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CREDIT AGREEMENT
THIS CREDIT AGREEMENT is dated as of ___________, 1997 and is
between TELE-COMMUNICATIONS, INC., a Delaware corporation ("TCI"), and TCI
VENTURES GROUP, LLC, a Delaware limited liability company (the "Company").
RECITALS:
A. The Company was formed on June 26, 1997 for the
purpose of holding the assets that will comprise the Ventures Group businesses
of TCI. The Company is a wholly owned indirect subsidiary of TCI.
B. TCI has offered to issue shares of
Tele-Communications, Inc. Series A TCI Ventures Group Common Stock, $1.00 par
value per share (the "Series A Ventures Stock") in exchange for up to
188,661,300 shares of Tele-Communications, Inc. Series A TCI Group Common
Stock, $1.00 par value per share, and shares of Tele-Communications, Inc.
Series B TCI Ventures Group Common Stock, $1.00 par value per share (the
"Series B Ventures Stock") in exchange for up to 16,266,400 shares of Tele-
Communications, Inc. Series B TCI Group Common Stock, $1.00 par value per share
(collectively, the "Exchange Offers"). As a result of the Exchange Offers, the
Series A Ventures Stock and the Series B Ventures Stock will be intended to
reflect the separate performance of the TCI Ventures Group, which includes
TCI's principal international assets and substantially all of TCI's non-cable
and non-programming domestic assets.
C. To provide the Company with a source of financing
after the Exchange Offers, the Company has requested TCI to establish a
revolving credit facility pursuant to which the Company may obtain loans in an
aggregate principal amount outstanding at any one time not exceeding
$500,000,000 (the "Revolving Loans").
NOW, THEREFORE, in consideration of the mutual covenants and
agreements set forth herein and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereby
agree as follows:
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ARTICLE I.
CERTAIN DEFINITIONS
"Business Day" shall mean any day (other than a Saturday,
Sunday or legal holiday in the State of Colorado or in the State of New York)
on which banks are open for business in Denver, Colorado and New York, New
York.
"Commitment Fee" shall have the meaning set forth in section
2.05.
"Company" shall have the meaning set forth in the recitals.
"Default" shall mean an event that with the giving of notice
or the passage of time (or both) would constitute an Event of Default.
"Event of Default or Events of Default" shall have the
meanings set forth in Article V.
"Exchange Offers" shall have the meaning set forth in the
recitals.
"Expiration Date" shall mean the date on which the Exchange
Offers expire.
"Indebtedness" shall mean, with respect to any Person, without
duplication: (i) all obligations of such Person for borrowed money, (ii) all
obligations of such Person evidenced by bonds, notes, debentures or similar
instruments, (iii) all obligations of such Person upon which interest charges
are customarily paid, (iv) all obligations of such Person issued or assumed as
the deferred purchase price of property or services (other than accounts
payable to suppliers incurred in the ordinary course of business), and (v) all
obligations of such Person in respect of letters of credit and bankers
acceptances. The term "Indebtedness" shall not include the obligation of any
Person guaranteeing the Indebtedness of any other Person.
"Interest Payment Date" shall have the meaning set forth in
section 2.02(b).
"Maturity Date" shall mean _________, 2002.
"Maximum Rate" shall have the meaning set forth in section
2.02(d).
"Note or Notes" shall mean the promissory note or notes
executed pursuant to the Revolving Loans by the Company as maker in favor of
TCI and in substantially the form of Exhibit A.
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"Person" shall mean any natural person, corporation, limited
liability company, partnership, business trust, joint stock company, trust,
unincorporated association, joint venture, governmental authority or any other
entity, whether acting in an individual, fiduciary or other capacity.
"Prepayment Notice" shall have the meaning set forth in
Section 2.03(b).
"Revolving Loan Commitment" shall mean $500,000,000 principal
amount, as such amount may be reduced from time to time pursuant to Section
2.04.
"Revolving Loan Commitment Termination Date" shall mean the
date on which the commitment of TCI to make Revolving Loans under this Credit
Agreement shall terminate in accordance with Section 2.04.
