,
extend the scheduled date of or reduce the amount of any amortization payment
in
respect of any Term Loan, reduce the stated rate of any interest or fee payable
hereunder or extend the scheduled date of any payment thereof, or increase
the
amount or extend the expiration date of any Lender’s Commitment, 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 or release all or substantially all of
the
Subsidiary Guarantors from their obligations under the Guarantee and Collateral
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; (iii) reduce the percentage
specified in the definition of Majority Facility Lenders with respect to any
Facility without the written consent of all Lenders under such Facility; (iv)
amend, modify or waive any provision of Section 9 without the written consent
of
the Administrative Agent; (v) amend, modify or waive any provision of Section
2.4 or 2.5 without the written consent of the Swingline Lender; or (vi) amend,
modify or waive any provision of Section 3 without the written consent of each
affected Issuing Lender. Any such waiver and any such amendment, supplement
or
modification shall apply equally to each of the Lenders and shall be binding
upon the Loan Parties, the Lenders, the Agents and all future holders of the
Loans. In the case of any waiver, the Loan Parties, 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.
In
addition, notwithstanding the foregoing, this Agreement may be amended with
the
written consent of the Administrative Agent, the Borrower and the Lenders
providing the relevant Replacement Term Loans (as defined below) to permit
the
refinancing or modification of all outstanding Term Loans (“Replaced
Term Loans”)
with a
replacement term loan facility hereunder (“Replacement
Term Loans”),
provided
that (a)
the aggregate principal amount of such Replacement Term Loans shall not exceed
the aggregate principal amount of such Replaced Term Loans, (b) the Applicable
Margin for such Replacement Term Loans shall not be higher than the Applicable
Margin for such Replaced Term Loans, (c) the weighted average life to maturity
of such Replacement Term Loans shall not be shorter than the weighted average
life to maturity of such Replaced Term Loans at the time of such refinancing
and
(d) all other terms applicable to such Replacement Term Loans shall be
substantially identical to, or less favorable to the Lenders providing such
Replacement Term Loans than, those applicable to such Replaced Term Loans,
except to the extent necessary to provide for covenants and other terms
applicable
71
to
any
period after the latest final maturity of the Term Loans in effect immediately
prior to such refinancing.
In
addition, notwithstanding the foregoing, this Agreement may be amended with
the
written consent of the Administrative Agent, the Borrower and the Lenders
providing the relevant Replacement Existing Term Loans (as defined below) to
permit the refinancing or modification of any or all outstanding Existing Term
Loans (“Replaced
Existing Term Loans”)
with
replacement term loans hereunder in the same aggregate principal amount
(“Replacement
Existing Term Loans”),
provided
that all
terms applicable to such Replacement Existing Term Loans shall be substantially
identical to those applicable to the New Term Loans. Each Lender agrees that
no
prior notice shall be required to be given to prepay Existing Term Loans
pursuant to this paragraph and no amounts shall be payable by the Borrower
under
Section 2.18 in connection therewith. In the case of any such replacement,
the
Borrower agrees to take all actions reasonably requested by the Administrative
Agent (without taking any actions which would result in incurring any
obligations under Section 2.18) such that, as promptly as practicable after
the
borrowing thereof, each Term Lender shall hold a ratable portion of each
Eurodollar Tranche applicable to the Term Loans.
In
addition, notwithstanding the foregoing, this Agreement may be amended with
the
written consent of the Administrative Agent, the Borrower and the Lenders
providing the relevant Replacement Revolving Commitments (as defined below)
to
permit the replacement or modification of all outstanding Revolving Commitments
(“Replaced
Revolving Commitments”)
with a
replacement revolving credit facility hereunder (“Replacement
Revolving Commitments”),
provided
that (a)
the aggregate amount of such Replacement Revolving Commitments shall not exceed
the aggregate amount of such Replaced Revolving Commitments, (b) such
Replacement Revolving Commitments shall not have a scheduled termination or
any
scheduled reductions prior to April 27, 2010 and (c) all other terms applicable
to such Replacement Revolving Commitments shall be substantially identical
to,
or less favorable to the Lenders providing such Replacement Revolving
Commitments than, those applicable to such Replaced Revolving Commitments,
except to the extent necessary to provide for covenants and other terms
applicable to any period after the latest final maturity of the Term
Loans.
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 Holdings, 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:
|
Any
Loan Party:
|
c/o
Charter Communications Holdings, LLC
12405
Powerscourt Drive
St.
Louis, Missouri 63131
Attention:
Senior Vice President - Strategic Planning
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
|
72
|
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:
|
JPMorgan
Chase Bank
1111
Fannin Street, 10th
Floor
Houston,
Texas 77002
Attention:
Shadia Aminu
Telecopy:
(713) 750-2358
Telephone:
(713) 750-7933
Email:
shadia.o.aminu@jpmchase.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 any Loan Party to the second and third
addressees identified above under “Any Loan Party:” 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 and other extensions of credit
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, each Co-Lead Arranger and Joint Bookrunner (as such terms are defined
on
the
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
(including any Affiliate of the Issuing Lender that issues any Letter of
Credit), 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.
74
(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 its Commitments and 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, an Approved Fund (as defined below), other than in the
case of any assignment of a Revolving Commitment to an Assignee that is not
already a Revolving Lender, or (II) if an Event of Default under Section 8.1(a)
or (g) 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 Term 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 Commitments or Loans under any Facility, (x) the amount of
the Commitments or 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 $5,000,000, in the case of the Revolving Facility ($1,000,000 if
the
Assignee is a Lender, an affiliate of a Lender or an Approved Fund) or,
$1,000,000 in the case of the Term Facility or the Incremental Term Facility
($250,000
if the Assignee is a Lender, an affiliate of a Lender or an Approved Fund)
and
(y) the Aggregate Exposure of such assigning Lender shall not fall below
$3,000,000 in the case of the Revolving Facility ($1,000,000 if the Assignee
is
a Lender, an affiliate of a Lender or an Approved Fund) or $1,000,000 in the
case of in
the
case of the Term Facility or the Incremental Term Facility ($250,000
if the Assignee is a Lender, an affiliate of a Lender or an Approved Fund),
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 under
Section 8.1(a) or (g) 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; 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.
75
(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 Commitments of, and principal amount of the Loans and
L/C
Obligations 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, the Issuing Lender 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 Commitments and the 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, the Issuing Lender 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
76
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). Each of Holdings, 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 or to the Lenders under a particular Facility,
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 Holdings
or the Borrower, any such notice being expressly waived by Holdings
and the Borrower to the extent permitted by applicable law, upon any amount
becoming due and payable by Holdings
or 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
Holdings
or 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
77
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 Holdings,
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.
Each of
Holdings and the Borrower hereby irrevocably and unconditionally:
(a) 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;
(b) 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;
(c) 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 Holdings or the Borrower, as the
case
may be 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;
(d) 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
78
(e) 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.
Each of
Holdings and the Borrower hereby acknowledges that:
(a) it
has
been advised by counsel in the negotiation, execution and delivery of this
Agreement and the other Loan Documents;
(b) neither
any Agent nor any Lender has any fiduciary relationship with or duty to Holdings
or 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 Holdings and the Borrower, on the other hand, in connection
herewith or therewith is solely that of debtor and creditor; and
(c) 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 Holdings the Borrower and the Agents and the Lenders.
10.14. Release
of Guarantees and Liens.
(a)
Notwithstanding anything to the contrary contained herein or in any other Loan
Document, the Administrative Agent is hereby irrevocably authorized by each
Lender (without requirement of notice to or consent of any Lender except as
expressly required by Section 10.1) and is hereby required to promptly take
any
action requested by the Borrower having the effect of releasing any Collateral
or guarantee obligations (i) to the extent necessary to permit consummation
of
any transaction not prohibited by any Loan Document or that has been consented
to in accordance with Section 10.1 or (ii) under the circumstances described
in
paragraph (b) below. Any such release of Collateral may be effected pursuant
to
a Release or such other documentation as shall be reasonably acceptable to
the
Administrative Agent.
(b) At
such
time as the Loans, the Reimbursement Obligations and the other obligations
under
the Loan Documents (other than (i) obligations under or in respect of Hedge
Agreements and (ii) contingent indemnification obligations) shall have been
paid
in full, the Revolving Commitments have been terminated and no Letters of Credit
shall be outstanding, the Collateral shall be released from the Liens created
by
the Guarantee and Collateral Agreement, and the Guarantee and Collateral
Agreement and all obligations (other than those expressly stated to survive
such
termination) of the Administrative Agent and each Loan Party under the Guarantee
and Collateral 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 any Loan Party pursuant to this Agreement that is designated
by such Loan Party 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
79
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.
HOLDINGS, 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.
80
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.
CCO
HOLDINGS, LLC
By:
/s/
Eloise Schmitz
Name:
Eloise
Schmitz
Title:
Senior Vice President - Strategic Planning
CHARTER
COMMUNICATIONS OPERATING, LLC
By:
/s/
Eloise Schmitz
Name:
Eloise Schmitz
Title:
Senior Vice President - Strategic Planning
JPMORGAN
CHASE BANK, N.A.,
as
Administrative Agent and as a Syndication Agent
By:
/s/
Tracy Navin Ewing
Name:
Tracy Navin Ewing
Title:
Vice President
BANK
OF
AMERICA, N.A.,
as
a
Syndication Agent
By:
/s/
William A. Bowen, Jr.
Name:
William A. Bowen, Jr.
Title:
Managing Director
CITICORP
NORTH AMERICA, INC.,
as
a
Co-Documentation Agent
By:
/s/
Eric Davis
Name:
Eric Davis
Title:
Vice President
CREDIT
SUISSE SECURITIES (USA) LLC,
as
a
Co-Documentation Agent
By:
/s/
Eric Federman
Name:
Eric Federman
Title:
Managing Director
DEUTSCHE
BANK SECURITIES INC.,
as
a
Co-Documentation Agent
By:
/s/
Malcolm Morris
Name:
Malcolm
Morris
Title:
Managing Director
By:
/s/
Gregory Shefrin
Name:
Gregory Shefrin
Title:
Vice President
GENERAL
ELECTRIC CAPITAL CORPORATION,
as
a
Co-Documentation Agent
By:
/s/
Karl Kiefier
Name:
Karl
Kiefier
Title:
Duly Authorized Signatory
Exhibit
10.2
AMENDED
AND RESTATED GUARANTEE AND COLLATERAL AGREEMENT
made
by
CCO
HOLDINGS, LLC
CHARTER
COMMUNICATIONS OPERATING, LLC
and
certain of its Subsidiaries
in
favor
of
JPMORGAN
CHASE BANK, N.A.,
as
Administrative Agent
Dated
as
of March 18, 1999,
as
Amended and Restated as of March 6, 2007
TABLE
OF
CONTENTS
Page
| SECTION I. DEFINED TERMS |
1
|
||
| Section 1.1 | Definitions |
1
|
|
| Section 1.2 |
Other
Definitional Provisions
|
6
|
|
| SECTION 2. GUARANTEE |
6
|
||
| Section 2.1 |
Guarantee
|
6
|
|
| Section 2.2 |
Right
of Contribution
|
6
|
|
| Section 2.3 |
No
Subrogation
|
7
|
|
| Section 2.4 | Amendments, etc. with respect to the Borrower Obligations |
7
|
|
| Section 2.5 | Guarantee Absolute and Unconditional |
7
|
|
| Section 2.6 | Non-Facility Letters of Credit |
8
|
|
| Section 2.7 | Reinstatement |
8
|
|
| Section 2.8 | Payments |
8
|
|
| SECTION 3. GRANT OF SECURITY INTEREST |
8
|
||
| SECTION 4. CERTIFICATED INTERESTS |
9
|
||
| Section 4.1 |
Pledged
Partnership Interests
|
9
|
|
| Section 4.2 |
Pledged
LLC Interests
|
9
|
|
| SECTION 5. REPRESENTATIONS AND WARRANTIES |
9
|
||
|
|
|||
| Section 5.1 |
Title;
No other Liens
|
9
|
|
| Section 5.2 |
Perfected
First Priority Liens
|
10
|
|
| Section 5.3 | Jurisdiction of Organization |
10
|
|
| Section 5.4 | Pledged Securities |
10
|
|
| SECTION 6. COVENANTS |
10
|
||
| Section 6.1 |
Delivery
of Instruments, Certificated Securities
and Chattel
Paper
|
10
|
|
| Section 6.2 | Insurance |
11
|
|
| Section 6.3 | Maintenance of Perfect Security Interest; Further Documentation |
11
|
|
| Section 6.4 | Changes in Locations, Name, etc |
11
|
|
| Section 6.5 | Pledged Securities |
11
|
|
| SECTION 7. REMEDIAL PROVISIONS |
12
|
||
| Section 7.1 |
Investment
Property
|
12
|
|
| Section 7.2 |
Proceeds
to be Turned Over to Administrative Agent
|
13
|
|
| Section 7.3 | Application of Proceeds |
13
|
|
| Section 7.4 | Code and Other Remedies |
14
|
|
| Section 7.5 | Registration Rights |
14
|
|
| Section 7.6 | Deficiency |
15
|
|
| Section 7.7 | Certain Matters Relating to Pledged Receivables |
15
|
|
| Section 7.8 | Communications with Obligors; Grantors Remain Liable |
16
|
|
| Section 7.9 | Silo Credit Agreements, etc |
16
|
|
| SECTION 8. THE ADMINISTRATIVE AGENT |
16
|
||
| Section 8.1 | Administrative Agent's Appointment as Attorney-in-Fact, etc |
16
|
|
| Section 8.2 | Duty of Administrative Agent |
18
|
|
| Section 8.3 | Financing Statements |
18
|
|
| Section 8.4 | Authority of Administrative Agent |
18
|
| SECTION 9. MISCELLANEOUS |
19
|
||
| Section 9.1 |
Amendments
in Writing
|
19
|
|
| Section 9.2 |
Notices
|
19
|
|
| Section 9.3 |
No
Waiver by Course of Conduct; Cumulative Remedies
|
19
|
|
| Section 9.4 | Enforcement Expenses; Indemnification |
19
|
|
| Section 9.5 | Successors and Assigns |
19
|
|
| Section 9.6 |
Set-off
|
20
|
|
| Section 9.7 | Counterparts |
20
|
|
| Section 9.8 | Severability |
20
|
|
| Section 9.9 | Governmental Approvals |
20
|
|
| Section 9.10 | Section Headings |
22
|
|
| Section 9.11 | Integration |
22
|
|
| Section 9.12 | GOVERNING LAW |
22
|
|
| Section 9.13 | Submission To Jurisdiction; Waivers |
22
|
|
| Section 9.14 | Acknowledgments |
22
|
|
| Section 9.15 | Additional Grantors; Release |
23
|
|
| Section 9.16 | WAIVER OF JURY TRIAL |
24
|
SCHEDULES
Schedule
1 Notice
Addresses
Schedule
2 Pledged
Securities
Schedule
3 Perfection
Matters
Schedule
4 Jurisdictions
of Organization
Schedule
5 Intellectual
Property
Schedule
6 List
of
Subsidiary Guarantors
AMENDED
AND RESTATED GUARANTEE AND COLLATERAL AGREEMENT
AMENDED
AND RESTATED GUARANTEE AND COLLATERAL AGREEMENT, dated as of March 18, 1999,
as
amended and restated as of March 6, 2007, made by each of the signatories
hereto
(together with any other entity that may become a party hereto as provided
herein, the “Grantors”),
in
favor of JPMORGAN CHASE BANK, N.A., as Administrative Agent (in such capacity,
the “Administrative
Agent”)
for
the banks and other financial institutions or entities (the “Lenders”)
from
time to time parties to the Amended and Restated Credit Agreement, dated
as of
March 18, 1999, as amended and restated as of March 6, 2007 (as further
amended, supplemented, restated or otherwise modified from time to time,
the
“Credit
Agreement”),
among
CHARTER COMMUNICATIONS OPERATING, LLC (the “Borrower”),
CCO
HOLDINGS, LLC (“Holdings”),
the
Lenders, the Administrative Agent and the Syndication Agents and
Co-Documentation Agents party thereto.
W
I T
N E S S E T H:
WHEREAS,
the Grantors and certain other signatories thereto have entered into a Guarantee
and Collateral Agreement dated as of March 18, 1999, as amended and restated
as
of April 28, 2006, in favor of JPMorgan Chase Bank, N.A., as Administrative
Agent (the “Existing
Guarantee and Collateral Agreement”);
WHEREAS,
it is a condition precedent to the Restatement Effective Date that the Grantors
shall have executed and delivered this Agreement to the Administrative Agent
for
the ratable benefit of the Secured Parties;
WHEREAS,
the parties hereto have agreed to amend and restate the Existing Guarantee
and
Collateral Agreement as provided in this Agreement; and
WHEREAS,
it is the intent of the parties hereto that this Agreement not constitute
a
novation of the obligations and liabilities existing under the Existing
Guarantee and Collateral Agreement or evidence satisfaction of any of such
obligations and that this Agreement amend and restate in its entirety the
Existing Guarantee and Collateral Agreement and re-evidence the obligations
of
the Grantors outstanding thereunder;
NOW,
THEREFORE, in consideration of the above premises, the parties hereto hereby
agree that on the Restatement Effective Date, the Existing Guarantee and
Collateral Agreement shall be amended and restated in its entirety as
follows:
SECTION
1. DEFINED
TERMS
1.1 Definitions.
(a)
Unless
otherwise defined herein, terms defined in the Credit Agreement and used
herein
shall have the meanings given to them in the Credit Agreement, and the following
terms are used herein as defined in the Applicable UCC: Accounts, Certificated
Security, Chattel Paper, Documents, Equipment, Fixtures, General Intangibles,
Instruments, Inventory, Letter-of-Credit Rights and Supporting
Obligations.
(b)
The
following terms shall have the following meanings:
“Additional
Collateral”:
all of
the following property of the Borrower or any Subsidiary Guarantor, to the
extent that a security interest in such property can be perfected by the
filing
of a Uniform Commercial Code financing statement: all Accounts, all Chattel
Paper, all Documents, all Equipment, all Fixtures, all General Intangibles,
all
Instruments, all Intellectual Property, all Inventory, all Investment Property
and all other property not otherwise described in this definition.
“Agreement”:
this
Amended and Restated Guarantee and Collateral Agreement, as the same may
be
amended, supplemented, restated or otherwise modified from time to
time.
“Applicable
UCC”:
the
Uniform Commercial Code as from time to time in effect in the State of
Delaware.
