Demand Promissory Note - MediaOne TWE Holdings Inc. and MediaOne of Colorado Inc.
CONFORMED COPY
MEDIAONE TWE HOLDINGS, INC.
DEMAND PROMISSORY NOTE
DUE AUGUST 19, 2004
U.S.$ 2,100,000,000 New York, New York
August 19, 2002
The undersigned, MEDIAONE TWE HOLDINGS, INC., a corporation
organized under the laws of Delaware (the "Company"), hereby promises to pay to
the order of MEDIAONE OF COLORADO, INC., a corporation organized under the laws
of Colorado ("MediaOne of Colorado" and, together with its successors and
assigns, the "Holder"), the principal sum of Two Billion One Hundred Million
($2,100,000,000) United States Dollars, together with interest from the date
hereof on the unpaid balance thereof at 2.52 % per annum, compounding
semiannually, on the date two business days after receipt of demand for payment
(such date, the "Maturity Date"); provided, however, that notwithstanding the
foregoing if the Company fails to pay the amount due hereunder in full when the
same becomes due at maturity or otherwise, interest will accrue on all amounts
of principal and interest outstanding under this Note at 3 % per annum or, if
less, the maximum amount permitted by applicable law, until all principal and
accrued and unpaid interest are paid in full. All interest shall be computed on
the basis of a 360-day year, in each case for the actual number of days elapsed
in the period during which it accrues.
Payments due hereunder are to be made by wire transfer to such
bank account of the Holder as the Holder may from time to time designate, in
lawful money of the United States of America.
This Note and all amounts outstanding shall immediately and
automatically mature and become due and payable, without presentment, demand,
protest or notice, all of which are hereby waived, in the event that the Company
files a voluntary petition in bankruptcy or an involuntary petition is filed
against it and not dismissed within ten days.
Neither this Note nor any term hereof may be amended or waived
orally or in writing, except that any term of this Note may be amended and the
observance of any term of this Note may be waived (either generally or in a
particular instance and either retroactively or prospectively) with (but only
with) the written consent of the Company and the Holder. This Note shall inure
to the benefit of the Holder of this Note and the Company and their respective
successors and assigns and be binding upon the Holder of this Note and the
Company and their respective successors and assigns.
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CONFORMED COPY
Any notice or communication must be given in writing or
delivered in person, or by overnight courier, or by facsimile addressed as
follows:
if to the Company:
MediaOne TWE Holdings, Inc.
188 Inverness Drive West, 6th Floor
Englewood, CO 80112
Telecopy: (303) 858-5083
Attention: Corporate Secretary
if to the Holder, at the address specified in writing by the
Holder, or at such other address and to the attention of such other person as
the Company or the Holder may designate by written notice to the other. Any such
notice or communication is effective (x) when received, if delivered in person
or by facsimile, or (y) on the next business day, if delivered by overnight
courier.
The Holder may sell, transfer, assign, encumber or otherwise
dispose of this Note in whole or in part, other than as may be prohibited by
applicable law.
The Company shall pay all reasonable out-of-pocket expenses
incurred by the Holder, including fees and disbursements of counsel for the
Holder, in connection with the enforcement of this Note.
This Note is governed by and shall be construed and enforced
in accordance with the laws of the State of New York for contracts made and
wholly performed within that state and shall be construed as if drafted equally
by the Company and the Holder. The Company hereby submits to the exclusive
personal jurisdiction of the courts of the State of New York and the federal
courts of the United States sitting in New York County, and any appellate court
from any such state or federal court.
The Company's obligations under this Note are absolute and
unconditional and shall not be subject to any defense, setoff or counterclaim
that may at any time be available to or be asserted by the Company. The Company
hereby waives, and agrees not to assert, any right to offset or interpose as a
defense or counterclaim any claim against the Holder against its obligations
under this Note.
No failure or delay on the part of the Holder in exercising
any power or right hereunder, and no course of dealing between the Company and
the Holder of this Note, 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.
As used in this Note, the term "business day" means any day
that is not a Saturday, Sunday or other day on which the commercial banks in New
York City, New York are authorized or required by applicable law to remain
closed.
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CONFORMED COPY
Should any provision of this Note be judicially declared to be
invalid, unenforceable or void, such decision will not have the effect of
invalidating or voiding the remainder of this Note, and the parties hereto agree
that the provision of this Note so held to be invalid, unenforceable or void
will be deemed to have been stricken herefrom and the remainder will have the
same force and effectiveness as if such provision had never been included
herein, provided, however the parties hereto shall use their best efforts to
replace the provision so deemed to have been stricken herefrom with a provision
that the parties reasonably believe to be valid and enforceable and which has a
substantially identical economic and legal effect as the provision so deemed to
have been stricken herefrom.
IN WITNESS WHEREOF, the Company has caused this Note to be
made, executed and delivered by its duly authorized officer as of the day and
year first written above.
MEDIAONE TWE HOLDINGS, INC.
By: /s/ Charles H. Noski
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Name: Charles H. Noski
Title: Authorized Signatory
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