"Revolving Loans" shall have the meaning set forth in the
recitals.
"Series A Ventures Stock" shall have the meaning set forth in
the recitals.
"Series B Ventures Stock" shall have the meaning set forth in
the recitals.
"Subsidiary" shall mean (with respect to any Person) any
corporation, limited liability company, partnership or joint venture, whether
now existing or hereafter organized or acquired in which: (i) (in the case of
a corporation) securities having a majority of the voting power in the election
of directors (excluding for these purposes securities that entitle the holder
to vote only upon the occurrence of a contingency) are at the time owned,
directly or indirectly, by such Person and/or one or more of its Subsidiaries,
or (ii) (in the case of a limited liability company, partnership or joint
venture): (y) the managing general partner is such Person or one or more of its
Subsidiaries, or (z) a majority of the ownership interests are owned, directly
or indirectly, by such Person or one or more of its Subsidiaries.
"TCI" shall have the meaning set forth in the recitals.
"Unused Portion of the Revolving Loan Commitment" shall mean,
as of any date, the Revolving Loan Commitment as of such date less the
aggregate unpaid principal amount of all Revolving Loans outstanding as of such
date.
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ARTICLE II.
THE REVOLVING LOANS
SECTION 2.01 Revolving Loans.
(a) Upon the terms and subject to the conditions set
forth in this Credit Agreement, TCI agrees to originate the Revolving Loans on
a revolving credit basis to the Company, from time to time, from the Expiration
Date until the Revolving Loan Commitment Termination Date, at such time and in
such amounts as the Company shall request, in an aggregate principal amount at
any time outstanding not in excess of the Revolving Loan Commitment. Upon the
terms and subject to the conditions set forth in this Credit Agreement, the
Company may borrow, repay and reborrow funds from TCI.
(b) To effect a borrowing under the Revolving Loan
Commitment, the Company shall give TCI irrevocable written notice not less than
three (3) Business Days before a requested borrowing. Such notice shall in
each case be signed by an authorized officer and shall refer to this Credit
Agreement and specify: (i) the amount of the requested borrowing under this
Credit Agreement, (ii) the date (which shall be a Business Day) on which the
Company is to receive the proceeds of such borrowing, and (iii) that all
conditions to such borrowing set forth in Article IV of this Credit Agreement
have been satisfied. The Company shall be deemed to be making, as of the date
of the delivery of the borrowing notice, the representations and warranties
contained in Article III of this Credit Agreement by the act of delivering such
borrowing notice to TCI.
(c) The Revolving Loans made by TCI shall be evidenced by
the Notes (which shall be in the form of Exhibit A) duly executed on behalf of
the Company. TCI shall endorse on the schedule attached to the Notes, or
otherwise record in its internal records, an appropriate notation evidencing
the date and amount of each Revolving Loan, each payment and prepayment of the
principal amount of any Revolving Loan and other information provided for on
such schedule; provided, however, that the failure of TCI to make such a
notation or any error in such notation shall not affect the obligation of the
Company to repay the Revolving Loans in accordance with the terms of this
Credit Agreement and the Notes.
SECTION 2.02 Interest on Revolving Loans.
(a) Subject to Section 2.02(d) below, the principal
amount of each Revolving Loan shall bear interest at a rate per annum (computed
on the basis of the actual number of days elapsed over a year of 360 days)
equal to The Bank of New York's prime rate (as in effect from time to time),
plus 1% per annum.
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(b) Interest on each Revolving Loan shall be due and
payable on a quarterly basis, commencing December 31, 1997, and each March 31,
June 30, September 30 and December 31 thereafter (each an "Interest Payment
Date").
(c) If the Company shall default in the payment of the
principal of, or interest on any Revolving Loan, or on any other amount
becoming due hereunder, by reason of an Interest Payment Date, the Maturity
Date or acceleration, the Company shall, on demand from time to time from TCI,
pay interest, to the extent permitted by law, on such defaulted amount up to
the date of actual payment (after as well as before judgment) at a rate per
annum (computed on the basis of the actual number of days elapsed over a year
of 360 days) equal to the interest rate then in effect pursuant to Section
2.02(a) above, plus 2%.