“Borrower
Obligations”:
the
collective reference to the unpaid principal of and interest on the Loans
and
Reimbursement Obligations and all other obligations and liabilities of the
Borrower (including, without limitation, any increase in the amounts of the
Loans and/or Reimbursement Obligations together with any and all interest
accruing at the then applicable rate provided in the Credit Agreement after
the
maturity of the Loans and Reimbursement Obligations and interest accruing
at the
then applicable rate provided in the Credit Agreement after the filing of
any
petition in bankruptcy, or the commencement of any insolvency, reorganization
or
like proceeding, relating to the Borrower, whether or not a claim for
post-filing or post-petition interest is allowed in such proceeding) to the
Administrative Agent or any Lender (or, in the case of any Specified Hedge
Agreement or Specified Cash Management Agreement, any Affiliate of any Lender
and any former Lender to the extent provided in the definition of “Specified
Hedge Agreement” or “Specified Cash Management Agreement” in the Credit
Agreement), whether direct or indirect, absolute or contingent, due or to
become
due, or now existing or hereafter incurred, which may arise under, out of,
or in
connection with, the Credit Agreement, this Agreement, the other Loan Documents,
any Letter of Credit, any Non-Facility Letter of Credit, any Specified Hedge
Agreement, any Specified Cash Management Agreement or any other document
made,
delivered or given in connection with any of the foregoing, in each case
whether
on account of principal, interest, reimbursement obligations, fees, indemnities,
costs, expenses or otherwise (including, without limitation, all fees and
disbursements of counsel that are required to be paid by the Borrower pursuant
to the terms of any of the foregoing agreements).
“Collateral”:
as
defined in Section 3.
“Collateral
Account”:
any
collateral account established by the Administrative Agent as provided in
Section 7.2.
“Foreign
Subsidiary”:
any
Subsidiary organized under the laws of any jurisdiction outside the United
States of America.
“Foreign
Subsidiary Voting Equity Interests”:
the
voting Equity Interests of any Foreign Subsidiary.
“Grantor”:
as
defined in the preamble.
“Guarantor
Obligations”:
with
respect to any Guarantor, all obligations and liabilities of such Guarantor
which may arise under or in connection with this Agreement (including, without
limitation, Section 2), any other Loan Document to which such Guarantor is
a
party, any Non-Facility Letter of Credit issued for such Guarantor’s account,
any Specified Hedge Agreement or, in the case of any Subsidiary Guarantor,
any
Specified Cash Management Agreement to which such Guarantor is a party, in
each
case whether on account of guarantee obligations, reimbursement obligations,
fees, indemnities, costs, expenses or otherwise (including, without limitation,
all fees and disbursements of counsel that are required to be paid by such
Guarantor pursuant to the terms of this Agreement or any other Loan
Document).
“Guarantors”:
the
collective reference to each Grantor, other than the Borrower.
2
“Intellectual
Property”:
the
collective reference to all rights, priorities and privileges in and to the
Patents, the Patent Licenses, the Trademarks and the Trademark Licenses,
and all
rights to sue at law or in equity for any infringement or other impairment
thereof, in each case, whether arising under United States, multinational
or
foreign laws or otherwise, including the right to receive all proceeds and
damages therefrom.
“Intercompany
Obligations”:
all
obligations, whether constituting General Intangibles or otherwise, owing
to the
Borrower or any Subsidiary Grantor by any Affiliate of the Borrower or such
Subsidiary Grantor, and with respect to Holdings, all obligations, whether
constituting General Intangibles or otherwise, owing to Holdings by the Borrower
or any of its Subsidiaries.
“Investment
Property”:
the
collective reference to (i) all “investment property” as such term is defined in
Section 9-102(a)(49) of the Applicable UCC (other than any Foreign Subsidiary
Voting Stock excluded from the definition of “Pledged Stock”) and (ii) whether
or not constituting “investment property” as so defined, all Pledged Notes and
all Pledged Stock.
“Issuers”:
the
collective reference to each issuer of any Pledged Securities.
“Non-Facility
Guarantee Obligations”:
as
defined in Section 2.6.
“Non-Facility
Guarantor Obligations”:
the
Guarantor Obligations of each Guarantor in respect of Non-Facility Letters
of
Credit issued for such Guarantor’s account and Specified Hedge Agreements or, in
the case of any Subsidiary Guarantor, any Specified Cash Management Agreements
to which such Guarantor is a party.
“Non-Facility
Letters of Credit”:
any
letters of credit issued by any Lender (or any Affiliate of any Lender) pursuant
to Section 7.2(h) of the Credit Agreement.
“Obligations”:
(i) in
the case of the Borrower, the Borrower Obligations, and (ii) in the case
of each
Guarantor, its Guarantor Obligations, in each case including Non-Facility
Guarantee Obligations.
“Patents”:
(i)
all letters patent of the United States, any other country or any political
subdivision thereof, all reissues and extensions thereof and all goodwill
associated therewith, including, without limitation, any of the foregoing
referred to in Schedule
5,
(ii)
all applications for letters patent of the United States or any other country
and all divisions, continuations and continuations-in-part thereof, including,
without limitation, any of the foregoing referred to in Schedule
5,
and
(iii) all rights to obtain any reissues or extensions of the foregoing.
“Patent
License”:
all
agreements, whether written or oral, providing for the grant by or to any
Grantor of any right to manufacture, use or sell any invention covered in
whole
or in part by a Patent, including, without limitation, any of the foregoing
referred to in Schedule
5
(it
being understood that oral agreements are not required to be listed on Schedule
5).
“Pledged
LLC Interests”:
in
each case, whether now existing or hereafter acquired, all of a Grantor’s right,
title and interest in and to (it being acknowledged and agreed that with
respect
to Holdings, this definition shall apply only to the right, title and interests
of Holdings in the Borrower and its Subsidiaries):
(i)
any
Issuer (other than any Non-Recourse Subsidiary) that is a limited liability
company, but not any of such Grantor’s obligations from time to time as a holder
of interests in any such Issuer (unless the Administrative Agent or its
designee, on behalf of
3
the
Administrative Agent, shall elect to become a holder of interests in any
such
Issuer in connection with its exercise of remedies pursuant to the terms
hereof);
(ii)
any
and all moneys due and to become due to such Grantor now or in the future
by way
of a distribution made to such Grantor in its capacity as a holder of interests
in any such Issuer or otherwise in respect of such Grantor’s interest as a
holder of interests in any such Issuer;
(iii)
any
other property of any such Issuer to which such Grantor now or in the future
may
be entitled in respect of its interests in any such Issuer by way of
distribution, return of capital or otherwise;
(iv)
any
other claim or right which such Grantor now has or may in the future acquire
in
respect of its interests in any such Issuer;
(v)
the
organizational documents of any such Issuer;
(vi)
all
certificates, options or rights of any nature whatsoever that may be issued
or
granted by any such Issuer to such Grantor while this Agreement is in effect;
and
(vii)
to
the extent not otherwise included, all Proceeds of any or all of the
foregoing.
“Pledged
Notes”:
with
respect to the Borrower and the Subsidiary Grantors, any promissory note
evidencing loans made by any Grantor to any member of the Charter Group,
and
with respect to Holdings, any promissory note evidencing loans made by Holdings
to the Borrower or any of its Subsidiaries, including in each case without
limitation, all promissory notes listed on Schedule
2.
“Pledged
Partnership Interests”:
in
each case, whether now existing or hereafter acquired, all of a Grantor’s right,
title and interest in and to (it being acknowledged and agreed that with
respect
to Holdings, this definition shall apply only to the right, title and interests
of Holdings in the Borrower and its Subsidiaries):
(i) any
Issuer (other than any Non-Recourse Subsidiary) that is a partnership, but
not
any of such Grantor’s obligations from time to time as a general or limited
partner, as the case may be, in any such Issuer (unless the Administrative
Agent
or its designee, on behalf of the Administrative Agent, shall elect to become
a
general or limited partner, as the case may be, in any such Issuer in connection
with its exercise of remedies pursuant to the terms hereof);
(ii)
any
and
all moneys due and to become due to such Grantor now or in the future by
way of
a distribution made to such Grantor in its capacity as a general partner
or
limited partner, as the case may be, in any such Issuer or otherwise in respect
of such Grantor’s interest as a general partner or limited partner, as the case
may be, in any such Issuer;
(iii)
any
other
property of any such Issuer to which such Grantor now or in the future may
be
entitled in respect of its interests as a general partner or limited partner,
as
the case may be, in any such Issuer by way of distribution, return of capital
or
otherwise;
(iv)
any
other
claim or right which such Grantor now has or may in the future acquire in
respect of its general or limited partnership interests in any such
Issuer;
4
(v)
the
partnership agreement or other organizational documents of any such
Issuer;
(vi)
all
certificates, options or rights of any nature whatsoever that may be issued
or
granted by any such Issuer to such Grantor while this Agreement is in effect;
and
(vii)
to
the
extent not otherwise included, all Proceeds of any or all of the
foregoing.
“Pledged
Receivables”:
the
collective reference to all Receivables pledged by any Grantor as
Collateral.
“Pledged
Securities”:
the
collective reference to the Pledged Notes and the Pledged Stock, together
with
the Proceeds thereof.
“Pledged
Stock”:
the
Equity Interests listed on Schedule
2,
together with any other shares, stock certificates, options, interests or
rights
of any nature whatsoever in respect of the Equity Interests (i) with respect
to
the Borrower and any Subsidiary Grantor, of any Person (other than any
Non-Recourse Subsidiary) that may be issued or granted to, or held by, the
Borrower and any Subsidiary Grantor, and (ii) with respect to Holdings, of
the
Borrower or any of its Subsidiaries, in each case while this Agreement is
in
effect including, in any event, the Pledged LLC Interests and Pledged
Partnership Interests.
“Proceeds”:
all
“proceeds” as such term is defined in Section 9-102(a)(64) of the Applicable UCC
and, in any event, shall include, without limitation, all dividends,
distributions or other income from the Pledged Securities and Investment
Property, collections thereon or distributions or payments with respect
thereto.
“Receivable”:
any
right to payment for goods sold or leased or for services rendered, whether
or
not such right is evidenced by an Instrument or Chattel Paper and whether
or not
it has been earned by performance (including, without limitation, any
Account).
“Securities
Act”:
the
Securities Act of 1933, as amended.
“Secured
Parties”:
the
collective reference to the Administrative Agent, the Lenders and any affiliate
of any Lender to which Borrower Obligations or Guarantor Obligations, as
applicable, are owed.
“Subsidiary
Grantor”:
any
Subsidiary of the Borrower that is a Grantor.
“Trademarks”:
(i)
all trademarks, trade names, corporate names, company names, business names,
fictitious business names, trade styles, service marks, logos and other source
or business identifiers, and all goodwill associated therewith, now existing
or
hereafter adopted or acquired, all registrations and recordings thereof,
and all
applications in connection therewith, whether in the United States Patent
and
Trademark Office or in any similar office or agency of the United States,
any
State thereof or any other country or any political subdivision thereof,
or
otherwise, and all common-law rights related thereto, including, without
limitation, any of the foregoing referred to in Schedule
5,
and
(ii) the right to obtain all renewals thereof.
“Trademark
License”:
any
agreement, whether written or oral, providing for the grant by or to any
Grantor
of any right to use any Trademark, including, without limitation, any of
the
foregoing referred to in Schedule
5
(it
being understood that oral agreements are not required to be listed on Schedule
5).
5
1.2 Other
Definitional Provisions.
(a)
The
words “hereof,” “herein”, “hereto” and “hereunder” and words of similar import
when used in this Agreement shall refer to this Agreement as a whole and
not to
any particular provision of this Agreement, and Section and Schedule references
are to this Agreement unless otherwise specified.
(b)
The
meanings given to terms defined herein shall be equally applicable to both
the
singular and plural forms of such terms.
(c)
Where
the context requires, terms relating to the Collateral or any part thereof,
when
used in relation to a Grantor, shall refer to such Grantor’s Collateral or the
relevant part thereof.
SECTION
2. GUARANTEE
2.1 Guarantee.
(a)
Each of
the Guarantors hereby confirms that it guarantees, jointly and severally,
unconditionally and irrevocably, to the Administrative Agent, for the ratable
benefit of the Secured Parties and their respective successors, indorsees,
transferees and assigns, the prompt and complete payment and performance
by the
Borrower when due (whether at the stated maturity, by acceleration or otherwise)
of the Borrower Obligations. It is understood that, with respect to each
Guarantor party to this Agreement on the date hereof, such Guarantor’s
guarantee constitutes a continuation of its guarantee under the Existing
Guarantee and Collateral Agreement (it being further understood that such
guarantee will apply to the full amount of the Borrower Obligations).
(b)
Anything
herein or in any other Loan Document to the contrary notwithstanding, the
maximum liability of each Guarantor hereunder and under the other Loan Documents
shall in no event exceed the amount which can be guaranteed by such Guarantor
under applicable federal and state laws relating to the insolvency of debtors
(after giving effect to the right of contribution established in Section
2.2).
(c)
Each
Guarantor agrees that the Borrower Obligations may at any time and from time
to
time exceed the amount of the liability of such Guarantor hereunder without
impairing the guarantee contained in this Section 2 or affecting the rights
and
remedies of the Administrative Agent or any Lender hereunder.
(d)
The
guarantee contained in this Section 2 shall remain in full force and effect
until all the Borrower Obligations shall have been satisfied by payment in
full,
no Letter of Credit shall be outstanding and the Commitments shall be
terminated, notwithstanding that from time to time during the term of the
Credit
Agreement the Borrower may be free from any Borrower Obligations.
(e)
No
payment made by the Borrower, any of the Guarantors, any other guarantor
or any
other Person or received or collected by the Administrative Agent or any
Lender
from the Borrower, any of the Guarantors, any other guarantor or any other
Person by virtue of any action or proceeding or any set-off or appropriation
or
application at any time or from time to time in reduction of or in payment
of
the Borrower Obligations shall be deemed to modify, reduce, release or otherwise
affect the liability of any Guarantor hereunder which shall, notwithstanding
any
such payment (other than any payment made by such Guarantor in respect of
the
Borrower Obligations or any payment received or collected from such Guarantor
in
respect of the Borrower Obligations), remain liable for the Borrower Obligations
up to the maximum liability of such Guarantor hereunder until the Borrower
Obligations are paid in full, no Letter of Credit shall be outstanding and
the
Commitments are terminated.
2.2 Right
of Contribution.
Each
Subsidiary Guarantor hereby agrees that to the extent that a Subsidiary
Guarantor shall have paid more than its proportionate share of any payment
made
hereunder, such Subsidiary Guarantor shall be entitled to seek and receive
contribution from and against
6
any
other
Subsidiary Guarantor hereunder which has not paid its proportionate share
of
such payment. Each Subsidiary Guarantor’s right of contribution shall be subject
to the terms and conditions of Section 2.3. The provisions of this Section
2.2
shall in no respect limit the obligations and liabilities of any Subsidiary
Guarantor to the Administrative Agent and the Lenders, and each Subsidiary
Guarantor shall remain liable to the Administrative Agent and the Lenders
for
the full amount guaranteed by such Subsidiary Guarantor
hereunder.
2.3 No
Subrogation.
Notwithstanding any payment made by any Guarantor hereunder or any set-off
or
application of funds of any Guarantor by the Administrative Agent or any
Lender,
no Guarantor shall be entitled to be subrogated to any of the rights of the
Administrative Agent or any Lender against the Borrower or any other Guarantor
or any collateral security or guarantee or right of offset held by the
Administrative Agent or any Lender for the payment of the Borrower Obligations,
nor shall any Guarantor seek or be entitled to seek any contribution or
reimbursement from the Borrower or any other Guarantor in respect of payments
made by such Guarantor hereunder, until all amounts owing to the Administrative
Agent and the Lenders by the Borrower on account of the Borrower Obligations
are
paid in full, no Letter of Credit shall be outstanding and the Commitments
are
terminated. If any amount shall be paid to any Guarantor on account of such
subrogation rights at any time when all of the Borrower Obligations shall
not
have been paid in full, such amount shall be held by such Guarantor in trust
for
the Administrative Agent and the Lenders, segregated from other funds of
such
Guarantor, and shall, forthwith upon receipt by such Guarantor, be turned
over
to the Administrative Agent in the exact form received by such Guarantor
(duly
indorsed by such Guarantor to the Administrative Agent, if required), to
be
applied against the Borrower Obligations, whether matured or unmatured, in
such
order as the Administrative Agent may determine.
2.4 Amendments,
etc. with respect to the Borrower Obligations.
Each
Guarantor shall remain obligated hereunder notwithstanding that, without
any
reservation of rights against any Guarantor and without notice to or further
assent by any Guarantor, any demand for payment of any of the Borrower
Obligations may be rescinded and any of the Borrower Obligations continued,
and
the Borrower Obligations, or the liability of any other Person upon or for
any
part thereof, or any collateral security or guarantee therefor or right of
offset with respect thereto, may, from time to time, in whole or in part,
be
renewed, extended, amended, modified, accelerated, compromised, waived,
surrendered or released and the Credit Agreement and the other Loan Documents
and any other documents executed and delivered in connection therewith may,
from
time to time, be amended, modified, supplemented, restated or terminated
or the
obligations thereunder increased, in whole or in part and any collateral
security, guarantee or right of offset at any time held for the payment of
the
Borrower Obligations may be sold, exchanged, waived, surrendered or released.
Neither the Administrative Agent nor any Lender shall have any obligation
to
protect, secure, perfect or insure any Lien at any time held by it as security
for the Borrower Obligations or for the guarantee contained in this Section
2 or
any property subject thereto.
2.5 Guarantee
Absolute and Unconditional.
Each
Guarantor waives any and all notice of the creation, renewal, extension or
accrual of any of the Borrower Obligations and notice of or proof of reliance
by
the Administrative Agent or any Lender upon the guarantee contained in this
Section 2 or acceptance of the guarantee contained in this Section 2; the
Borrower Obligations, and any of them, shall conclusively be deemed to have
been
created, contracted or incurred, or renewed, extended, amended or waived,
in
reliance upon the guarantee contained in this Section 2; and all dealings
between the Borrower and any of the Guarantors, on the one hand, and the
Administrative Agent and the Lenders, on the other hand, likewise shall be
conclusively presumed to have been had or consummated in reliance upon the
guarantee contained in this Section 2. Each Guarantor waives diligence,
presentment, protest, demand for payment and notice of default or nonpayment
to
or upon the Borrower or any of the Guarantors with respect to the Borrower
Obligations. Each Guarantor understands and agrees that the guarantee contained
in this Section 2 shall be construed as a continuing, absolute and unconditional
7
guarantee
of payment without regard to (a) the validity or enforceability of the
Credit
Agreement or any other Loan Document, any of the Borrower Obligations or
any
other collateral security therefor or guarantee or right of offset with
respect
thereto at any time or from time to time held by the Administrative Agent
or any
Lender, (b) any defense, set-off or counterclaim (other than a defense
of
payment or performance) which may at any time be available to or be asserted
by
the Borrower or any other Person against the Administrative Agent or any
Lender,
or (c) any other circumstance whatsoever (with or without notice to or
knowledge
of the Borrower or such Guarantor) which constitutes, or might be construed
to
constitute, an equitable or legal discharge of the Borrower for the Borrower
Obligations, or of such Guarantor under the guarantee contained in this
Section
2, in bankruptcy or in any other instance. When making any demand hereunder
or
otherwise pursuing its rights and remedies hereunder against any Guarantor,
the
Administrative Agent or any Lender may, but shall be under no obligation
to,
make a similar demand on or otherwise pursue such rights and remedies as
it may
have against the Borrower, any other Guarantor or any other Person or against
any collateral security or guarantee for the Borrower Obligations or any
right
of offset with respect thereto, and any failure by the Administrative Agent
or
any Lender to make any such demand, to pursue such other rights or remedies
or
to collect any payments from the Borrower, any other Guarantor or any other
Person or to realize upon any such collateral security or guarantee or
to
exercise any such right of offset, or any release of the Borrower, any
other
Guarantor or any other Person or any such collateral security, guarantee
or
right of offset, shall not relieve any Guarantor of any obligation or liability
hereunder, and shall not impair or affect the rights and remedies, whether
express, implied or available as a matter of law, of the Administrative
Agent or
any Lender against any Guarantor. For the purposes hereof “demand” shall include
the commencement and continuance of any legal proceedings.