(d) All agreements between the Company and TCI are
expressly limited so that in no contingency or event whatsoever shall the
interest paid or agreed to be paid to TCI for the use, forbearance, or
detention of the indebtedness evidenced by the Notes exceed the maximum rate
permissible under applicable law (the "Maximum Rate"). If from any
circumstance TCI should ever receive an amount which would represent interest
in excess of the Maximum Rate, such amount as would be excessive interest shall
be applied to the reduction of the principal amount owing under the Notes and
not to the payment of interest. In determining whether the interest paid or
payable, under any contingency, exceeds such Maximum Rate, the Company and TCI
shall to the maximum extent permitted by applicable law: (i) characterize any
non-principal payment as an expense, fee, or premium rather than as interest;
(ii) exclude voluntary prepayments and the effects thereof; (iii) amortize,
prorate, allocate, and spread the total amount of interest throughout the full
term of the Notes so that the actual rate of such interest does not exceed such
Maximum Rate; or (iv) allocate interest between portions of the debt evidenced
hereby so that no portion of such debt shall bear interest at a rate greater
than such Maximum Rate. For purposes of the Notes, the term "applicable law"
shall mean that law in effect from time to time and applicable to the credit
transaction between the Company and TCI which lawfully permits the charging and
collection of the highest permissible, lawful, non-usurious rate of interest on
such transaction and the Notes, including laws of the State of Colorado and, to
the extent controlling, laws of the United States of America.
SECTION 2.03 Payment; Maturity; Prepayment; Indemnity.
(a) Unless accelerated hereunder, the principal amount of
each Revolving Loan, together with all interest accrued and unpaid thereon,
shall be due and payable on the Maturity Date.
(b) The Company shall have the right, at any time and
from time to time, to prepay any Revolving Loan, in whole or in part, without
premium or penalty, upon giving written notice (a "Prepayment Notice") to TCI
at least three (3) Business Days prior to such prepayment. Each Prepayment
Notice shall specify the principal amount of each Revolving Loan (or portion
thereof) to be prepaid and the date of prepayment and shall commit the Company
to prepay such
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borrowing on the date specified therein. All prepayments shall be accompanied
by accrued and unpaid interest on the principal amount being prepaid to the
date of prepayment.
SECTION 2.04 Reduction and Termination of Revolving Loan Commitment.
(a) The Revolving Loan Commitment shall be immediately
and irrevocably reduced on a dollar-for-dollar basis by up to $300,000,000 if
and to the extent the aggregate amount of any additional capital that TCI
Telephony Services, Inc., a Delaware corporation and an indirect wholly owned
subsidiary of TCI, contributes or is required to contribute to two limited
partnerships, Sprint Spectrum Holding Company, L.P. and MinorCo, L.P., does not
exceed $300,000,000.
(b) Upon at least three (3) Business Days prior
irrevocable written notice to TCI, the Company may at any time in whole or,
from time to time, in part permanently reduce the amount of the Revolving Loan
Commitment.
(c) The Revolving Loan Commitment shall terminate on the
earlier to occur of: (i) the Maturity Date, or (ii) an Event of Default
(collectively, the "Revolving Loan Commitment Termination Date").
SECTION 2.05 Facility Fees. As additional compensation to
TCI in connection with this Credit Agreement and the Revolving Loans, the
Company shall pay to TCI a commitment fee (the "Commitment Fee") equal to .375%
per annum on the average daily Unused Portion of the Revolving Loan Commitment,
for the period commencing on the Expiration Date through and including the
Revolving Loan Commitment Termination Date. The Commitment Fee shall be
computed on the basis of a 360-day year for actual days elapsed and shall be
payable quarterly, in arrears, commencing December 31, 1997, each March 31,
June 30, September 30, and December 31 thereafter, and on the Revolving Loan
Commitment Termination Date.
SECTION 2.06 No Security. The Loans made by TCI under this
Credit Agreement shall be unsecured.
ARTICLE III.
REPRESENTATIONS AND WARRANTIES
SECTION 3.01 Mutual Representations and Warranties. As an
inducement to enter into this Credit Agreement, each party represents to and
agrees with the other that:
(a) with respect to TCI, it is a corporation, and with
respect to the Company, it is a limited liability company, each duly organized,
validly existing and in good standing under the laws of the State of Delaware
and each has all requisite corporate power to own, lease and
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operate its properties, to carry on its business as presently conducted and to
carry out the transactions contemplated by this Credit Agreement.
(b) it has duly and validly taken all corporate action
necessary to authorize the execution, delivery and performance of this Credit
Agreement (and, with respect to the Company, the Notes).
(c) this Credit Agreement (and, with respect to the
Company, the Notes) has been duly executed and delivered by it and constitutes
its legal, valid and binding obligation enforceable in accordance with its
terms.
(d) none of the execution and delivery of this Credit
Agreement (and, with respect to the Company, the Notes) or the compliance with
any of the provisions of this Credit Agreement (and, with respect to the
Company, the Notes) will (i) conflict with or result in a breach of any
provision of (y) with respect to TCI, its corporate charter or by-laws, or (z)
with respect to the Company, its certificate of formation or limited liability
agreement, (ii) breach, violate or result in a default under any of the terms
of any agreement or other instrument or obligation (including, without
limitation, those in respect of Indebtedness) to which it or any of its
Subsidiaries is a party or by which it or any of its Subsidiaries' properties
or assets may be bound, or (iii) violate any order, writ, injunction, decree,
statute, rule or regulation applicable to it or any of its Subsidiaries or
affecting any of its or any of its Subsidiaries' properties or assets.
ARTICLE IV.
CONDITIONS OF LENDING
SECTION 4.01 Conditions Precedent. The obligation of TCI to
make a Revolving Loan hereunder on any date shall be subject to the
satisfaction of TCI with the fulfillment of the following conditions precedent:
(a) TCI shall have received a notice of such borrowing as
required by Section 2.01(b).
(b) The representations and warranties of the Company set
forth in Article III shall be true and correct with the same effect as though
made on and as of such date.
(c) The Company shall be in compliance with all of the
terms and conditions of this Credit Agreement (including the Notes), and at the
time of, and immediately after such borrowing no Default or Event of Default
shall have occurred and be continuing.
(d) TCI shall have received from the Company such
additional information and materials as TCI shall have reasonably requested,
and all proceedings and documents in
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connection with any Revolving Loan shall be satisfactory to counsel (which may
be in-house counsel) for TCI.
ARTICLE V.
DEFAULTS
If any one or more of the following events ("Events of
Default") shall occur and be continuing, TCI may by notice to the Company
terminate the Revolving Loan Commitment and/or declare the entire unpaid
balance of the principal of, and interest on, any outstanding Revolving Loans to
be forthwith due and payable, and thereupon the same and any unpaid Commitment
Fees and all other liabilities of the Company accrued hereunder shall
immediately become due and payable without further act, except that in the case
of the occurrence of an Event of Default described in Section 5.05, the
Revolving Loan Commitment shall automatically terminate and the unpaid balance
of the principal of, and interest on, all of the outstanding Revolving Loans and
any unpaid Commitment Fees and all other liabilities of the Company accrued
hereunder shall automatically become due and payable without any requirement of
notice. Except for the notice provided for in the immediately preceding
sentence, the Company hereby expressly waives any presentment, demand, protest,
notice of protest or other notice of any kind.
SECTION 5.01 Failure to Pay.
(a) Failure by the Company to make any payment of
principal or interest on the Revolving Loans when due, whether on an Interest
Payment Date, the Maturity Date or a date fixed for prepayment or otherwise;
provided, however, that no event of default shall be deemed to occur upon a
failure by the Company to pay an optional prepayment under section 2.03(b); or
(b) Failure by the Company to pay the Commitment Fee in
full within five (5) days of the date such payment is due.