2.6 Non-Facility
Letters of Credit.
Each of
the Borrower and each Guarantor hereby agrees that it shall guarantee (such
guarantee obligations, “Non-Facility
Guarantee Obligations”)
the
Non-Facility Guarantor Obligations of each other Guarantor on the same basis,
mutatis mutandis,
as the
guarantee of the Borrower Obligations contained in this Section 2. Without
limiting the generality of the foregoing, unless the context otherwise requires,
(a) each reference in this Section 2 to “Borrower Obligations” shall be deemed
to include Non-Facility Guarantor Obligations and (b) each reference in this
Section 2 to a “Guarantor” shall be deemed to include the Borrower in its
capacity as a guarantor of the Non-Facility Guarantor Obligations.
2.7 Reinstatement.
The
guarantee contained in this Section 2 shall continue to be effective, or
be
reinstated, as the case may be, if at any time payment, or any part thereof,
of
any of the Borrower Obligations is rescinded or must otherwise be restored
or
returned by the Administrative Agent or any Lender upon the insolvency,
bankruptcy, dissolution, liquidation or reorganization of the Borrower or
any
Guarantor, or upon or as a result of the appointment of a receiver, intervenor
or conservator of, or trustee or similar officer for, the Borrower or any
Guarantor or any substantial part of its property, or otherwise, all as though
such payments had not been made.
2.8 Payments.
Each
Guarantor hereby guarantees that payments hereunder will be paid to the
Administrative Agent without set-off or counterclaim in Dollars at the Funding
Office.
SECTION
3. GRANT
OF
SECURITY INTEREST
Each
Grantor hereby confirms its continuing grant to the Administrative Agent,
for
the ratable benefit of the Secured Parties, of a security interest in, and
its
continuing assignment and transfer to the Administrative Agent of, all of
the
following property now owned or at any time hereafter acquired by such Grantor
or in which such Grantor now has or at any time in the future may acquire
any
right, title or interest (subject to the last paragraph of this Section 3,
collectively, the “Collateral”),
as
collateral security for the prompt and complete payment and performance when
due
(whether at the stated maturity, by
acceleration or otherwise) of such Grantor’s Obligations:
8
(a) all
Pledged Securities;
(b) all
Intercompany Obligations;
(c) all
Additional Collateral;
(d) all
books
and records pertaining to the Collateral; and
(e) to
the
extent not otherwise included, all Proceeds, Supporting Obligations and products
of any and all of the foregoing, all collateral security and guarantees given
by
any Person with respect to any of the foregoing and any Instruments evidencing
any of the foregoing.
Notwithstanding
any of the other provisions set forth in any subsection of this Section 3
or any
other provision of this Agreement, (i) this Agreement shall not constitute
a
grant of a security interest in, and the Collateral shall not include, (x)
any
property to the extent that such grant of a security interest is prohibited
by
any Requirements of Law of a Governmental Authority, requires a consent not
obtained of any Governmental Authority pursuant to such Requirement of Law
or is
prohibited by, or constitutes a breach or default under or results in the
termination of or requires any consent not obtained under, any contract,
license, agreement (including any joint venture, partnership or limited
liability company operating agreement, unless the same relates to a Wholly
Owned
Subsidiary), instrument or other document evidencing or giving rise to such
property except to the extent that such Requirement of Law or the term in
such
contract, license, agreement, instrument or other document providing for
such
prohibition, breach, default or termination or requiring such consent is
ineffective under applicable law or (y) any property that is subject to a
purchase money security interest permitted by the Credit Agreement for so
long
as it is subject to such security interest and (ii) in no event shall more
than
66% of the total outstanding Foreign Subsidiary Voting Equity Interest of
any
Foreign Subsidiary constitute Collateral or be required to be pledged
hereunder.
SECTION
4. CERTIFICATED
INTERESTS
4.1 Pledged
Partnership Interests.
Concurrently with the delivery to the Administrative Agent of any certificate
representing any Pledged Partnership Interests, the relevant Grantor shall,
if
requested by the Administrative Agent, deliver an undated power covering
such
certificate, duly executed in blank by such Grantor.
4.2 Pledged
LLC Interests.
Concurrently with the delivery to the Administrative Agent of any certificate
representing any Pledged LLC Interests, the relevant Grantor shall, if requested
by the Administrative Agent, deliver an undated power covering such certificate,
duly executed in blank by such Grantor.
SECTION
5. REPRESENTATIONS
AND WARRANTIES
To
induce
the Administrative Agent and the Lenders to enter into the Credit Agreement
and
to induce the Lenders to make their respective extensions of credit to the
Borrower thereunder, each Grantor hereby represents and warrants to the
Administrative Agent and each Lender that:
5.1 Title;
No Other Liens.
Except
for the security interest granted to the Administrative Agent for the ratable
benefit of the Secured Parties pursuant to this Agreement and the other Liens
not prohibited to exist on the Collateral by the Credit Agreement, such Grantor
owns each item of the Collateral free and clear of any and all Liens or claims
of others. For the avoidance of doubt, it is understood and agreed that any
Grantor may, as part of its business, grant licenses to third parties to
use
Intellectual Property owned or developed by a Grantor. For purposes of this
Agreement and the other
9
Loan
Documents, such licensing activity shall not constitute a “Lien” on such
Intellectual Property. Each of the Administrative Agent and each Lender
understands that any such licenses may be exclusive to the applicable licensees,
and such exclusivity provisions may limit the ability of the Administrative
Agent to utilize, sell, lease or transfer the related Intellectual Property
or
otherwise realize value from such Intellectual Property pursuant
hereto.
5.2 Perfected
First Priority Liens.
The
security interests granted pursuant to this Agreement (a)
constitute valid perfected security interests in all of the Collateral in
favor
of the Administrative Agent, for the ratable benefit of the Secured Parties,
as
collateral security for such Grantor’s Obligations, enforceable in accordance
with the terms hereof against all creditors of such Grantor and any Persons
purporting to purchase any Collateral from such Grantor and (b)
are
prior to all other Liens on the Collateral in existence on the date hereof
except for Liens not prohibited by the Credit Agreement.
5.3 Jurisdiction
of Organization.
On the
date hereof, such Grantor’s jurisdiction of organization is specified on
Schedule
4.
5.4 Pledged
Securities.
(a)
The
Equity Interests pledged by such Grantor hereunder constitute all the issued
and
outstanding shares of all classes of the Equity Interests of each Issuer
owned
by such Grantor or, in the case of Foreign Subsidiary Voting Stock, if less,
66%
of the outstanding Foreign Subsidiary Voting Stock of each relevant
Issuer.
(b)
Except
with respect to Pledged Stock from time to time constituting an immaterial
portion of the Collateral, all the shares of the Pledged Stock have been
duly
and validly issued and are fully paid and nonassessable.
(c)
None of
the Pledged LLC Interests or Pledged Partnership Interests constitutes a
security under Section 8-103 of the Applicable UCC or the corresponding code
or
statute of any other applicable jurisdiction.
(d)
Except
with respect to Pledged Notes from time to time constituting an immaterial
portion of the Collateral, each of the Pledged Notes constitutes the legal,
valid and binding obligation of the obligor with respect thereto, enforceable
in
accordance with its terms, subject to the effects of bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium and other similar laws
relating to or affecting creditors’ rights generally, general equitable
principles (whether considered in a proceeding in equity or at law) and the
implied covenant of good faith and fair dealing.
(e)
Such
Grantor is the record and beneficial owner of, and has good and marketable
title
to, the Pledged Securities pledged by it hereunder, free of any and all Liens
or
options in favor of, or claims of, any other Person, except the security
interest created by this Agreement and any Liens not prohibited by Section
7.3
of the Credit Agreement.
SECTION
6. COVENANTS
Each
Grantor covenants and agrees that, from and after the date of this Agreement
until the Obligations shall have been paid in full, no Letter of Credit shall
be
outstanding and the Commitments shall have terminated:
6.1 Delivery
of Instruments, Certificated Securities and Chattel Paper.
If any
amount payable under or in connection with any of the Collateral shall be
or
become evidenced by any Instrument, Certificated Security or Chattel Paper
with
a face value of $5,000,000 or more, such Instrument, Certificated Security
or
Chattel Paper shall be promptly delivered to the Administrative
10
Agent,
duly indorsed in a manner reasonably satisfactory to the Administrative
Agent,
to be held as Collateral pursuant to this Agreement.
6.2 Insurance
All
insurance maintained by any Grantor with respect to the Collateral shall
(a)
provide that no cancellation, material reduction in amount or material change
in
coverage thereof shall be effective until at least 30 days after receipt
by the
Administrative Agent of written notice thereof and (b) name the Administrative
Agent as insured party or loss payee, as applicable and customary.
6.3 Maintenance
of Perfected Security Interest; Further Documentation.
(a)
Such
Grantor shall, at the request of the Administrative Agent, take all reasonable
actions to maintain the security interest created by this Agreement as a
perfected security interest having at least the priority described in Section
5.2 and shall defend such security interest against the claims and demands
of
all Persons whomsoever.
(b)
Such
Grantor will furnish to the Administrative Agent and the Lenders from time
to
time statements and schedules further identifying and describing the assets
and
property of such Grantor constituting, or intended to constitute, Collateral
and
such other reports in connection therewith as the Administrative Agent may
reasonably request, all in reasonable detail.
(c)
At any
time and from time to time, upon the written request of the Administrative
Agent, and at the sole expense of such Grantor, such Grantor will promptly
and
duly execute and deliver, and have recorded, such further instruments and
documents and take such further actions as the Administrative Agent may
reasonably request for the purpose of obtaining or preserving the full benefits
of this Agreement and of the rights and powers herein granted, including,
without limitation, (i) filing any financing or continuation statements under
the Uniform Commercial Code (or other similar laws) in effect in any
jurisdiction with respect to the security interests created hereby and (ii)
in
the case of Pledged Securities, Investment Property, Letter of Credit Rights
and
any other relevant Collateral, taking any actions necessary to enable the
Administrative Agent to obtain “control” (within the meaning of the applicable
Uniform Commercial Code) with respect thereto; provided,
that no
account control agreements will be required unless an Event of Default is
in
existence.
6.4 Changes
in Locations, Name, etc.
Such
Grantor will not, except upon prior written notice to the Administrative
Agent:
(a)
change its jurisdiction of organization; or
(b) change
its name to such an extent that any financing statement filed by the
Administrative Agent in connection with this Agreement would become seriously
misleading;
unless,
within 30 days of the taking of any such actions, such Grantor delivers to
the
Administrative Agent notice of such change and all documents reasonably
requested by the Administrative Agent to maintain the validity, perfection
and
priority of the security interests provided for herein.
6.5 Pledged
Securities.
(a)
If such
Grantor shall become entitled to receive or shall receive any certificate
(including, without limitation, any certificate representing a dividend or
a
distribution in connection with any reclassification, increase or reduction
of
capital or any certificate issued in connection with any reorganization),
option
or rights in respect of the Equity Interests of any Issuer, whether in addition
to, in substitution of, as a conversion of, or in exchange for, any shares
of
the Pledged Stock, or otherwise in respect thereof, such Grantor shall accept
the same as the agent of the Administrative Agent and the Lenders, hold the
same
in trust for the Administrative Agent and the Lenders and, with respect to
Pledged Stock constituting securities under and as defined in Section 8-103
11
of
the
Applicable UCC, deliver the same forthwith to the Administrative Agent
in the
exact form received, duly indorsed by such Grantor to the Administrative
Agent,
if required, together with an undated power covering such certificate duly
executed in blank by such Grantor, to be held by the Administrative Agent,
subject to the terms hereof, as additional collateral security for the
Obligations. During the continuance of an Event of Default, after written
notice
from the Administrative Agent, any sums paid upon or in respect of the
Pledged
Securities upon the liquidation or dissolution of any Issuer shall be paid
over
to the Administrative Agent to be held by it hereunder as additional collateral
security for the Obligations, and in case any distribution of capital shall
be
made on or in respect of the Pledged Securities or any property shall be
distributed upon or with respect to the Pledged Securities pursuant to
the
recapitalization or reclassification of the capital of any Issuer or pursuant
to
the reorganization thereof, the property so distributed shall be delivered
to
the Administrative Agent to be held by it hereunder as additional collateral
security for the Obligations. If any sums of money or property so paid
or
distributed in respect of the Pledged Securities shall be received by such
Grantor during the continuance of an Event of Default, after notice from
the
Administrative Agent, such Grantor shall, until such money or property
is paid
or delivered to the Administrative Agent, hold such money or property in
trust
for the Lenders, segregated from other funds of such Grantor, as additional
collateral security for the Obligations.
(b)
Without
the prior written consent of the Administrative Agent, such Grantor will
not (i)
sell, assign, transfer, exchange, or otherwise dispose of, or grant any option
with respect to, the Pledged Securities or Proceeds thereof (except pursuant
to
a transaction not prohibited by the Credit Agreement), (ii) create, incur
or
permit to exist any Lien, or any claim of any Person with respect to, any
of the
Pledged Securities or Proceeds thereof, or any interest therein, except for
the
security interests created by this Agreement or Liens not prohibited under
Section 7.3 of the Credit Agreement, (iii) enter into any agreement or
undertaking restricting the right or ability of such Grantor to sell, assign
or
transfer any of the Pledged Stock hereunder or Proceeds thereof other than
any
documents governing Indebtedness permitted under Section 7.2 of the Credit
Agreement so long as such restrictions are no more onerous than those contained
in the Loan Documents, or (iv) enter into any agreement or undertaking
restricting, directly or indirectly, the right or ability of the Administrative
Agent to sell, assign or transfer any of the Pledged Securities hereunder
or
Proceeds thereof.
(c)
Without
the prior written consent of the Administrative Agent, such Grantor will
not,
and will not permit any Issuer that is a limited liability company or
partnership, to amend such Issuer’s certificate of formation, certificate of
limited partnership, statement of partnership existence, limited liability
company agreement, partnership agreement or operating agreement to provide
that
any Equity Interests in any Issuer constitute a security under Section 8-103
of
the Applicable UCC or the corresponding code or statute of any other applicable
jurisdiction.
(d) In
the
case of each Grantor which is an Issuer, such Issuer agrees that (i) it will
be
bound by the terms of this Agreement relating to the Pledged Securities issued
by it and will comply with such terms insofar as such terms are applicable
to
it, (ii) it will notify the Administrative Agent promptly in writing of the
occurrence of any of the events described in Section 6.5(a) with respect
to the
Pledged Securities issued by it and (iii) the terms of Sections 7.1(c) and
7.5
shall apply to it, mutatis mutandis,
with
respect to all actions that may be required of it pursuant to Section 7.1(c)
or
7.5 with respect to the Pledged Securities issued by it.
SECTION
7. REMEDIAL
PROVISIONS
12
exercise
all voting and organizational rights with respect to the Pledged Securities;
provided,
however,
that no
vote shall be cast or right exercised or other action taken which, in the
Administrative Agent’s reasonable judgment, would impair the Collateral or which
would be inconsistent with or result in any violation of any provision
of the
Credit Agreement, this Agreement or any other Loan Document.
(b)
If an
Event of Default shall occur and be continuing and the Administrative Agent
shall give written notice of its intent to exercise such rights to the relevant
Grantor or Grantors, (i) the Administrative Agent shall have the right to
receive any and all cash dividends, payments or other Proceeds paid in respect
of the Pledged Securities and make application thereof to the Obligations
in
such order as the Administrative Agent may determine, and (ii) any or all
of the
Pledged Securities shall be registered in the name of the Administrative
Agent
or its nominee, and the Administrative Agent or its nominee may thereafter
exercise (x) all voting, organizational and other rights pertaining to such
Pledged Securities at any meeting of shareholders of the relevant Issuer
or
Issuers or otherwise and (y) any and all rights of conversion, exchange and
subscription and any other rights, privileges or options pertaining to such
Pledged Securities as if it were the absolute owner thereof (including, without
limitation, the right to exchange at its discretion any and all of the Pledged
Securities upon the merger, consolidation, reorganization, recapitalization
or
other fundamental change in the organizational structure of any Issuer, or
upon
the exercise by any Grantor or the Administrative Agent of any right, privilege
or option pertaining to such Pledged Securities, and in connection therewith,
the right to deposit and deliver any and all of the Pledged Securities with
any
committee, depositary, transfer agent, registrar or other designated agency
upon
such terms and conditions as the Administrative Agent may determine), all
without liability except to account for property actually received by it,
but
the Administrative Agent shall have no duty to any Grantor to exercise any
such
right, privilege or option and shall not be responsible for any failure to
do so
or delay in so doing.
(c)
Each
Grantor hereby authorizes and instructs each Issuer of any Pledged Securities
pledged by such Grantor hereunder to (i) comply with any instruction received
by
it from the Administrative Agent in writing that (x) states that an Event
of
Default has occurred and is continuing and (y) is otherwise in accordance
with
the terms of this Agreement, without any other or further instructions from
such
Grantor, and each Grantor agrees that each Issuer shall be fully protected
in so
complying, and (ii) unless otherwise expressly permitted hereby, pay any
dividends or other payments with respect to the Pledged Securities directly
to
the Administrative Agent.
13
Obligations
shall be paid over from time to time by the Administrative Agent to the
Borrower
or to whomsoever may be lawfully entitled to receive the same. Any balance
of
such Proceeds remaining after the Obligations shall have been paid in full,
no
Letters of Credit shall be outstanding and the Commitments shall have terminated
shall be paid over to the Borrower or to whomsoever may be lawfully entitled
to
receive the same.
7.5 Registration
Rights.