SECTION 5.02 Breach of Agreement. Failure by the Company to
perform or observe any other term, covenant, or condition of this Credit
Agreement which shall remain unremedied for a period of thirty (30) days after
TCI shall have notified the Company of such failure.
SECTION 5.03 Breach of Debt Instrument. A default by the
Company or any of its Subsidiaries in the payment of, principal of, or interest
on any Indebtedness in excess of $5,000,000, or the failure to observe or
perform any other agreement or condition relating to any such Indebtedness, or
the occurrence or failure to occur of any other event or condition, so that, as
a result of such default, failure to observe or perform, occurrence or failure
to occur, such Indebtedness is accelerated or may be declared due and payable
prior to the date on which such Indebtedness would otherwise become due and
payable, unless prior to the exercise by TCI of any
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of its remedies hereunder (including acceleration of the maturity of the
Revolving Loans): (i) such default, failure to observe or perform, occurrence
or failure to occur has been cured in full or unconditionally waived with the
result that the payment of such Indebtedness may not thereafter be accelerated
on the basis thereof, or (ii) such declaration of acceleration has been
rescinded or annulled on terms satisfactory to TCI, or (iii) the Company or
such Subsidiary, as the case may be, shall have contested such declaration of
acceleration in good faith and by appropriate proceedings and have obtained and
thereafter maintained the stay of such acceleration and all consequences
thereof that would have a material adverse effect on the Company and its
Subsidiaries (considered as a whole) or the rights of TCI hereunder.
SECTION 5.04 Breach of Representation. Any representation or
warranty made by the Company to TCI in this Credit Agreement, or in connection
with the making of any Revolving Loan, or in any certificate or other document
furnished by the Company at any time under or in connection with this Credit
Agreement, shall prove to have been false in any material respect when made.
SECTION 5.05 Bankruptcy, Etc. The Company shall make an
assignment for the benefit of creditors, file a petition in bankruptcy, be
adjudicated insolvent or bankrupt, suffer an order for relief under any federal
bankruptcy law, petition or apply to any tribunal for the appointment of a
custodian, receiver or any trustee for it or a substantial part of its assets,
or shall commence any proceeding under any bankruptcy, reorganization,
arrangement, readjustment of debt, dissolution or liquidation law or statute of
any jurisdiction, whether now or hereafter in effect; or if there shall have
been filed any such petition or application, or any such proceeding shall have
been commenced against it, which remains undismissed for a period of thirty
(30) days or more; or the Company, by any act or omission, shall indicate its
consent to, approval of, or acquiescence in any such petition, application or
proceeding or the appointment of a custodian, receiver or any trustee for it or
any substantial part of any of its properties, or shall suffer any
custodianship, receivership or trusteeship to continue undischarged for a
period of thirty (30) days or more.
SECTION 5.06 Judgments, Etc. Any judgment against the
Company or any of its Subsidiaries for any amount in excess of $5,000,000 shall
remain unpaid, unstayed on appeal, undischarged, unbonded or undismissed for a
period of thirty (30) days or more.
SECTION 5.07 Material Adverse Changes. A material adverse
change in the business, assets, operations, prospects or condition (financial
or otherwise) of the Company and any of its Subsidiaries, taken as a whole
shall have occurred.
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ARTICLE VI.
MISCELLANEOUS
SECTION 6.01 Severability. If any term, provision, covenant
or restriction of this Credit Agreement is held by a court of competent
jurisdiction to be invalid, void or unenforceable, the remainder of the terms,
provisions, covenants and restrictions set forth herein shall remain in full
force and effect and shall in no way be affected, impaired or invalidated. It
is hereby stipulated and declared to be the intention of the parties that they
would have executed the remaining terms, provisions, covenants and restrictions
without including any of such which may be hereafter declared invalid, void or
unenforceable. In the event that any such term, provision, covenant or
restriction is so held to be invalid, void or unenforceable, the parties hereto
shall use their best efforts to find and employ an alternative means to achieve
the same or substantially the same result as that contemplated by such term,
provision or restriction.