(a)
If the
Administrative Agent shall determine to exercise its right to sell any or
all of
the Pledged Stock pursuant to Section 7.4, and if in the opinion of the
Administrative Agent it is necessary or advisable to have the Pledged Stock,
or
that portion thereof to be sold, registered under the provisions of the
Securities Act, the relevant Grantor will cause the Issuer thereof to (i)
execute and deliver, and cause the directors and officers of such Issuer
to
execute and deliver, all such instruments and documents, and do or cause
to be
done all such other acts as may be, in the opinion of the Administrative
Agent,
necessary or advisable to register the Pledged Stock, or that portion thereof
to
be sold, under the provisions of the Securities Act, (ii) use its reasonable
best efforts to cause the registration statement relating thereto to become
effective and to remain effective for a period of one year from the date
of the
first public offering of the Pledged Stock, or that portion thereof to be
sold,
and (iii) make all amendments thereto and/or to the related prospectus which,
in
the opinion of the
14
Administrative
Agent, are necessary or advisable, all in conformity with the requirements
of
the Securities Act and the rules and regulations of the Securities and
Exchange
Commission applicable thereto. Each Grantor agrees to cause such Issuer
to
comply with the provisions of the securities or “Blue Sky” laws of any and all
jurisdictions which the Administrative Agent shall designate and to make
available to its security holders, as soon as practicable, an earnings
statement
(which need not be audited) which will satisfy the provisions of Section
11(a)
of the Securities Act.
(b)
Each
Grantor recognizes that the Administrative Agent may be unable to effect
a
public sale of any or all the Pledged Stock, by reason of certain prohibitions
contained in the Securities Act and applicable state securities laws or
otherwise, and may by reason of such prohibitions be compelled to resort
to one
or more private sales thereof to a restricted group of purchasers which will
be
obliged to agree, among other things, to acquire such securities for their
own
account for investment and not with a view to the distribution or resale
thereof. Each Grantor acknowledges and agrees that any such private sale
may
result in prices and other terms less favorable than if such sale were a
public
sale and, notwithstanding such circumstances, agrees that any such private
sale
shall be deemed to have been made in a commercially reasonable manner. The
Administrative Agent shall be under no obligation to delay a sale of any
of the
Pledged Stock for the period of time necessary to permit the Issuer thereof
to
register such securities for public sale under the Securities Act, or under
applicable state securities laws, even if such Issuer would agree to do
so.
(c)
Each
Grantor agrees to use its reasonable best efforts to do or cause to be done
all
such other acts as may be necessary to make such sale or sales of all or
any
portion of the Pledged Stock pursuant to this Section 7.5 valid and binding
and
in compliance with any and all other applicable Requirements of Law. Each
Grantor further agrees that a breach of any of the covenants contained in
this
Section 7.5 will cause irreparable injury to the Administrative Agent and
the
Lenders, that the Administrative Agent and the Lenders have no adequate remedy
at law in respect of such breach and, as a consequence, that each and every
covenant contained in this Section 7.5 shall be specifically enforceable
against
such Grantor, and such Grantor hereby waives and agrees not to assert any
defenses against an action for specific performance of such covenants except
for
a defense that no Event of Default has occurred under the Credit
Agreement.
7.6 Deficiency.
Each
Grantor shall remain liable for any deficiency if the proceeds of any sale
or
other disposition of the Collateral are insufficient to pay its Obligations
and
the fees and disbursements of any attorneys employed by the Administrative
Agent
or any Lender to collect such deficiency.
7.7 Certain
Matters Relating to Pledged Receivables.
The
Administrative Agent hereby authorizes each Grantor pledging Receivables
hereunder to collect such Grantor’s Pledged Receivables, provided
that the
Administrative Agent may curtail or terminate said authority at any time
after
the occurrence and during the continuance of an Event of Default. At any
time
after the occurrence and during the continuance of an Event of Default, after
written notice to such Grantor from the Administrative Agent, any payments
of
Pledged Receivables, when collected by any Grantor, (i) shall be forthwith
(and,
in any event, within two Business Days) deposited by such Grantor in the
exact
form received, duly indorsed by such Grantor to the Administrative Agent
if
required, in a Collateral Account maintained under the sole dominion and
control
of the Administrative Agent, subject to withdrawal by the Administrative
Agent
for the account of the Lenders only as provided in Section 7.3, and (ii)
until
so turned over, shall be held by such Grantor in trust for the Administrative
Agent and the Lenders, segregated from other funds of such Grantor. Each
such
deposit of Proceeds of Pledged Receivables shall be accompanied by a report
identifying in reasonable detail the nature and source of the payments included
in the deposit.
15
7.8 Communications
with Obligors; Grantors Remain Liable.
(a)
The
Administrative Agent in its own name or in the name of others may at any
time
after the occurrence and during the continuance of an Event of Default
communicate with obligors under the Pledged Receivables to verify with them
to
the Administrative Agent’s satisfaction the existence, amount and terms of any
Receivables.
(b) Upon
the
written request of the Administrative Agent at any time after the occurrence
and
during the continuance of an Event of Default, each Grantor shall notify
obligors on the Pledged Receivables that the Pledged Receivables have been
assigned to the Administrative Agent for the ratable benefit of the Secured
Parties and that payments in respect thereof shall be made directly to the
Administrative Agent.
(c) Anything
herein to the contrary notwithstanding, each Grantor pledging Receivables
shall
remain liable under each of the Pledged Receivables to observe and perform
all
the conditions and obligations to be observed and performed by it thereunder,
all in accordance with the terms of any agreement giving rise thereto. Neither
the Administrative Agent nor any Lender shall have any obligation or liability
under any Receivable (or any agreement giving rise thereto) by reason of
or
arising out of this Agreement or the receipt by the Administrative Agent
or any
Lender of any payment relating thereto, nor shall the Administrative Agent
or
any Lender be obligated in any manner to perform any of the obligations of
any
Grantor under or pursuant to any Receivable (or any agreement giving rise
thereto), to make any payment, to make any inquiry as to the nature or the
sufficiency of any payment received by it or as to the sufficiency of any
performance by any party thereunder, to present or file any claim, to take
any
action to enforce any performance or to collect the payment of any amounts
which
may have been assigned to it or to which it may be entitled at any time or
times.
7.9 Silo
Credit Agreements, etc.
After
the occurrence and during the continuance of an Event of Default, the
Administrative Agent may exercise any and all rights and remedies of the
Borrower pursuant to any Silo Credit Agreement or Silo Guarantee and Collateral
Agreement upon written notice to the relevant borrower under the relevant
Silo
Credit Agreement.
SECTION
8. THE
ADMINISTRATIVE AGENT
8.1 Administrative
Agent’s Appointment as Attorney-in-Fact, etc.
(a)
Each
Grantor hereby irrevocably constitutes and appoints the Administrative Agent
and
any officer or agent thereof, with full power of substitution, as its true
and
lawful attorney-in-fact with full irrevocable power and authority in the
place
and stead of such Grantor and in the name of such Grantor or in its own name,
for the purpose of carrying out the terms of this Agreement, to take any
and all
appropriate action and to execute any and all documents and instruments which
may be necessary or desirable to accomplish the purposes of this Agreement,
and,
without limiting the generality of the foregoing, each Grantor hereby gives
the
Administrative Agent the power and right, on behalf of such Grantor, without
notice to or assent by such Grantor, to do any or all of the
following:
(i)
in
the name of such Grantor or its own name, or otherwise, take possession of
and
indorse and collect any checks, drafts, notes, acceptances or other instruments
for the payment of moneys due under any Pledged Receivable or with respect
to
any other Collateral and file any claim or take any other action or proceeding
in any court of law or equity or otherwise deemed appropriate by the
Administrative Agent for the purpose of collecting any and all such moneys
due
under any Pledged Receivable or with respect to any other Collateral whenever
payable;
(ii)
in
the case of any Intellectual Property, execute and deliver, and have recorded,
any and all agreements, instruments, documents and papers as the Administrative
Agent may request
16
to
evidence the Administrative Agent’s and the Lenders’ security interest in such
Intellectual Property and the goodwill and general intangibles of such
Grantor
relating thereto or represented thereby;
(iii)
pay
or discharge taxes and Liens levied or placed on or threatened against the
Collateral, effect any repairs or any insurance called for by the terms of
this
Agreement and pay all or any part of the premiums therefor and the costs
thereof;
(iv)
execute, in connection with any sale provided for in Section 7.4 or 7.5,
any
indorsements, assignments or other instruments of conveyance or transfer
with
respect to the Collateral;
(v)
(1) direct
any party liable for any payment under any of the Collateral to make payment
of
any and all moneys due or to become due thereunder directly to the
Administrative Agent or as the Administrative Agent shall direct; (2)
ask or demand for, collect, and receive payment of and receipt for, any and
all
moneys, claims and other amounts due or to become due at any time in respect
of
or arising out of any Collateral; (3)
sign and indorse any invoices, freight or express bills, bills of lading,
storage or warehouse receipts, drafts against debtors, assignments,
verifications, notices and other documents in connection with any of the
Collateral; (4)
commence
and prosecute any suits, actions or proceedings at law or in equity in any
court
of competent jurisdiction to collect the Collateral or any portion thereof
and
to enforce any other right in respect of any Collateral; (5) defend
any suit, action or proceeding brought against such Grantor with respect
to any
Collateral; (6)
settle,
compromise or adjust any such suit, action or proceeding and, in connection
therewith, give such discharges or releases as the Administrative Agent may
deem
appropriate; (7)
assign
any Patent or Trademark (along with the goodwill of the business to which
any
such Patent or Trademark pertains), throughout the world for such term or
terms,
on such conditions, and in such manner, as the Administrative Agent shall
in its
sole discretion determine; and (8)
generally, sell, transfer, pledge and make any agreement with respect to
or
otherwise deal with any of the Collateral as fully and completely as though
the
Administrative Agent were the absolute owner thereof for all purposes, and
do,
at the Administrative Agent’s option and such Grantor’s expense, at any time, or
from time to time, all acts and things which the Administrative Agent deems
necessary to protect, preserve or realize upon the Collateral and the
Administrative Agent’s and the Lenders’ security interests therein and to effect
the intent of this Agreement, all as fully and effectively as such Grantor
might
do; and
(vi)
exercise any of the Administrative Agent’s rights pursuant to Section
7.9.
Anything
in this Section 8.1(a) to the contrary notwithstanding, the Administrative
Agent
agrees that it will not exercise any rights under the power of attorney provided
for in this Section 8.1(a) unless an Event of Default shall have occurred
and be
continuing and the Administrative Agent shall have given written notice of
its
intent to exercise its rights under this Section 8.1(a).
(b)
If any
Grantor fails to perform or comply with any of its agreements contained herein,
the Administrative Agent, at its option, after prior notice to such Grantor,
but
without any obligation so to do, may perform or comply, or otherwise cause
performance or compliance, with such agreement.
(c)
The
expenses of the Administrative Agent incurred in connection with actions
undertaken as provided in this Section 8.1, together with interest thereon
at a
rate per annum equal to the highest rate per annum at which interest would
then
be payable on any category of past due ABR Loans under the Credit Agreement,
from the date of payment by the Administrative Agent to the date
17
reimbursed
by the relevant Grantor, shall be payable by such Grantor to the Administrative
Agent on demand.
(d)
Each
Grantor hereby ratifies all that said attorneys shall lawfully do or cause
to be
done by virtue hereof. All powers, authorizations and agencies contained
in this
Agreement are coupled with an interest and are irrevocable until this Agreement
is terminated and the security interests created hereby are
released.
8.2 Duty
of Administrative Agent.
The
Administrative Agent’s sole duty with respect to the custody, safekeeping and
physical preservation of the Collateral in its possession, under Section
9-207
of the Applicable UCC or otherwise, shall be to deal with it in the same
manner
as the Administrative Agent deals with similar property for its own account.
Neither the Administrative Agent, any Lender nor any of their respective
officers, directors, employees or agents shall be liable for failure to demand,
collect or realize upon any of the Collateral or for any delay in doing so
or
shall be under any obligation to sell or otherwise dispose of any Collateral
upon the request of any Grantor or any other Person or to take any other
action
whatsoever with regard to the Collateral or any part thereof. The powers
conferred on the Administrative Agent and the Lenders hereunder are solely
to
protect the Administrative Agent’s and the Lenders’ interests in the Collateral
and shall not impose any duty upon the Administrative Agent or any Lender
to
exercise any such powers. The Administrative Agent and the Lenders shall
be
accountable only for amounts that they actually receive as a result of the
exercise of such powers, and neither they nor any of their officers, directors,
employees or agents shall be responsible to any Grantor for any act or failure
to act hereunder, except for their own gross negligence or willful
misconduct.
8.3 Financing
Statements.
Pursuant to any applicable law, each Grantor authorizes the Administrative
Agent
to file or record financing statements and other filing or recording documents
or instruments with respect to the Collateral without the signature of such
Grantor in such form and in such offices as the Administrative Agent determines
appropriate to perfect the security interests of the Administrative Agent
under
this Agreement. A photographic or other reproduction of this Agreement shall
be
sufficient as a financing statement or other filing or recording document
or
instrument for filing or recording in any jurisdiction. The Borrower and
each
Guarantor authorizes the Administrative Agent to use the collateral description
“all personal property” in any such financing statements. Notwithstanding
anything to the contrary in this Agreement or any other Loan Document, unless
(a) an Event of Default shall have occurred and be continuing or (b) a
comparable financing statement has been filed by or on behalf of holders
of the
CCO Senior Notes, the expense of preparing and filing any Uniform Commercial
Code financing statement that is not to be filed with the Secretary of State
of
the relevant jurisdiction and the expense of terminating or releasing any
such
financing statement pursuant to any release contemplated by Section 10.14
of the
Credit Agreement or Section 9.15 hereof shall in each case be borne by the
Lenders rather than the Loan Parties. Each Grantor or the Borrower, on behalf
of
each affected Grantor agrees to promptly notify the Administrative Agent
if it
becomes aware that a comparable financing statement as described above has
been
filed or if it has been requested to provide information to facilitate such
a
filing.
8.4 Authority
of Administrative Agent.
Each
Grantor acknowledges that the rights and responsibilities of the Administrative
Agent under this Agreement with respect to any action taken by the
Administrative Agent or the exercise or non-exercise by the Administrative
Agent
of any option, voting right, request, judgment or other right or remedy provided
for herein or resulting or arising out of this Agreement shall, as between
the
Administrative Agent and the Lenders, be governed by the Credit Agreement
and by
such other agreements with respect thereto as may exist from time to time
among
them, but, as between the Administrative Agent and each Grantor, the
Administrative Agent shall be conclusively presumed to be acting as agent
for
the Lenders with full and valid authority so to act or
18
refrain
from acting, and no Grantor shall be under any obligation, or entitlement,
to
make any inquiry respecting such authority.
SECTION
9. MISCELLANEOUS
9.1 Amendments
in Writing.
None of
the terms or provisions of this Agreement may be waived, amended, supplemented
or otherwise modified except in accordance with Section 10.1 of the Credit
Agreement.
9.2 Notices.
All
notices, requests and demands to or upon the Administrative Agent or any
Grantor
hereunder shall be effected in the manner provided for in Section 10.2 of
the
Credit Agreement; provided
that any
such notice, request or demand to or upon any Subsidiary Guarantor shall
be
addressed to such Guarantor at its notice address set forth on Schedule
1.
9.3 No
Waiver by Course of Conduct; Cumulative Remedies.
Neither
the Administrative Agent nor any Lender shall by any act (except by a written
instrument pursuant to Section 9.1), delay, indulgence, omission or otherwise
be
deemed to have waived any right or remedy hereunder or to have acquiesced
in any
Default or Event of Default. No failure to exercise, nor any delay in
exercising, on the part of the Administrative Agent or any Lender, any right,
power or privilege hereunder shall operate as a waiver thereof. No single
or
partial exercise of any right, power or privilege hereunder shall preclude
any
other or further exercise thereof or the exercise of any other right, power
or
privilege. A waiver by the Administrative Agent or any Lender of any right
or
remedy hereunder on any one occasion shall not be construed as a bar to any
right or remedy which the Administrative Agent or such Lender would otherwise
have on any future occasion. The rights and remedies herein provided are
cumulative, may be exercised singly or concurrently and are not exclusive
of any
other rights or remedies provided by law.
9.4 Enforcement
Expenses; Indemnification.
(a)
Each
Guarantor agrees to pay or reimburse each Lender and the Administrative Agent
for all its costs and expenses incurred in collecting against such Guarantor
under the guarantee contained in Section 2 or otherwise enforcing or preserving
any rights under this Agreement and the other Loan Documents to which such
Guarantor is a party, including, without limitation, the fees and disbursements
of one firm of counsel (together with any special and local counsel) to the
Administrative Agent to the extent the Borrower would be required to do so
pursuant to Section 10.5 of the Credit Agreement.
(b)
Each
Grantor agrees to pay, and to save the Administrative Agent and the Lenders
harmless from, any and all liabilities with respect to, or resulting from
any
delay in paying, any and all stamp, excise, sales or other taxes which may
be
payable or determined to be payable with respect to any of the Collateral
to the
extent the Borrower would be required to do so pursuant to Section 10.5 of
the
Credit Agreement.
(c)
Each
Guarantor agrees to pay, and to save the Administrative Agent and the Lenders
harmless from, any and all 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 to the extent the Borrower
would be required to do so pursuant to Section 10.5 of the Credit
Agreement.
(d)
The
agreements in this Section 9.4 shall survive repayment of the Obligations
and
all other amounts payable under the Credit Agreement and the other Loan
Documents.
9.5 Successors
and Assigns.
This
Agreement shall be binding upon the successors and assigns of each Grantor
and
Guarantor and shall inure to the benefit of the Administrative Agent
and
19
the
Lenders and their successors and assigns; provided
that no
Grantor or Guarantor may assign, transfer or delegate any of its rights
or
obligations under this Agreement without the prior written consent of the
Administrative Agent.
9.6 Set-Off.
Each
Grantor hereby irrevocably authorizes the Administrative Agent and each Lender
at any time and from time to time while an Event of Default pursuant to Section
8(a) or 8(g) (in the latter case with respect to the Borrower) of the Credit
Agreement shall have occurred and be continuing, without notice to such Grantor
or any other Grantor, any such notice being expressly waived by each Grantor,
to
set-off and appropriate and apply 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 the Administrative Agent or such Lender to or for the credit or
the
account of such Grantor, or any part thereof in such amounts as the
Administrative Agent or such Lender may elect, against and on account of
the
obligations and liabilities of the Borrower or such Grantor to the
Administrative Agent or such Lender hereunder and claims of every nature
and
description of the Administrative Agent or such Lender against any Grantor,
in
any currency, whether arising hereunder, under the Credit Agreement, any
other
Loan Document or otherwise, as the Administrative Agent or such Lender may
elect, whether or not the Administrative Agent or any Lender has made any
demand
for payment and although such obligations, liabilities and claims may be
contingent or unmatured. The Administrative Agent and each Lender shall notify
such Grantor promptly of any such set-off and the application made by the
Administrative Agent or such Lender of the proceeds thereof, provided
that the
failure to give such notice shall not affect the validity of such set-off
and
application. The rights of the Administrative Agent and each Lender under
this
Section 9.6 are in addition to other rights and remedies (including, without
limitation, other rights of set-off) which the Administrative Agent or such
Lender may have.
9.7 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.
9.8 Severability.
Any
provision of this Agreement which 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.
9.9 Governmental
Approvals.
(a)
Notwithstanding anything herein to the contrary, this Agreement, the other
Loan
Documents and the transactions contemplated hereby and thereby, prior to
the
exercise of any rights and remedies provided in this Agreement or the other
Loan
Documents, including, without limitation, voting the Pledged Securities or
a
foreclosure of the security interest granted under this Agreement, except
to the
extent not prohibited by applicable Requirements of Law, (i) do not and will
not
constitute, create, or have the effect of constituting or creating, directly
or
indirectly, actual or practical ownership of the Borrower or any Subsidiary
of
the Borrower by the Administrative Agent or the Lenders, or control, affirmative
or negative, direct or indirect, by the Administrative Agent or the Lenders
over
the management or any other aspect of the operation of the Borrower or any
Subsidiary of the Borrower, which ownership and control remains exclusively
and
at all times in the Borrower and such Subsidiary, and (ii) do not and will
not
constitute the transfer, assignment, or disposition in any manner, voluntarily
or involuntarily, directly or indirectly, of any License at any time issued
to
the Borrower or any Subsidiary of the Borrower, or the transfer of control
of
the Borrower or
20
any
Subsidiary of the Borrower, including, without limitation, within the meaning
of
Section 310(d) of the Communications Act of 1934, as amended.
(b)
Notwithstanding any other provision of this Agreement, any foreclosure on,
sale,
transfer or other disposition of, or the exercise of any right to vote or
consent with respect to, any of the Pledged Securities, as provided herein,
or
any other action taken or proposed to be taken by the Administrative Agent
hereunder which would affect the operational, voting or other control of
the
Borrower or any Subsidiary of the Borrower, shall be in accordance with
applicable Requirements of Law.
(c)
Notwithstanding anything to the contrary contained in this Agreement or in
any
other Loan Document, the Administrative Agent shall not, without first obtaining
the approval of the FCC or any other applicable Governmental Authority, take
any
action pursuant to this Agreement which would constitute or result in, or
be
deemed to constitute or result in, any assignment of a License, including,
without limitation, any CATV Franchise of the Borrower or any Subsidiary
of the
Borrower, or any change of control of the Borrower or any Subsidiary of the
Borrower, if such assignment or change in control would require, under then
existing Requirements of Law (including the written rules and regulations
promulgated by the FCC), the prior approval of the FCC or such other
Governmental Authority.
(d)
If
counsel to the Administrative Agent reasonably determines that the consent
of
the FCC or any other Governmental Authority is required in connection with
any
of the actions which may be taken by the Administrative Agent in the exercise
of
its rights under this Agreement or any of the other Loan Documents during
the
continuance of an Event of Default, then the Borrower, at its sole cost and
expense, shall use its reasonable best efforts to secure such consent and
to
cooperate fully with the Administrative Agent in any action commenced by
the
Administrative Agent to secure such consent. Upon the exercise by the
Administrative Agent of any power, right, privilege or remedy pursuant to
this
Agreement during the continuance of an Event of Default which requires any
consent, approval, recording, qualification or authorization of the FCC or
any
other Governmental Authority or instrumentality, the Borrower will promptly
prepare, execute, deliver and file, or will promptly cause the preparation,
execution, delivery and filing of, all applications, certificates, instruments
and other documents and papers that the Administrative Agent reasonably deems
necessary or advisable to obtain such governmental consent, approval, recording,
qualification or authorization including, without limitation, the assignor’s or
transferor’s portion of any application or applications for consent to the
assignment of license necessary or appropriate under the rules and regulations
of the FCC or any other Governmental Authority for approval of any sale,
transfer or assignment to the Administrative Agent or any other Person of
the
Pledged Securities. Subject to the provisions of applicable law, if the Borrower
fails or refuses to execute, or fails or refuses to cause another Person
to
execute, such documents, the Administrative Agent, as attorney-in-fact for
the
Borrower appointed pursuant to Section 8.1, or the clerk of any court of
competent jurisdiction, may execute and file the same on behalf of the Borrower.
In addition to the foregoing, during the continuance of an Event of Default,
the
Borrower agrees to take, or cause to be taken, any action which the
Administrative Agent may reasonably request in order to obtain and enjoy
the
full rights and benefits granted to the Lenders or the Administrative Agent
by
this Agreement and any other instruments or agreements executed pursuant
hereto,
including, without limitation, at the Borrower’s cost and expense, the exercise
of the Borrower’s best efforts to cooperate in obtaining FCC or other
governmental approval of any action or transaction contemplated by this
Agreement or any other instrument or agreement executed pursuant hereto which
is
then required by law.
(e)
The
Borrower recognizes that the authorizations, permits and licenses held by
the
Borrower or any of its Subsidiaries are unique assets which may have to be
assigned or transferred in order for the Lenders to realize the value of
the
security interests granted to the Administrative Agent. The Borrower further
recognizes that a violation of the provisions of Section 9.9(d) would result
in
21
irreparable
harm to the Administrative Agent and the Lenders for which monetary damages
are
not readily ascertainable. Therefore, in addition to any other remedy which
may
be available to the Administrative Agent and Lenders at law or in equity,
the
Administrative Agent and the Lenders shall have the remedy of specific
performance of the provisions of Section 9.9(d). To enforce the provisions
of
Section 9.9(d), the Administrative Agent is authorized to request the consent
or
approval of the FCC or other Governmental Authority to a voluntary or an
involuntary assignment or transfer of control of any authorization, permit
or
license. In connection with the exercise of its remedies under this Agreement
or
under any of the other Loan Documents, the Administrative Agent may obtain
the
appointment of a trustee or receiver to assume, upon receipt of all necessary
judicial, FCC or other Governmental Authority consents or approvals, the
control
of any Person, subject to compliance with applicable Requirements of Law.
Such
trustee or receiver shall have all rights and powers provided to it by
law or by
court order or provided to the Administrative Agent under this
Agreement.
9.10 Section
Headings.
The
Section headings used in this Agreement are for convenience of reference
only
and are not to affect the construction hereof or be taken into consideration
in
the interpretation hereof.
9.11 Integration.
This
Agreement and the other Loan Documents represent the agreement of each Grantor,
the Administrative Agent and the Lenders with respect to the subject matter
hereof and thereof, and there are no promises, undertakings, representations
or
warranties by the Administrative Agent or any Lender relative to subject
matter
hereof and thereof not expressly set forth or referred to herein or in the
other
Loan Documents.
9.12 GOVERNING
LAW.
SECTION 2 OF THIS AGREEMENT AND SECTION 9 OF THIS AGREEMENT (INSOFAR AS SAID
SECTION 9 RELATES TO MATTERS COVERED BY SECTION 2), TOGETHER WITH THE RELEVANT
DEFINED TERMS USED IN SAID SECTIONS, SHALL BE GOVERNED BY, AND CONSTRUED
AND
INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK. ALL OTHER
PROVISIONS OF THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED
IN ACCORDANCE WITH, THE LAW OF THE STATE OF DELAWARE. IF FOR ANY REASON THE
CHOICE OF GOVERNING LAW OF THE STATE OF DELAWARE AS PROVIDED IN THE PRECEDING
SENTENCE IS UNENFORCEABLE OR INVALID, ALL PROVISIONS OF THIS AGREEMENT SHALL
BE
GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF
THE
STATE OF NEW YORK AND “APPLICABLE UCC” SHALL BE DEEMED TO REFER TO THE UNIFORM
COMMERCIAL CODE AS FROM TIME TO TIME IN EFFECT IN THE STATE OF NEW
YORK.
9.13 Submission
To Jurisdiction; Waivers.
Each
Grantor hereby irrevocably and unconditionally:
(a) 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
and
Delaware, the courts of the United States of America for the Southern
District of New York and the District of Delaware, and appellate courts
from any thereof;
(b) 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;
22
(c) 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 such Grantor at its address referred
to in Section 9.2 or at such other address of which the Administrative Agent
shall have been notified pursuant thereto;
(d) 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
(e) 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.
9.14 Acknowledgments.
Each
Grantor hereby acknowledges that:
(a)
it has
been advised by counsel in the negotiation, execution and delivery of this
Agreement and the other Loan Documents to which it is a party;
(b)
neither
the Administrative Agent nor any Lender has any fiduciary relationship with
or
duty to any Grantor arising out of or in connection with this Agreement or
any
of the other Loan Documents, and the relationship between the Grantors, on
the
one hand, and the Administrative Agent and Lenders, on the other hand, in
connection herewith or therewith is solely that of debtor and creditor;
and
(c)
no joint
venture is created hereby or by the other Loan Documents or otherwise exists
by
virtue of the transactions contemplated hereby among the Lenders or among
the
Grantors and the Lenders.
9.15 Additional
Grantors; Release.
(a)
Each Subsidiary of the Borrower that is required to become a party to this
Agreement pursuant to Section 6.9 of the Credit Agreement shall become a
Grantor
and Guarantor for all purposes of this Agreement upon execution and delivery
by
such Subsidiary of an Assumption Agreement in the form of Annex 1
hereto.
(b) At
such
time as the Loans, the Reimbursement Obligations and the other Obligations
(other than Obligations in respect of Specified Hedge Agreements and Specified
Cash Management Agreements and contingent indemnification obligations not
yet
due and payable) shall have been paid in full, the Commitments have been
terminated and no Letters of Credit shall be outstanding, the Collateral
shall
be released from the Liens created hereby, and this Agreement and all
obligations (other than those expressly stated to survive such termination)
of
the Administrative Agent and each Grantor hereunder shall terminate, all
without
delivery of any instrument or performance of any act by any party, and all
rights to the Collateral shall revert to the Grantors. At the request and
sole
expense of any Grantor following any such termination, the Administrative
Agent
shall deliver to such Grantor any Collateral held by the Administrative Agent
hereunder, and execute and deliver to such Grantor such documents as such
Grantor shall reasonably request to evidence such termination.
(c) If
any of
the Collateral shall be sold, transferred or otherwise disposed of by any
Grantor in a transaction not prohibited by any Loan Document or consented
to in
accordance with Section 10.1 of the Credit Agreement, then the Administrative
Agent, at the request and sole expense of such Grantor, shall promptly execute
and deliver to such Grantor all releases (which may be effected pursuant
to a
Release) or other documents reasonably necessary or desirable for the release
of
the Liens created hereby on such Collateral. At the request and sole expense
of
the Borrower, a Subsidiary Guarantor shall be released from its obligations
hereunder in the event that all the Equity Interests of such Subsidiary
23
Guarantor
shall be sold, transferred or otherwise disposed of in a transaction not
prohibited by the Credit Agreement.
9.16 WAIVER
OF JURY TRIAL.EACH
GRANTOR HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES TRIAL BY JURY IN ANY
LEGAL
ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT
AND
FOR ANY COUNTERCLAIM THEREIN.
24
IN
WITNESS WHEREOF, each of the undersigned has caused this Guarantee and
Collateral Agreement to be duly executed and delivered as of the date first
above written.
CHARTER
COMMUNICATIONS OPERATING, LLC
By:
/s/
Eloise Schmitz
Name:
Eloise
Schmitz
Title:
Senior Vice President - Strategic Planning
CCO
HOLDINGS, LLC
By:
/s/
Eloise Schmitz
Name:
Eloise Schmitz
Title:
Senior Vice President - Strategic Planning
THE
SUBSIDIARY GUARANTORS LISTED
ON
SCHEDULE 6 HEREOF
By:
/s/
Eloise Schmitz
Name:
Eloise Schmitz
Title:
Senior Vice President - Strategic Planning
Schedule
1
NOTICE
ADDRESSES OF GUARANTORS
c/o
Charter Communications Holdings, LLC
12405
Powerscourt Drive
St.
Louis, Missouri 63131
Attention:
Senior Vice President - Strategic Planning
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
Schedule
2
DESCRIPTION
OF PLEDGED SECURITIES
Pledged
LLC Interests:
|
Name
of Limited Liability Company
|
Type
of Interest
|
Percentage
of Interest Pledged
|
Pledged
Partnership Interests:
|
Name
of Partnership
|
Type
of Interest
|
Percentage
of Interest Pledged
|
Pledged
Stock of Corporations:
|
Issuer
|
Class
of Stock
|
Stock
Certificate No.
|
Percentage
of Shares Pledged
|
Pledged
Notes:
|
Issuer
|
Payee
|
Principal
Amount
|
Schedule
3
FILINGS
AND OTHER ACTIONS
REQUIRED
TO PERFECT SECURITY INTERESTS
Uniform
Commercial Code Filings
[List
each office where a financing statement is to be filed]
Patent
and Trademark Filings
[List
all
filings]
Actions
with respect to Pledged Securities
[Describe
actions to be taken]
Other
Actions
[Describe
other actions to be taken]
Schedule
4
LOCATION
OF JURISDICTION OF ORGANIZATION
|
Grantor
|
Jurisdiction
of Organization
|
Schedule
5
PATENTS
AND PATENT LICENSES
[List
Patents and Patent Licenses]
TRADEMARKS
AND TRADEMARK LICENSES
[List
Trademarks and Trademark Licenses]
ACKNOWLEDGMENT
AND CONSENT
The
undersigned hereby acknowledges receipt of a copy of the Guarantee and
Collateral Agreement, dated as of March 18, 1999, as amended and restated
as of
March 6, 2007 (as the same may be further amended, amended and restated,
supplemented or otherwise modified from time to time, the “Agreement”),
made
by the Grantors parties thereto for the benefit of JPMorgan Chase Bank, N.A.,
as
Administrative Agent. The undersigned agrees for the benefit of the
Administrative Agent and the Lenders as follows:
1.
The
undersigned will be bound by the terms of the Agreement and will comply with
such terms insofar as such terms are applicable to the undersigned.
2.
The
undersigned will notify the Administrative Agent promptly in writing of the
occurrence of any of the events described in Section 6.5(a) of the
Agreement.
3.
The
terms of Sections 7.1(c) and 7.5 of the Agreement shall apply to it,
mutatis mutandis,
with
respect to all actions that may be required of it pursuant to Section 7.1(c)
or
7.5 of the Agreement.
[NAME
OF
ISSUER]
By_______________________________________
Name:
Title:
Address
for Notices: ________________________
_________________________________________
_________________________________________
Fax:
Annex
1
to the
Guarantee
and Collateral Agreement
ASSUMPTION
AGREEMENT, dated as of ________________, ____, made by
______________________________, a ______________ (the “Additional
Grantor”),
in
favor of JPMorgan Chase Bank, N.A., as Administrative Agent (in such capacity,
the “Administrative
Agent”)
for
the banks and other financial institutions or entities (the “Lenders”)
parties to the Credit Agreement referred to below. All capitalized terms
not
defined herein shall have the meaning ascribed to them in such Credit
Agreement.
W I T N E
60;S S E T H
:
WHEREAS,
Charter Communications Operating, LLC (the “Borrower”),
certain Affiliates of the Borrower, the Lenders, the Administrative Agent
and
the other Agents named therein have entered into a Credit Agreement, dated
as of
March 18, 1999, as amended and restated as of March 6, 2007 (as further amended,
supplemented, restated or otherwise modified from time to time, the
“Credit
Agreement”);
WHEREAS,
in connection with the Credit Agreement, the Borrower and certain of its
Affiliates (other than the Additional Grantor) have entered into the Guarantee
and Collateral Agreement, dated as of March 18, 1999, as amended and restated
as
of April 28, 2006 (as further amended, supplemented, restated or otherwise
modified from time to time, the “Guarantee
and Collateral Agreement”),
in
favor of the Administrative Agent for the benefit of the Lenders;
WHEREAS,
the Credit Agreement requires the Additional Grantor to become a party to
the
Guarantee and Collateral Agreement; and
WHEREAS,
the Additional Grantor has agreed to execute and deliver this Assumption
Agreement in order to become a party to the Guarantee and Collateral Agreement;
NOW,
THEREFORE, IT IS AGREED:
By
executing and delivering this Assumption Agreement, the Additional Grantor,
as
provided in Section 9.15 of the Guarantee and Collateral Agreement, hereby
becomes a party to the Guarantee and Collateral Agreement as a Grantor and
Guarantor thereunder with the same force and effect as if originally named
therein as a Grantor and Guarantor and, without limiting the generality of
the
foregoing, hereby expressly assumes all obligations and liabilities of a
Grantor
and Guarantor thereunder. The information set forth in Annex 1-A hereto is
hereby added to the information set forth in the Schedules to the Guarantee
and
Collateral Agreement. The Additional Grantor hereby represents and warrants
that
each of the representations and warranties contained in Section 5 of the
Guarantee and Collateral Agreement is true and correct on and as the date
hereof
(after giving effect to this Assumption Agreement) 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).
IN
WITNESS WHEREOF, the undersigned has caused this Assumption Agreement to
be duly
executed and delivered as of the date first above written.
[ADDITIONAL
GRANTOR]
By:___________________________
Name:
Title:
Annex
1-A
to the
Assumption
Agreement
Supplement
to Schedule 1
Supplement
to Schedule 2
Supplement
to Schedule 3
Supplement
to Schedule 4
Supplement
to Schedule 5
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 3. [RESERVED] |
38
|
||
| 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
|
Page
| 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. |
[RESERVED]
|
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 7. [RESERVED] |
59
|
||
| SECTION 8. EVENTS OF DEFAULT |
59
|
||
| Section 8.1 | Events of Default |
59
|
| Section 8.2. |
Acceleration
|
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. |
Delegation
of Duties
|
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
|
Page
| Section 9.10. | Co-Documentation Agents and Co-Syndication Agents |
64
|
|
| Section 9.11. | Intercreditor Agreement |
64
|
| SECTION 10. MISCELLANEOUS |
64
|
||
| Section 10.1 |
Amendments
and Waivers
|
64
|
|
| Section 10.2 |
Notices
|
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:
2
(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).
3
“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:
4
(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
5
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.
6
“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
7
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:
8
(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
9
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
10
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).
11
“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.
12
“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
13
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
14
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
15
(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;
16
(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
17
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.
18
“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
19
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;
20
(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;
21
(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
22
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.
23
“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.
24
“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.
25
“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
26
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.
27
“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:
28
(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
29
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
30
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
31
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,
32
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
33
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.
34
(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
35
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.
36
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
37
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
38
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
39
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.
40
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;
41
(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.
42
(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:
43
(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
44
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
45
(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;
46
(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
47
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:
48
(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;
49
(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
50
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];
51
(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.
52
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
53
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.
54
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
55
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
56
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
57
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;
58
(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
59
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
60
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
61
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
62
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
63
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
64
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
65
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
|
66
|
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
67
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
68
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
69
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.
70
(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
71
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
72
(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).
73
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.