SECTION 6.02 Assignment. This Credit Agreement shall not be
assignable, in whole or in part, directly or indirectly, by operation of law or
otherwise, by the Company without the prior written consent of TCI, and any
attempt by the Company to assign any rights or obligations arising under this
Credit Agreement without such consent shall be void. TCI may assign the Notes
in whole or in part. TCI may assign this Credit Agreement with the prior
written consent of the Company, which consent shall not be unreasonably
withheld. The provisions of this Credit Agreement shall be binding upon, inure
to the benefit of, and be enforceable by TCI and the Company and their
respective successors (subject, as to the Company, to the first sentence above)
and permitted assigns.
SECTION 6.03 Further Assurances. Subject to the provisions
hereof, each of TCI and the Company shall make, execute, acknowledge and
deliver such other instruments and documents, and take all such other actions
as may be reasonably required in order to effectuate the purposes of this
Credit Agreement and to consummate the transactions contemplated hereby.
Subject to the provisions hereof, each of TCI and the Company shall, in
connection with entering into this Credit Agreement, performing its obligations
hereunder and taking any and all actions relating thereto, comply with all
applicable laws, regulations, orders and decrees, obtain all required consents
and approvals and make all required filings with any governmental agency, other
regulatory or administrative agency, commission or similar authority and
promptly provide the other with all such information as the other may
reasonably request in order to be able to comply with the provisions of this
sentence.
SECTION 6.04 Parties in Interest. Nothing in this Credit
Agreement expressed or implied is intended or shall be construed to confer any
right or benefit upon any person, firm or corporation other than TCI and the
Company and their respective successors (subject, as to the Company, to the
first sentence of Section 6.02) and permitted assigns.
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SECTION 6.05 Waivers, Etc. No failure or delay on the part
of TCI in exercising any power or right hereunder shall operate as a waiver
thereof, nor shall any single or partial exercise of any such right or power,
or any abandonment or discontinuance of steps to enforce such a right or power,
preclude any other or further exercise thereof or the exercise of any other
right or power. No modification or waiver of any provision of this Credit
Agreement nor consent to any departure by TCI therefrom shall in any event be
effective unless the same shall be in writing, and then such waiver or consent
shall be effective only in the specific instance and for the purpose for which
given.
SECTION 6.06 Setoff. All payments to be made by the Company
under this Credit Agreement shall be made without setoff, counterclaim or
withholding, all of which are expressly waived.
SECTION 6.07 Confidentiality. Subject to any contrary
requirement of law and the right of each party to enforce its rights hereunder
in any legal action, each party shall keep strictly confidential and shall
cause its employees and agents to keep strictly confidential, any information
which it or any of its agents or employees may acquire pursuant to, or in the
course of performing its obligations under, any provision of this Credit
Agreement; provided, however, that such obligation to maintain confidentiality
shall not apply to information which (x) at the time of disclosure was in the
public domain not as a result of acts by the receiving party or (y) was in the
possession of the receiving party at the time of disclosure.
SECTION 6.08 Entire Credit Agreement. This Credit Agreement
(including the Exhibit hereto) and the Notes contain the entire understanding
of the parties with respect to the transactions contemplated hereby.
SECTION 6.09 Headings. Descriptive headings are for
convenience only and shall not control or affect the meaning or construction of
any provision of this Credit Agreement.
SECTION 6.10 Counterparts. For the convenience of the
parties, any number of counterparts of this Credit Agreement may be executed by
the parties hereto, and each such executed counterpart shall be, and shall be
deemed to be, an original instrument.
SECTION 6.11 Notices. All notices and other communications
provided for herein or made hereunder shall be in writing and shall be hand
delivered, telecopied or mailed to the intended recipient at the telephone
number or address specified below:
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The Company: TCI Ventures Group, LLC
0000 XXX Xxxxxxx
Xxxxxxxxx, Xxxxxxxx 00000
Attn: President
Facsimile: (000) 000-0000
With a copy similarly addressed: Attention: Legal Department
TCI:
Tele-Communications, Inc.