74
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
Exhibit
10.4
PLEDGE
AGREEMENT
made
by
CCO
Holdings, LLC
in
favor
of
Bank
of
America, N.A.,
as
Collateral Agent
Dated
as
of March 6, 2007
TABLE
OF
CONTENTS
Page
| SECTION I. DEFINED TERMS |
1
|
||
| Section 1.1 | Definitions |
1
|
|
| Section 1.2 |
Other
Definitional Provisions
|
3
|
|
| SECTION 2. GRANT OF SECURITY INTEREST |
3
|
||
| Section 2.1 |
Collateral
|
3
|
| SECTION 3. REPRESENTATIONS AND WARRANTIES |
4
|
||
|
|
|||
| Section 3.1 |
Title;
No Other Liens
|
4
|
|
| Section 3.2 |
Perfected
Liens
|
4
|
|
| Section 3.3 | Jurisdiction of Organization |
4
|
|
| Section 3.4 | Pledged LLC Interests |
4
|
|
| SECTION 4. COVENANTS |
5
|
||
| Section 4.1 | Maintenance of Perfect Security Interest; Further Documentation |
5
|
|
| Section 4.2 | Changes in Locations, Name, etc |
5
|
|
| Section 4.3 | Pledged LLC Interests |
6
|
|
| SECTION 5. PARI PASSU SECURED INDEBTEDNESS |
6
|
||
| Section 5.1 | Additional Secured Obligations |
6
|
|
| SECTION 6. REMEDIAL PROVISIONS |
7
|
||
| Section 6.1 |
Remedies
|
7
|
|
| Section 6.2 |
Proceeds
to be Turned Over to Collateral Agent
|
8
|
|
| Section 6.3 | Code and Other Remedies |
8
|
|
| Section 6.4 | Application of Proceeds from Collateral |
8
|
|
| Section 6.5 | Deficiency |
9
|
|
| Section 6.6 | Control by Majority |
9
|
|
| SECTION 7. THE COLLATERAL AGENT |
10
|
||
| Section 7.1 | Collateral Agent's Appointment as Attorney-in-Fact, etc |
10
|
|
| Section 7.2 | Duty of Collateral Agent |
10
|
|
| Section 7.3 | Financing Statements |
10
|
|
| Section 7.4 | Authority of Collateral Agent |
11
|
|
| Section 7.5 | Limitation on Duty of Collateral Agent in Respect of Collateral |
11
|
|
| Section 7.6 | Reliance |
11
|
|
| Section 7.7 | Consultation with Counsel, Etc |
12
|
|
| Section 7.8 | Successor Collateral Agent |
12
|
| SECTION 8. MISCELLANEOUS |
12
|
||
| Section 8.1 | Amendments in Writing |
12
|
|
| Section 8.2 | Notices |
13
|
|
| Section 8.3 | No Waiver by Course of Conduct; Cumulative Remedies |
13
|
|
| Section 8.4 | Enforcement Expenses; Indemnification |
13
|
|
| Section 8.5 | Successors and Assigns |
13
|
|
| Section 8.6 | Counterparts |
14
|
|
| Section 8.7 | Severablility |
14
|
|
| Section 8.8 | Section Headers |
14
|
-i-
Page
| Section 8.9 | Integration |
14
|
|
| Section 8.10 | GOVERNING LAW |
14
|
|
| Section 8.11 | Submission to Jurisdiction; Waivers |
14
|
|
| Section 8.12 | Acknowledgments |
15
|
|
| Section 8.13 | Release |
15
|
|
| Section 8.14 | WAIVER OF JURY TRIAL |
16
|
|
| Section 8.15 | Intercreditor Agreement |
16
|
ANNEXES
Annex
1 Form
of
Issuer’s Acknowledgment and Consent
Annex
2 Form
of
Acknowledgement
-ii-
PLEDGE
AGREEMENT
PLEDGE
AGREEMENT, dated as of March 6, 2007, made by CCO Holdings, LLC, a Delaware
limited liability company (the “Grantor”),
in
favor of BANK OF AMERICA, N.A., as collateral agent (in such capacity, the
“Collateral
Agent”)
for
the Secured Parties (as defined below).
W
I T
N E S S E T H:
WHEREAS,
the Grantor, Bank of America, N.A., as administrative agent (in such capacity,
the “Administrative
Agent”)
and
the other parties thereto are concurrently with the execution hereof entering
into the Credit Agreement (as amended, amended and restated or otherwise
modified from time to time, the “Credit
Agreement”),
dated
as of the date hereof; and
WHEREAS,
it is a condition precedent to the initial borrowings under the Credit Agreement
that the Grantor enter into this Agreement in order to secure the Secured
Obligations.
NOW,
THEREFORE, in consideration of the above premises, the parties hereto hereby
agree as follows:
SECTION
1. DEFINED
TERMS
1.1 Definitions
(a) Unless
otherwise defined herein, terms defined in the Credit Agreement and used herein
shall have the meanings given to them in the Credit Agreement, and the term
Certificated Security is used herein as defined in the Applicable
UCC.
(b) The
following terms shall have the following meanings:
“Acknowledgment”:
as
defined in Section 5.1.
“Agreement”:
this
Pledge Agreement, as the same may be amended, supplemented, restated or
otherwise modified from time to time.
“Applicable
UCC”:
the
Uniform Commercial Code as from time to time in effect in the State of New
York;
provided,
however,
that,
at any time, if by reason of mandatory provisions of law, any or all of the
perfection or priority of the Collateral Agent’s and the Secured Parties’
security interest in any item or portion of the Collateral is governed by the
Uniform Commercial Code as in effect in a jurisdiction other than the State
of
New York, the term “Applicable UCC” shall mean the Uniform Commercial Code as in
effect, at such time, in such other jurisdiction for purposes of the provisions
hereof relating to such perfection or priority and for purposes of definitions
relating to such provisions.
“Bankruptcy
Code”
means
the United States Bankruptcy Code (11 U.S.C. §101 et seq.), as amended from time
to time.
“Collateral”:
as
defined in Section 2.1.
“Event
of Default”:
as
defined in the Credit Agreement and also including any “event of default” as
defined in any Pari Passu Secured Indebtedness Document.
“Grantor”:
as
defined in the preamble.
“Insolvency
Proceeding or Liquidation”
means
(i) any voluntary or involuntary case or proceeding under the Bankruptcy Code
with respect to the Grantor, (ii) any other voluntary or involuntary insolvency,
reorganization or bankruptcy case or proceeding, or any receivership,
liquidation, reorganization or other similar case or proceeding with respect
to
the Grantor or with respect to a material portion of its assets, (iii) any
liquidation, dissolution, reorganization or winding up of the Grantor, whether
voluntary or involuntary and whether or not involving insolvency or bankruptcy,
and whether or not involving any judicial or other proceeding, or (iv) any
general assignment for the benefit of creditors or any other marshalling of
assets and liabilities of the Grantor.
“Intercreditor
Agreement”:
as
defined in the Credit Agreement and also including any other intercreditor
agreement entered into by the Collateral Agent in accordance with the terms
of
the Credit Agreement in order to subordinate the Lien securing the Secured
Obligations to the Liens on the Collateral securing any other obligations of
Grantor.
“Issuer”:
Charter Communications Operating, LLC, a Delaware limited liability
company.
“Pari
Passu Representative”
means,
in the case of any Pari Passu Secured Indebtedness, the collateral agent, agent
or representative of the holders of such Pari Passu Secured Indebtedness who
maintains the transfer register for such Pari Passu Secured Indebtedness and
is
appointed as a collateral agent, agent or representative (for purposes related
to the administration of the security documents) pursuant to the indenture,
credit agreement or other agreement governing such Pari Passu Secured
Indebtedness, together with its successors in such capacity.
“Pari
Passu Secured Indebtedness”
means
any Indebtedness (including pursuant to any Guarantee) which is designated
as
Pari Passu Secured Indebtedness in accordance with the procedures set forth
in
Section 5.1.
“Pari
Passu Secured Indebtedness Documents”
means
any documents entered into in connection with the incurrence of Pari Passu
Secured Indebtedness.
“Permitted
Collateral Liens”
as
defined in Section 3.1.
“Pledged
LLC Interests”:
in
each case, whether now existing or hereafter acquired, all of the Grantor’s
right, title and interest in and to the Equity Interests of the Issuer, from
time to time outstanding.
-2-
“Post-Petition
Interest”means
any interest or entitlement to fees or expenses or other charges that accrues
after the commencement of any Insolvency Proceeding or Liquidation, whether
or
not allowed or allowable in any such Insolvency Proceeding or
Liquidation.
“Prior
Lien Indebtedness”
means
all Indebtedness that is secured by a Lien that is permitted to rank prior
to
the Lien of this Agreement pursuant to the terms of this Agreement.
“Proceeds”:
all
“proceeds” as such term is defined in Section 9-102(a)(64) of the
Applicable UCC and, in any event, shall include, without limitation, all
dividends, distributions or other income from the Pledged LLC Interests,
collections thereon or distributions or payments with respect
thereto.
“Secured
Indebtedness Documents”:
the
collective reference to the Loan Documents and any Pari Passu Secured
Indebtedness Documents.
“Secured
Obligations”:
the
collective reference to all principal of and interest (including without
limitation any Post-Petition Interest) and premium (if any) on all indebtedness
under, and all fees expenses and other amounts (including costs and
indemnification obligations) payable from time to time pursuant to (i) the
Credit Agreement and the Loans (including any Incremental Loans), this Agreement
and any other document made, delivered or given in connection with any of the
foregoing and (ii) each other Pari Passu Secured Indebtedness Document and
any
loans, notes or other extensions of credit thereunder.
“Secured
Parties”:
the
Administrative Agent, the Collateral Agent, the Lenders and any other holders
of
Secured Obligations.
1.2 Other
Definitional Provisions
(a) The
words
“hereof,” “herein”, “hereto” and “hereunder” and words of similar import when
used in this Agreement shall refer to this Agreement as a whole and not to
any
particular provision of this Agreement, and Section references are to this
Agreement unless otherwise specified.
(b) The
meanings given to terms defined herein shall be equally applicable to both
the
singular and plural forms of such terms. The term “including” means “including
without limitation.”
(c) References
to any agreement shall be to such agreement as amended, amended and restated
or
otherwise modified from time to time.
SECTION
2. GRANT
OF
SECURITY INTEREST
2.1 Collateral.
The
Grantor hereby grants to the Collateral Agent, for the benefit of the Secured
Parties, a security interest in all of the following property now owned or
at
any time hereafter acquired by the Grantor or in which the Grantor now has
or at
any time in the future may acquire
-3-
any
right, title or interest (collectively, the “Collateral”),
as
collateral security for the prompt and complete payment and performance when
due
(whether at the stated maturity, by acceleration or otherwise) of the Secured
Obligations: all Pledged LLC Interests and all Proceeds
thereof.
SECTION
3. REPRESENTATIONS
AND WARRANTIES
To
induce
the Collateral Agent and the Lenders to enter into the Credit Agreement, the
Grantor hereby represents and warrants to the Collateral Agent and each other
Secured Party that:
3.1 Title;
No Other Liens.
Except
for the security interest granted to the Collateral Agent for the benefit of
the
Secured Parties pursuant to this Agreement, the Grantor owns each item of the
Collateral free and clear of any and all Liens or claims of others, except
for
Liens not prohibited by the Credit Agreement (“Permitted
Collateral Liens”).
No
financing statement or other public notice with respect to all or any part
of
the Collateral is on file or of record in any public office, except such as
have
been filed in favor of the Collateral Agent, for the benefit of the Secured
Parties, pursuant to this Agreement and except for other filings with respect
to
Permitted Collateral Liens.
3.2 Perfected
Liens.
Upon
the
filing of financing statements in proper form for filing in the office of the
Secretary of State of Delaware, the security interest granted pursuant to this
Agreement, (a) will constitute a valid perfected security interest in all
of the Collateral in favor of the Collateral Agent, for the benefit of the
Secured Parties, as collateral security for the Secured Obligations and (b)
will
be prior to all other Liens on the Collateral in existence on the date hereof
except for Permitted Collateral Liens.
3.3 Jurisdiction
of Organization.
3.4 Pledged
LLC
Interests.
(a) The
Pledged LLC Interests constitute all the issued and outstanding shares of all
classes of the Equity Interests of the Issuer.
(b) The
Pledged LLC Interests have been duly and validly issued.
(c) None
of
the Pledged LLC Interests constitutes a security under Section 8-103 of the
Applicable UCC or the corresponding code or statute of any other applicable
jurisdiction.
-4-
(d) The
Grantor is the record and beneficial owner of the Pledged LLC Interests, free
of
any and all Liens or options in favor of, or claims of, any other Person, except
the security interest created by this Agreement (subject to Permitted Collateral
Liens).
SECTION
4. COVENANTS
The
Grantor covenants and agrees that, from and after the date of this Agreement
until the Secured Obligations shall have been paid in full or the relevant
Collateral has been released in accordance with Section 8.13:
4.1 Maintenance
of Perfected Security Interest; Further Documentation.
(a) The
Grantor shall take all reasonable and necessary actions to maintain the security
interest created by this Agreement as a perfected security interest (subject
to
Permitted Collateral Liens) with the priority required by the Credit Agreement
and shall defend such security interest against the claims and demands of all
Persons whomsoever (other than the holders of Permitted Collateral
Liens).
(b) The
Grantor will furnish to the Collateral Agent from time to time, as reasonably
requested by the Collateral Agent, statements and schedules further identifying
and describing the assets and property of the Grantor constituting, or intended
to constitute Collateral.
(c) At
any
time and from time to time, at the sole expense of the Grantor, the Grantor
will
promptly and duly execute and deliver, and have recorded, such further
instruments and documents and take such further actions as may be necessary
or
as the Collateral Agent may reasonably request for the purpose of obtaining
or
preserving the full benefits of this Agreement and of the rights and powers
herein granted, including, without limitation, filing any financing or
continuation statements under the Uniform Commercial Code (or other similar
laws) in effect in any jurisdiction with respect to the security interests
created hereby.
4.2 Changes
in Locations, Name, etc.
The
Grantor will not:
(a) change
its jurisdiction of organization from that referred to in Section 3.3;
or
(b) change
its name to such an extent that any financing statement filed in connection
with
this Agreement would become seriously misleading;
unless,
within 30 days of the taking of any such actions, the Grantor delivers to the
Collateral Agent notice of such change and all documents necessary to maintain
the validity, perfection and priority of the security interests provided for
herein.
-5-
4.3 Pledged
LLC
Interests.
(a) If
any
Collateral shall be or become evidenced by a certificated security or if the
Grantor shall become entitled to receive or shall receive any certificate
(including, without limitation, any certificate representing a dividend or
a
distribution in connection with any reclassification, increase or reduction
of
capital or any certificate issued in connection with any reorganization), option
or rights in respect of the Equity Interests of the Issuer, whether in addition
to, in substitution of, as a conversion of, or in exchange for, any of the
Pledged LLC Interests, or otherwise in respect thereof, the Grantor shall accept
the same as the agent of the Collateral Agent and the other Secured Parties,
hold the same in trust for the Collateral Agent and the other Secured Parties,
and, with respect to any certificated security, deliver the same forthwith
to
the Collateral Agent in the exact form received, duly indorsed by the Grantor
to
the Collateral Agent, together with an undated power covering such certificated
security duly executed in blank by the Grantor, to be held by the Collateral
Agent, subject to the terms hereof, as additional collateral security for the
Secured Obligations; provided, that the Grantor shall not be required to deliver
any such certificated security to the Collateral Agent to the extent such
certificated security is required to be delivered to the representative for
any
holders of Prior Lien Indebtedness.
(b) Without
delivery of all certificates representing any equity interests in the Issuer
to
the extent required by clause (a) above, the Grantor will not, and will not
permit the Issuer to, amend the Issuer’s certificate of formation or operating
agreement to provide that any Equity Interests in the Issuer constitute a
security under Section 8-103 of the Applicable UCC or the corresponding
code or statute of any other applicable jurisdiction.
(c) The
Grantor shall cause the Issuer to execute and deliver on the date hereof the
Issuer’s Acknowledgment and Consent in the form of Annex
1
hereto.
(d) Notwithstanding
anything herein to the contrary, the Grantor shall be entitled to (i) receive,
retain and dispose of, free of the Lien of this Agreement, in its absolute
discretion the proceeds of all Restricted Payments and Investments received
by
the Grantor, and (ii) make Restricted Payments and Investments with its funds
free of the Lien of this Agreement, and engage in other transactions in respect
of its assets (including Collateral), in each case to the extent otherwise
permissible under the Secured Indebtedness Documents, provided that (A) any
distribution in respect of Collateral resulting from any Insolvency Proceeding
or Liquidation shall be subject to Section 6.1(b), and (B) the proceeds of
any
sale or other disposition of the Equity Interests of the Issuer shall constitute
Collateral hereunder.
SECTION
5. PARI
PASSU SECURED INDEBTEDNESS
5.1 Additional
Secured Obligations.
The
Grantor may from time to time designate additional Indebtedness as “Pari Passu
Secured Indebtedness” for the purposes hereof by delivering to the Collateral
Agent (i) an Officer’s Certificate that (A) identifies such Indebtedness
and the material financial terms thereof, (B) states that the obligations
thereunder are designated as “Pari Passu Secured
-6-
Indebtedness”
for the purposes hereof and (C) states that such Indebtedness is permitted
pursuant to the terms of the Secured Indebtedness Documents to be secured
on a
pari passu basis with the other Secured Obligations, and (ii) an acknowledgment
from the holders of such Pari Passu Secured Indebtedness (or a Pari Passu
Representative acting on their behalf) in the form of Annex
2
hereto
(the “Acknowledgment”).
SECTION
6. REMEDIAL
PROVISIONS
6.1 Remedies.
(a) Unless
an
Event of Default shall have occurred and be continuing and the Collateral Agent
shall have given written notice to the Grantor of the Collateral Agent’s intent
to exercise its corresponding rights pursuant to Section 6.1(b), the Grantor
shall be permitted to receive all cash dividends paid in respect of the Pledged
LLC Interests and to exercise all voting and organizational rights with respect
to the Pledged LLC Interests; provided,
however,
that no
vote shall be cast or right exercised or other action taken which, in the
Collateral Agent’s reasonable judgment, would impair the Collateral or which
would be inconsistent with or result in any violation of any provision of the
Credit Agreement, this Agreement or any other Secured Indebtedness
Document.
(b) Subject
to any rights of holders of Prior Lien Indebtedness, if an Event of Default
shall occur and be continuing and the Collateral Agent shall give written notice
of its intent to exercise such rights to the relevant Grantor or Grantors,
(i)
the Collateral Agent shall have the right to receive any and all cash dividends,
payments or other Proceeds paid in respect of the Pledged LLC Interests and
make
application thereof to the Secured Obligations in the order specified in Section
6.4, and (ii) any or all of the Pledged LLC Interests shall be registered in
the
name of the Collateral Agent or its nominee, and the Collateral Agent or its
nominee may thereafter exercise (x) all voting, organizational and other rights
pertaining to such Pledged LLC Interests at any meeting of shareholders of
the
Issuer or otherwise and (y) any and all rights of conversion, exchange and
subscription and any other rights, privileges or options pertaining to such
Pledged LLC Interests as if it were the absolute owner thereof (including,
without limitation, the right to exchange at its discretion any and all of
the
Pledged LLC Interests upon the merger, consolidation, reorganization,
recapitalization or other fundamental change in the organizational structure
of
the Issuer, or upon the exercise by the Grantor or the Collateral Agent of
any
right, privilege or option pertaining to such Pledged LLC Interests, and in
connection therewith, the right to deposit and deliver any and all of the
Pledged LLC Interests with any committee, depositary, transfer agent, registrar
or other designated agency upon such terms and conditions as the Collateral
Agent may determine), all without liability except to account for property
actually received by it, but the Collateral Agent shall have no duty to the
Grantor to exercise any such right, privilege or option and shall not be
responsible for any failure to do so or delay in so doing.
(c) The
Grantor hereby authorizes and instructs the Issuer to (i) comply with any
instruction received by it from the Collateral Agent in writing that (x) states
that an Event of Default has occurred and is continuing and (y) is otherwise
in
accordance with the terms of this Agreement, without any other or further
instructions from the Grantor, and the Grantor agrees
-7-
that
the
Issuer shall be fully protected in so complying, and (ii) to the extent required
by clause (b) above, pay any dividends or other payments with respect to
the
Pledged LLC Interests directly to the Collateral Agent.
6.3 Code
and Other Remedies.
If an
Event of Default shall occur and be continuing, the Collateral Agent, on behalf
of the Lenders, may exercise, in addition to all other rights and remedies
granted to them in this Agreement and in any other instrument or agreement
securing, evidencing or relating to the Obligations, all rights and remedies
of
a secured party under the Applicable UCC or any other applicable law. Without
limiting the generality of the foregoing, the Collateral Agent, without demand
of performance or other demand, presentment, protest, advertisement or notice
of
any kind (except any notice required by law referred to below) to or upon the
Grantor or any other Person (all and each of which demands, defenses,
advertisements and notices are hereby waived), may in such circumstances
forthwith collect, receive, appropriate and realize upon the Collateral, or
any
part thereof, and/or may forthwith sell, lease, assign, give option or options
to purchase, or otherwise dispose of and deliver the Collateral or any part
thereof (or contract to do any of the foregoing), in one or more parcels at
public or, to the extent permitted by law, private sale or sales, at any
exchange, broker’s board or office of the Collateral Agent or any other Secured
Party or elsewhere upon such terms and conditions as it may deem advisable
and
at such prices as it may deem best, for cash or on credit or for future delivery
without assumption of any credit risk. The Collateral Agent or any other Secured
Party shall have the right upon any such public sale or sales, and, to the
extent permitted by law, upon any such private sale or sales, to purchase the
whole or any part of the Collateral so sold, free of any right or equity of
redemption in the Grantor, which right or equity is hereby waived and released.
To the extent permitted by applicable law, the Grantor waives all claims,
damages and demands it may acquire against the Collateral Agent or any Secured
Party arising out of the exercise by them of any rights hereunder. If any notice
of a proposed sale or other disposition of Collateral shall be required by
law,
such notice shall be deemed reasonable and proper if given at least 10 days
before such sale or other disposition.
6.4 Application
of Proceeds from Collateral.
Subject
to the rights of any holders of Prior Lien Indebtedness under the Applicable
UCC
or otherwise, the Collateral Agent
-8-
shall
apply any Collateral or Proceeds received following any exercise of remedies
by
the Collateral Agent or pursuant to any Insolvency of Liquidation Proceeding
in
the following order:
First:
to the
Collateral Agent, its agents and its attorneys for amounts due under Section
8.4
hereof or under any Secured Indebtedness Document;
Second:
pro
rata
to the
Administrative Agent and each Pari Passu Representatives (based on the amount
of
Secured Obligations outstanding under the Credit Agreement and the other Secured
Indebtedness Documents) for application to the Secured Obligations in the manner
provided in the Loan Documents and Pari Passu Indebtedness Documents, as
applicable, until all Secured Obligations have been paid in full in cash or
the
cash amount held by the Administrative Agent and the Pari Passu Representatives
in respect of all Secured Obligations is sufficient to pay all Secured
Obligations in full in cash; and
Third:
any
surplus remaining after the payment or distribution in full of the cash or
other
property as described in the preceding clauses will be paid or distributed
to
the Grantor, its successors or assigns, or as a court of competent jurisdiction
may direct.
To
the
extent permitted by applicable law, the Grantor waives all claims, damages
and
demands it may acquire against the Collateral Agent or any Secured Party arising
out of the exercise by them of any rights hereunder.
6.5 Deficiency.
The
Grantor shall remain liable for any deficiency if the proceeds of any sale
or
other disposition of the Collateral are insufficient to pay its Secured
Obligations and the fees and disbursements of any attorneys employed by the
Collateral Agent to collect such deficiency, to the extent such fees and
disbursements are reimbursable under Section 8.4.
6.6 Control
by Majority.
Holders
of a majority in aggregate principal amount of the then outstanding Secured
Obligations may direct the time, method and place of conducting any proceeding
for exercising any right or remedy available to the Collateral Agent under
this
Agreement. However, the Collateral Agent may refuse to follow any direction
that
conflicts with law or this Agreement or that the Collateral Agent determines
may
be prejudicial to the rights of any other holder of Secured Obligations or
that
may involve the Collateral Agent in personal liability. Prior to taking any
action under this Agreement, the Collateral Agent shall be entitled to
indemnification satisfactory to it in its sole discretion against all losses
and
expenses caused by taking or not taking such action.
-9-
SECTION
7. THE
COLLATERAL AGENT
7.1 Collateral
Agent’s Appointment as Attorney-in-Fact, etc.
(a) The
Grantor hereby irrevocably constitutes and appoints the Collateral Agent and
any
officer or agent thereof, with full power of substitution, as its true and
lawful attorney-in-fact with full irrevocable power and authority in the place
and stead of the Grantor and in the name of the Grantor or in its own name,
for
the purpose of carrying out the terms of this Agreement, to take any and all
appropriate action and to execute any and all documents and instruments, in
each
case after prior notice to the Grantor, which may be necessary or desirable
to
accomplish the purposes of this Agreement and to cause performance or
compliance, with any agreement of the Grantor contained herein, if the Grantor
fails to perform or comply with any of its agreements contained
herein.
(b) The
expenses of the Collateral Agent and its agents or attorneys incurred in
connection with actions undertaken as provided in this Section 7.1 shall be
payable by the Grantor to the Collateral Agent on demand.
(c) All
powers, authorizations and agencies contained in this Agreement are coupled
with
an interest and are irrevocable until this Agreement is terminated and the
security interests created hereby are released.
7.2 Duty
of Collateral Agent.
The
Collateral Agent’s sole duty with respect to the custody, safekeeping and
physical preservation of the Collateral in its possession, under
Section 9-207 of the Applicable UCC or otherwise, shall be to deal with it
in the same manner as the Collateral Agent deals with similar property for
its
own account. Neither the Collateral Agent, any Secured Party nor any of their
respective officers, directors, employees or agents shall be liable for failure
to demand, collect or realize upon any of the Collateral or for any delay in
doing so or shall be under any obligation to sell or otherwise dispose of any
Collateral upon the request of the Grantor or any other Person or to take any
other action whatsoever with regard to the Collateral or any part thereof.
The
powers conferred on the Collateral Agent and the Secured Parties hereunder
are
solely to protect the Collateral Agent’s and the other Secured Parties’
interests in the Collateral and shall not impose any duty upon the Collateral
Agent or any other Secured Party to exercise any such powers. The Collateral
Agent and the other Secured Parties shall be accountable only for amounts that
they actually receive as a result of the exercise of such powers, and neither
they nor any of their officers, directors, employees or agents shall be
responsible to the Grantor for any act or failure to act hereunder, except
for
their own gross negligence or willful misconduct.
7.3 Financing
Statements.
Pursuant
to any applicable law, the Grantor authorizes the Collateral Agent to file
or
record financing statements and other filing or recording documents or
instruments with respect to the Collateral without the signature of the Grantor
in such form and in such offices as necessary to perfect the security interests
of the Collateral Agent under this Agreement.
-10-
7.4 Authority
of Collateral Agent.
The
Grantor acknowledges that the rights and responsibilities of the Collateral
Agent under this Agreement with respect to any action taken by the Collateral
Agent or the exercise or non-exercise by the Collateral Agent of any right
or
remedy provided for herein or resulting or arising out of this Agreement shall,
as between the Collateral Agent and the Lenders, be governed by the Credit
Agreement and by such other agreements with respect thereto as may exist from
time to time among them, but, as between the Collateral Agent and the Grantor,
the Collateral Agent shall be conclusively presumed to be acting as agent for
the Secured Parties with full and valid authority so to act or refrain from
acting, and the Grantor shall not be under any obligation, or entitlement,
to
make any inquiry respecting such authority.
7.5 Limitation
on Duty of Collateral Agent in Respect of Collateral.
Beyond
the exercise of reasonable care in the custody thereof, the Collateral Agent
shall have no duty as to any Collateral in its possession or control or in
the
possession or control of any agent or bailee or any income thereon or as to
preservation of rights against prior parties or any other rights pertaining
thereto and the Collateral Agent shall not be responsible for filing any
financing or continuation statements or recording any documents or instruments
in any public office at any time or times or otherwise perfecting or maintaining
the perfection of any security interest in the Collateral. The Collateral Agent
shall be deemed to have exercised reasonable care in the custody of the
Collateral in its possession if the Collateral is accorded treatment
substantially equal to that which it accords its own property and shall not
be
liable or responsible for any loss or diminution in the value of any of the
Collateral, by reason of the act or omission of any carrier, forwarding agency
or other agent or bailee selected by the Collateral Agent in good
faith.
The
Collateral Agent shall not be responsible for the existence, genuineness or
value of any of any of the Collateral or for the validity, perfection, priority
or enforceability of the Liens in any of the Collateral, whether impaired by
operation of law or by reason of any of any action or omission to act on its
part hereunder, except to the extent such action or omission constitutes gross
negligence, bad faith or willful misconduct on the part of the Collateral Agent,
for the validity or sufficiency of the Collateral or any agreement or assignment
contained therein, for the validity of the title of the Company to the
Collateral, for insuring the Collateral or for the payment of taxes, charges,
assessments or Liens upon the Collateral or otherwise as to the maintenance
of
the Collateral.
7.6 Reliance.
The
Collateral Agent shall be entitled to act upon any notice, certificate,
instrument, demand, request, direction, instruction, waiver, receipt, consent,
agreement or other document or communication furnished under this Agreement
or
the other Secured Indebtedness Documents which it in good faith believes, and
on
its face appears to be genuine, and it shall be entitled to rely conclusively
upon the due execution, validity and effectiveness, and the truth and
acceptability, of any provisions contained therein. The Collateral Agent shall
not have any responsibility to make any investigation into the facts or matters
stated in any notice, certificate, instrument, demand, request, direction,
instruction, waiver, receipt, consent, agreement or other
-11-
document
or communication furnished to it under this Agreement or the Loan Documents
or
in connection with the transactions contemplated herein or
therein.
7.7 Consultation
with Counsel, Etc.
The
Collateral Agent may consult with, and obtain advice from, legal counsel,
accountants and other experts selected by it, in connection with the performance
of its duties under this Agreement or the other Secured Indebtedness Documents
and it shall incur no liability and shall be fully protected in acting in good
faith in accordance with the written opinion and advice of such counsel,
accountants and other experts. The Collateral Agent shall not be responsible
for
the acts or omissions of any counsel, accountants and other experts selected
by
it with due care and in good faith and without gross negligence or willful
misconduct.
7.8 Successor
Collateral Agent.
The
Collateral Agent may resign as Collateral Agent upon 30 days’ notice to the
Lenders, each Pari Passu Representative and the Grantor. If the Collateral
Agent
shall resign as Collateral Agent under this Agreement, then the holders of
a
majority of Secured Obligations shall appoint from among the Lenders or the
Pari
Passu Representatives a successor agent for the Secured Parties, which successor
agent shall (unless an Event of Default under Section 8(a), Section 8(b),
Section 8(g) or Section 8(h) under the Credit Agreement (or any corresponding
Event of Default under any other Secured Indebtedness Document) with respect
to
the Grantor shall have occurred and be continuing) be subject to approval by
the
Grantor (which approval shall not be unreasonably withheld or delayed),
whereupon such successor agent shall succeed to the rights, powers and duties
of
the Collateral Agent, and the term “Collateral Agent” shall mean such successor
agent effective upon such appointment and approval, and the former Collateral
Agent’s rights, powers and duties as Collateral Agent shall be terminated,
without any other or further act or deed on the part of such former Collateral
Agent or any of the parties to this Agreement or any holders of Secured
Obligations. If no successor agent has accepted appointment as Collateral Agent
by the date that is 30 days following a retiring Collateral Agent’s notice of
resignation, the retiring Collateral Agent’s resignation shall nevertheless
thereupon become effective, and the Secured Parties shall assume and perform
all
of the duties of the Collateral Agent hereunder until such time, if any, as
the
holders of a majority of the Secured Obligations appoint a successor agent
as
provided for above. After any retiring Collateral Agent’s resignation as
Collateral Agent, the provisions of this Section 7 shall inure to its benefit
as
to any actions taken or omitted to be taken by it while it was Collateral Agent
under this Agreement.
SECTION
8. MISCELLANEOUS
8.1 Amendments
in Writing.
None
of
the terms or provisions of this Agreement may be waived, amended, supplemented
or otherwise modified except as provided in the Loan Documents and the Pari
Passu Secured Indebtedness Documents.
-12-
8.2 Notices.
All
notices, requests and demands hereunder shall be effected in the manner provided
for in Section 10.2 of the Credit Agreement; provided
that any
such notice, request or demand to or upon any holder of Pari Passu Secured
Indebtedness (other than the Lenders and the Collateral Agent) shall be
addressed to such holder at its notice address set forth in the
Acknowledgment.
8.3 No
Waiver by Course of Conduct; Cumulative Remedies.
Neither
the Collateral Agent nor any other Secured Party shall by any act (except by
a
written instrument pursuant to Section 8.1), delay, indulgence, omission or
otherwise be deemed to have waived any right or remedy hereunder. No failure
to
exercise, nor any delay in exercising, on the part of the Collateral Agent
or
any Secured Party, any right, power or privilege hereunder shall operate as
a
waiver thereof. No single or partial exercise of any right, power or privilege
hereunder shall preclude any other or further exercise thereof or the exercise
of any other right, power or privilege. A waiver by the Collateral Agent or
any
other Secured Party of any right or remedy hereunder on any one occasion shall
not be construed as a bar to any right or remedy which the Collateral Agent
or
such Secured Party would otherwise have on any future occasion. The rights
and
remedies herein provided are cumulative, may be exercised singly or concurrently
and are not exclusive of any other rights or remedies provided by
law.
8.4 Enforcement
Expenses; Indemnification.
(a) The
Grantor agrees to pay or reimburse the Collateral Agent for all its costs and
expenses incurred in enforcing or preserving any rights under this Agreement,
including, without limitation, the fees and disbursements of one firm of counsel
(together with any special and local counsel) to the Collateral
Agent.
(b) The
Grantor agrees to pay, and to save the Collateral Agent and the other Secured
Parties harmless from, any and all liabilities with respect to, or resulting
from any delay in paying, any and all stamp, excise, sales or other taxes which
may be payable or determined to be payable with respect to any of the
Collateral.
(c) The
Grantor agrees to pay, and to save the Collateral Agent harmless from, any
and
all 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 to the extent the Grantor would be required to do so pursuant
to Section 10.5 of the Credit Agreement.
(d) The
agreements in this Section 8.4 shall survive repayment of the Secured
Obligations and all other amounts payable under the Secured Indebtedness
Documents.
8.5 Successors
and Assigns.
This
Agreement shall be binding upon the successors and assigns of the Grantor and
shall inure to the benefit of the Collateral Agent and the other Secured Parties
and their
-13-
successors
and assigns; provided
that the
Grantor may not assign, transfer or delegate any of its rights or obligations
under this Agreement without the prior written consent of the Collateral
Agent.
8.6 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.
8.7 Severability.
Any
provision of this Agreement which 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.
8.8 Section
Headings.
The
Section headings used in this Agreement are for convenience of reference only
and are not to affect the construction hereof or be taken into consideration
in
the interpretation hereof.
8.9 Integration.
This
Agreement and the other Secured Indebtedness Documents represent the agreement
of the Grantor, the Collateral Agent and the Secured Parties with respect to
the
subject matter hereof and thereof, and there are no promises, undertakings,
representations or warranties by the Collateral Agent or any Secured Party
relative to the subject matter hereof and thereof not expressly set forth or
referred to herein or in the other Secured Indebtedness Documents.
8.10 GOVERNING
LAW.
THIS
AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE
WITH, THE LAWS OF THE STATE OF NEW YORK.
8.11 Submission
to Jurisdiction; Waivers.
The
Grantor hereby irrevocably and unconditionally:
(a) submits
for itself and its property in any legal action or proceeding relating to this
Agreement and the other Secured Indebtedness 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
-14-
the
United States of America for the Southern District of New York, and
appellate courts from any thereof;
(b) 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;
(c) 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 Grantor at its address referred
to in Section 10.2 of the Credit Agreement or at such other address of which
the
Collateral Agent shall have been notified pursuant thereto;
(d) 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
(e) 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.
8.12 Acknowledgments.
The
Grantor hereby acknowledges that:
(a) it
has
been advised by counsel in the negotiation, execution and delivery of this
Agreement and the other Secured Indebtedness Documents to which it is a
party;
(b) neither
the Collateral Agent nor any Secured Party has any fiduciary relationship with
or duty to the Grantor arising out of or in connection with this Agreement
or
any of the other Secured Indebtedness Documents, and the relationship between
the Grantor, on the one hand, and the Collateral Agent and Secured Parties,
on
the other hand, in connection herewith or therewith is solely that of debtor
and
creditor; and
(c) no
joint
venture is created hereby or by the other Secured Indebtedness Documents or
otherwise exists by virtue of the transactions contemplated hereby among the
Secured Parties or among the Grantor and the Secured Parties.
8.13 Release.
(a) At
such
time as the Loans and the other Secured Obligations (other than contingent
indemnification obligations) shall have been paid in full, the Collateral shall
be released from the Liens created hereby, and this Agreement and all
obligations (other than those expressly stated to survive such termination)
of
the Collateral Agent and the Grantor hereunder
-15-
shall
terminate, all without delivery of any instrument or performance of any act
by
any party, and all rights to the Collateral shall revert to the
Grantor.
(b) The
Collateral shall also be released to the extent provided in Section 10.14 of
the
Credit Agreement and the applicable provisions of the Pari Passu Secured
Indebtedness Documents.