0000 XXX Xxxxxxx
Xxxxxxxxx, Xxxxxxxx 00000
Attn: Treasurer
Facsimile: (000) 000-0000
With a copy similarly addressed: Attention: Legal Department
or to such other telephone number or address as shall be designated by such
party in a notice to the other party. All notices and other communications
hereunder shall be deemed delivered and received: (i) in the case of a
telecopy, when transmitted by telecopier, answer back received, (ii) in the
case of personal delivery, when delivered, and (iii) in the case of a mailing,
three (3) Business Days after deposited in the mails (registered or certified
mail, return receipt requested, postage prepaid), in each case given or
addressed as aforesaid. Telephonic notice may be given, provided it is
promptly confirmed by the sender by telecopy as aforesaid.
SECTION 6.13 Governing Law. This Credit Agreement shall be
governed by and construed and enforced in accordance with the laws of the State
of Colorado applicable to contracts made and to be performed therein.
IN WITNESS WHEREOF, TCI and the Company have caused this
Credit Agreement to be duly executed by their respective officers, each of whom
is duly authorized, all as of the day and year first above written.
TELE-COMMUNICATIONS, INC.
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By:
Title:
TCI VENTURES GROUP, LLC
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By:
Title:
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EXHIBIT A
FORM OF REVOLVING LOAN NOTE
$500,000,000 Englewood, Colorado
, 1997
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FOR VALUE RECEIVED, effective as of the date first above
written, the undersigned, TCI VENTURES GROUP, LLC, a Delaware limited liability
(the "Borrower"), hereby promises to pay to the order of TELE-COMMUNICATIONS,
INC., a Delaware corporation, or assigns (the "Lender"), the lesser of the
principal sum of FIVE HUNDRED MILLION DOLLARS ($500,000,000) and the aggregate
unpaid principal amount of the outstanding Revolving Loans to the Borrower from
the Lender pursuant to the Credit Agreement, dated as of ____________, 1997, by
and between the Borrower and the Lender (as the same may be amended or
otherwise modified from time to time, the "Credit Agreement"), in lawful money
of the United States of America, in immediately available funds, and to pay
interest from the date first above specified on the principal amount hereof
from time to time outstanding, in like funds, at said office, at a rate or
rates per annum and payable on the dates determined pursuant to the Credit
Agreement.
The Borrower promises to pay interest, on demand, on any
overdue principal and, to the extent permitted by law, overdue interest from
the due date at a rate or rates determined as set forth in the Credit
Agreement.
The Borrower hereby waives diligence, presentment, demand,
protest and notice (except for the notice required by section 5.01 of the
Credit Agreement) of any kind whatsoever. The nonexercise by the holder of any
of its rights hereunder in any particular instance shall not constitute a
waiver thereof in that or any subsequent instance.
All borrowings evidenced by this Note and all payments and
prepayments of the principal hereof and interest hereon and the respective
dates thereof shall be endorsed by the holder hereof on the schedule attached
hereto and made a part hereof, or otherwise recorded by such holder in its
internal records; provided, however, that the failure of the holder hereof to
make such a notation or any error in such a notation shall not affect the
obligations of the Borrower under this Note.
In the event of any action at law or suit in equity with
respect to this Note, the Borrower, in addition to all other sums which it may
be required to pay hereunder, will pay a reasonable sum for attorneys' fees
incurred by the holder hereof in connection with such action or suit and all
other costs of collection.
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This Note is one of the Notes referred to in the Credit
Agreement and is entitled to the benefits, and is subject to the terms, set
forth therein, which, among other things, contains provisions for the
acceleration of the maturity hereof upon the happening of certain events, for
optional and mandatory prepayment of the principal hereof prior to the maturity
hereof and for the amendment or waiver of certain provisions of the Credit
Agreement, all upon the terms and conditions therein specified. This Note
shall be construed in accordance with and governed by the laws of the State of
Colorado and any applicable laws of the United States of America.
TCI VENTURES GROUP, LLC
By:
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Title:
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SCHEDULE
LOANS AND PAYMENTS
Unpaid Name of
Payments Principal Person
Amount -------- Balance Making
Date of Loan Principal Interest of Note Notation
---- ------- --------- -------- --------- --------
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15