(c) In
connection with any release of Collateral pursuant to clauses (a) or (b) above,
the Collateral Agent, at the request and sole expense of the Grantor, shall
execute and deliver to the Grantor all releases or other documents reasonably
necessary or desirable for the release of the Liens created hereby on such
Collateral.
8.14 WAIVER
OF JURY TRIAL.
THE
GRANTOR HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES TRIAL BY JURY IN ANY
LEGAL
ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT
AND
FOR ANY COUNTERCLAIM THEREIN.
8.15 Intercreditor
Agreement.
This
Agreement is subject to the terms of each Intercreditor Agreement. In the event
of any conflict between the terms of this Agreement and the terms of any
Intercreditor Agreement, the terms of the Intercreditor Agreement shall
control.
-16-
IN
WITNESS WHEREOF, each of the undersigned has caused this Pledge Agreement to
be
duly executed and delivered as of the date first above written.
CCH
Operating, LLC, as Grantor
By:
/s/
Eloise Schmitz
Name:
Eloise Schmitz
Title:
Senior Vice President - Strategic Planning
BANK
OF
AMERICA, N.A., as Collateral Agent
By:
/s/
William A. Bowen, Jr.
Name:
William A. Bowen, Jr.
Title:
Managing Director
ANNEX
1
ISSUER’S
ACKNOWLEDGMENT AND CONSENT
The
undersigned hereby acknowledges receipt of a copy of the Pledge Agreement,
dated
as of March 6, 2007 (as the same may be further amended, amended and restated,
supplemented or otherwise modified from time to time, the “Agreement”),
made
by CCO Holdings, LLC, a Delaware limited liability company for the benefit
of
Bank of America, N.A., as Collateral Agent. The undersigned agrees for the
benefit of the Collateral Agent and the Secured Parties as follows:
1. The
undersigned will be bound by the terms of the Agreement and will comply with
such terms insofar as such terms are applicable to the undersigned.
2. The
undersigned will notify the Collateral Agent promptly in writing of the
occurrence of any of the events described in Section 4.3(a) of the
Agreement.
CHARTER
COMMUNICATIONS OPERATING, LLC
By:
/s/
Eloise Schmitz
Name:
Eloise Schmitz
Title:
Senior Vice President - Strategic Planning
Address
for Notices:
c/o
Charter Communications Holdings, LLC
12405
Powerscourt Drive
St.
Louis, Missouri 63131
Attention:
Senior Vice President, Strategic
Planning
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
ANNEX
2
[Form
of
Acknowledgment]
Bank
of
America, N.A., as Collateral Agent
Agency
Management
Street
Address: 901 Main Street
Mail
Code: TX1-149-14-11
City,
State ZIP Code: Dallas, Texas 75202-3714
Attention:
Renita Cummings
Reference
is made to the Pledge Agreement (as amended, amended and restated, supplemented
or otherwise modified from time to time, the “Pledge
Agreement”;
capitalized terms used but not otherwise defined herein shall have the meanings
assigned to such terms in the Pledge Agreement), dated as of March 6, 2007
(the
“Pledge
Agreement”),
made
by CCO Holdings , LLC, a Delaware limited liability company (the “Grantor”),
and
Bank of America, N.A., as collateral agent (in such capacity and together with
any successors in such capacity, the “Collateral
Agent”).
By
executing and delivering this acknowledgment the undersigned hereby (i) agrees
to be bound by all the terms and provisions of the Pledge Agreement and to
comply with such terms and provisions insofar as such terms and provisions
are
applicable to the undersigned and (ii) appoints the Collateral Agent as its
collateral agent under the Pledge Agreement. Any notices under the Pledge
Agreement can be sent to the undersigned at its address set forth
below.
This
acknowledgment shall be construed in accordance with and governed by the laws
of
the State of New York.
_____________________________________
Date:_____________
Address
for Notices:
Acknowledged
and agreed:
Bank
of
America, N.A., as Collateral Agent
By: __________________________
Name:
Title:
Exhibit
99.1
NEWS
Charter
Announces Closing of Loan Facilities
ST.
LOUIS--March 6, 2007--Charter Communications, Inc. (NASDAQ:CHTR, “Charter” or
the “Company”) announced today that its indirect subsidiaries, Charter
Communications Operating, LLC (“Charter Operating”) and CCO Holdings, LLC (‘CCO
Holdings’), closed on portions of the $8.35 billion bank refinancings announced
in February 2007.
Charter
Operating closed on a new $1.5 billion revolving credit facility and a new
$1.5
billion term facility, both with interest rates of LIBOR plus 2.0%. The
refinancing of the $5 billion term loan portion of the Charter Operating
facilities is expected to close in late April 2007 with pricing at LIBOR plus
2.0%, down from the existing rate of LIBOR plus 2.625%. Also today, CCO Holdings
closed on a new $350 million third lien term loan with an interest rate of
LIBOR
plus 2.5%. These new facilities are expected to fund at various times over
the
next two months.
The
$8.35
billion of new senior secured credit facilities will refinance the existing
$6.85 billion senior secured credit facilities at Charter Operating in addition
to securities at various other Charter subsidiaries. In conjunction with the
bank refinancing, the Company today announced (i) a $100 million tender offer
for certain notes outstanding at Charter Communications Holdings, LLC (“Charter
Holdings”), (ii) that CCO Holdings has called for redemption $550 million of CCO
Holdings’ Senior Floating Rate Notes due 2010 at 102%, and (iii) that Charter
Holdings has called for redemption Charter Holdings’
$187 million aggregate principal amount 8.625% Senior Notes due 2009. With
the
completion of these transactions, Charter expects to have adequate liquidity
to
fund its operations and service its debt through 2008.
About
Charter Communications
Charter
Communications, Inc. is a leading broadband communications company and the
third-largest publicly traded cable operator in the United States. Charter
provides a full range of advanced broadband services, including advanced Charter
Digital® video entertainment programming, Charter High-Speed™ Internet access
service, and Charter Telephone™ services. Charter Business™ similarly provides
scalable, tailored and cost-effective broadband communications solutions to
business organizations, such as business-to-business Internet access, data
networking, video and music entertainment services and business telephone.
Charter's advertising sales and production services are sold under the Charter
Media® brand. More information about Charter can be found at
www.charter.com.
#
#
#
Contact:
Mary
Jo
Moehle
314/543-2397
Cautionary
Statement Regarding Forward-Looking Statements:
This
release includes forward-looking statements within the meaning of Section 27A
of
the Securities Act of 1933, as amended (the "Securities Act") and Section 21E
of
the Securities Exchange Act of 1934, as amended (the "Exchange Act"), regarding,
among other things, our plans, strategies and prospects, both business and
financial. Charter will not undertake to revise forward-looking projections
to
reflect events after this date. Although we believe that our plans, intentions
and expectations reflected in or suggested by these forward-looking statements
are reasonable, we cannot assure you that we will achieve or realize these
plans, intentions or expectations. Forward-looking statements are inherently
subject to risks, uncertainties and assumptions. Many of the forward-looking
statements contained in this release may be identified by the use of
forward-looking words such as "believe," "expect," "anticipate," "should,"
"planned," "will," "may," "intend," "estimated," "aim," "on track," "target,"
"opportunity" and "potential," among others. Important factors that could cause
actual results to differ materially from the forward-looking statements we
make
in this release are set forth in reports or documents that we file from time
to
time with the SEC, and include, but are not limited to:
| · |
the
availability, in general, of funds to meet interest payment obligations
under our debt and to fund our operations and necessary capital
expenditures, either through cash flows from operating activities,
further
borrowings or other sources and, in particular, our ability to be
able to
provide under the applicable debt instruments such funds (by dividend,
investment or otherwise) to the applicable obligor of such
debt;
|
| · |
our
ability to comply with all covenants in our indentures and credit
facilities, any violation of which could trigger a default of our
other
obligations under cross-default provisions;
|
| · |
our
ability to pay or refinance debt prior to or when it becomes due
and/or to
take advantage of market opportunities and market windows to refinance
that debt through new issuances, exchange offers or otherwise, including
restructuring our balance sheet and leverage
position;
|
| · |
competition
from other video programming distributors, including incumbent telephone
companies, direct broadcast satellite operators, wireless broadband
providers and DSL providers;
|
| · |
unforeseen
difficulties we may encounter in our continued introduction of our
telephone services such as our ability to meet heightened customer
expectations for the reliability of voice services compared to other
services we provide and our ability to meet heightened demand for
installations and customer service;
|
| · |
our
ability to sustain and grow revenues and cash flows from operating
activities by offering video, high-speed Internet, telephone and
other
services and to maintain and grow a stable customer base, particularly
in
the face of increasingly aggressive competition from other service
providers;
|
| · |
our
ability to obtain programming at reasonable prices or to pass programming
cost increases on to our customers;
|
| · |
general
business conditions, economic uncertainty or slowdown;
and
|
| · |
the
effects of governmental regulation, including but not limited to
local
franchise authorities, on our business.
|
All
forward-looking statements attributable to us or any person acting on our behalf
are expressly qualified in their entirety by this cautionary statement. We
are
under no duty or obligation to update any of the forward-looking statements
after the date of this release.
#
#
#
Exhibit
99.2
NEWS
Charter
Announces $100 Million Tender Offer for Debt Securities
ST.
LOUIS--March 6, 2007--Charter Communications, Inc. (NASDAQ:CHTR) announced
today
that its indirect subsidiary, Charter Communications Holdings, LLC (“Charter
Holdings”), has commenced a cash tender offer (the “Tender Offer”) for certain
of its outstanding senior notes listed in the table below (the “Notes”). Charter
Holdings is offering to purchase an amount of its outstanding Notes such that
the amount Charter Holdings would be required to pay for the purchase of the
Notes in total (including accrued and unpaid interest) in the Tender Offer
shall
not exceed $100 million (the “Maximum Payment Amount”), in accordance with the
terms and conditions described in the Offer to Purchase dated March 6, 2007.
The
Tender Offer will expire at 5:00 PM Eastern Daylight Time (EDT), on Tuesday,
April 3, 2007, unless extended or earlier terminated (the “Expiration
Time”).
The
total
consideration payable for the Notes is a fixed price. All Notes tendered will
be
accepted for purchase in a specified priority. The following table includes
the
series of Notes subject to the Tender Offer, the acceptance priority of each
series, and the consideration for each series:
|
CUSIP
Number(s)
|
Title
of Security
|
Principal
Amount Outstanding(1)
|
Acceptance
Priority
Level
|
Tender
Offer Consideration(2)
|
Early
Tender Premium(2)
|
Total
Consideration(2)
|
|||||||||||||
|
16117PAK6
|
10.00%
Senior Notes due 2009
|
$
|
104,840,000
|
1
|
$
|
998.75
|
$
|
15.00
|
$
|
1,013.75
|
|||||||||
|
16117PAT7
|
10.75%
Senior Notes due 2009
|
$
|
70,713,000
|
1
|
$
|
1,013.75
|
$
|
15.00
|
$
|
1,028.75
|
|||||||||
|
16117PAZ3
16117PAY6
|
9.625%
Senior Notes due 2009
|
$
|
52,120,145
|
1
|
$
|
993.75
|
$
|
15.00
|
$
|
1,008.75
|
|||||||||
|
16117PAL4
|
10.25%
Senior Notes due 2010
|
$
|
32,255,000
|
2
|
$
|
996.25
|
$
|
15.00
|
$
|
1,011.25
|
|||||||||
|
16117PAM2
|
11.75%
Senior Discount Notes due 2010
|
$
|
21,208,000
|
2
|
$
|
1,002.50
|
$
|
15.00
|
$
|
1,017.50
|
|||||||||
|
16117PAV2
|
11.125%
Senior Notes due 2011
|
$
|
52,086,000
|
3
|
$
|
990.00
|
$
|
15.00
|
$
|
1,005.00
|
|||||||||
|
16117PAW0
|
13.50%
Senior Discount Notes due 2011
|
$
|
61,815,000
|
3
|
$
|
1,028.75
|
$
|
15.00
|
$
|
1,043.75
|
|||||||||
|
16117PAF7
|
9.920%
Senior Discount Notes due 2011
|
$
|
62,995,713
|
3
|
$
|
987.50
|
$
|
15.00
|
$
|
1,002.50
|
|||||||||
|
16117PBB5
|
10.00%
Senior Notes due 2011
|
$
|
71,430,000
|
3
|
$
|
987.50
|
$
|
15.00
|
$
|
1,002.50
|
|||||||||
|
16117PBD1
|
11.75%
Senior Discount Notes due 2011
|
$
|
54,567,000
|
3
|
$
|
997.50
|
$
|
15.00
|
$
|
1,012.50
|
|||||||||
|
16117PBH2
|
12.125%
Senior Discount Notes due 2012
|
$
|
91,012,000
|
3
|
$
|
997.50
|
$
|
15.00
|
$
|
1,012.50
|
|||||||||
____________________________
(1) Aggregate
principal amount outstanding as of March 5, 2007.
(2) Per
$1,000 principal amount of Notes that are accepted for purchase
Holders
tendering their Notes at or prior to 5:00 PM ET, on Monday, March 19, 2007,
unless extended or earlier terminated (the “Early Tender Time”), will receive
the Total Consideration, which includes an Early Tender Premium, in each case
as
set forth in the preceding table. Holders that tender their Notes after the
Early Tender Time but at or prior to the Expiration Time will receive the Tender
Offer Consideration, which is the Total Consideration less the Early Tender
Premium. In addition, in all cases, holders of Notes that are accepted for
purchase will receive accrued and unpaid interest from the last interest payment
date for such series of Notes to, but not including, the date the Notes are
purchased.
If
Notes
are validly tendered and not withdrawn at the Expiration Time, such that the
amount Charter Holdings would be required to pay for the purchase of such Notes,
together with accrued and unpaid interest, exceeds the Maximum Payment Amount,
Charter Holdings will (subject to the terms and conditions of the Tender Offer)
accept Notes for purchase in accordance with the “Acceptance Priority Level” set
forth in the preceding table. If the Maximum Payment Amount is adequate to
purchase some but not all tendered Notes having a particular Acceptance Priority
Level, Charter Holdings will prorate the amount of Notes having such Acceptance
Priority Level to be purchased. Except as set forth in the Offer to Purchase
or
as required by applicable law, Notes tendered prior to 5:00 PM EDT, on Monday,
March 19, 2007 (the “Withdrawal Deadline”), may be withdrawn at or
prior to the Withdrawal Deadline, and Notes tendered after the Withdrawal
Deadline but before the Expiration Time may not be withdrawn except to the
extent required by law. Charter Holdings may increase the Maximum Payment Amount
for the Notes at its discretion without extending the Withdrawal
Deadline.
The
Tender Offer is conditioned on the satisfaction of certain limited conditions.
If any of the conditions are not satisfied, Charter Holdings is not obligated
to
accept for payment, purchase, or pay for, and may delay the acceptance for
payment of, any tendered Notes, in each event, subject to applicable laws,
and
may terminate the Tender Offer.
Citigroup
Corporate and Investment Banking is the Dealer Manager for the Tender Offer.
Global Bondholder Services Corporation is the Information Agent and
Depositary.
This press release is neither an offer to purchase nor a solicitation of
an
offer to sell the Notes. The offer is made only by an Offer to Purchase dated
March 6, 2007, and the information in this news release is qualified by
reference to the Offer to Purchase. Persons with questions regarding the
offer
should contact the Dealer Manager at (212) 723-6106 or toll-free at (800)
558-3745, or the Information Agent at (212) 430-3774 or toll-free at (866)
294-2200.
About
Charter Communications
Charter
Communications, Inc. is a leading broadband communications company and the
third-largest publicly traded cable operator in the United States. Charter
provides a full range of advanced broadband services, including advanced Charter
Digital® video entertainment programming, Charter High-Speed™ Internet access
service, and Charter Telephone™ services. Charter Business™ similarly provides
scalable, tailored and cost-effective broadband communications solutions to
business organizations, such as business-to-business Internet access, data
networking, video and music entertainment services and business telephone.
Charter's advertising sales and production services are sold under the Charter
Media® brand. More information about Charter can be found at
www.charter.com.
#
#
#
Contact:
Mary
Jo
Moehle
314/543-2397
Cautionary
Statement Regarding Forward-Looking Statements:
This
release includes forward-looking statements within the meaning of Section 27A
of
the Securities Act of 1933, as amended (the "Securities Act") and Section 21E
of
the Securities Exchange Act of 1934, as amended (the "Exchange Act"), regarding,
among other things, our plans, strategies and prospects, both business and
financial. Charter will not undertake to revise forward-looking projections
to
reflect events after this date. Although we believe that our plans, intentions
and expectations reflected in or suggested by these forward-looking statements
are reasonable, we cannot assure you that we will achieve or realize these
plans, intentions or expectations. Forward-looking statements are inherently
subject to risks, uncertainties and assumptions. Many of the forward-looking
statements contained in this release may be identified by the use of
forward-looking words such as "believe," "expect," "anticipate," "should,"
"planned," "will," "may," "intend," "estimated," "aim," "on track," "target,"
"opportunity" and "potential," among others. Important factors that could cause
actual results to differ materially from the forward-looking statements we
make
in this release are set forth in reports or documents that we file from time
to
time with the SEC, and include, but are not limited to:
| · |
the
availability, in general, of funds to meet interest payment obligations
under our debt and to fund our operations and necessary capital
expenditures, either through cash flows from operating activities,
further
borrowings or other sources and, in particular, our ability to be
able to
provide under the applicable debt instruments such funds (by dividend,
investment or otherwise) to the applicable obligor of such
debt;
|
| · | our ability to comply with all covenants in our indentures and credit facilities, any violation of |
|
which
could trigger a default of our other obligations under cross-default
provisions;
|
| · |
our
ability to pay or refinance debt prior to or when it becomes due
and/or to
take advantage of market opportunities and market windows to refinance
that debt through new issuances, exchange offers or otherwise,
including
restructuring our balance sheet and leverage
position;
|
| · |
competition
from other video programming distributors, including incumbent
telephone
companies, direct broadcast satellite operators, wireless broadband
providers and DSL providers;
|
| · |
unforeseen
difficulties we may encounter in our continued introduction of
our
telephone services such as our ability to meet heightened customer
expectations for the reliability of voice services compared to
other
services we provide and our ability to meet heightened demand for
installations and customer service;
|
| · |
our
ability to sustain and grow revenues and cash flows from operating
activities by offering video, high-speed Internet, telephone and
other
services and to maintain and grow a stable customer base, particularly
in
the face of increasingly aggressive competition from other service
providers;
|
| · |
our
ability to obtain programming at reasonable prices or to pass programming
cost increases on to our customers;
|
| · |
general
business conditions, economic uncertainty or slowdown;
and
|
| · |
the
effects of governmental regulation, including but not limited to
local
franchise authorities, on our business.
|
All
forward-looking statements attributable to us or any person acting on our behalf
are expressly qualified in their entirety by this cautionary statement. We
are
under no duty or obligation to update any of the forward-looking statements
after the date of this release.
#
#
#