<PAGE>
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-Q
[X] QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE
ACT OF 1934
For the quarterly period ended March 31, 2000
OR
[_] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934
For the transition period from __________ to ___________
Commission File Number 0-30218
TIME WARNER TELECOM INC.
------------------------
(Exact name of Registrant as specified in its charter)
State of Delaware 84-1500624
- ------------------------------- ---------------------------------------
(State or other jurisdiction of (I.R.S. Employer Identification Number)
incorporation or organization)
10475 Park Meadows Drive
Littleton, Colorado 80124
- ---------------------------------------- -----------------------
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code: (303) 566-1000
Indicate by check mark whether the Registrant (1) has filed all reports required
to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during
the preceding 12 months (or for such shorter period that the registrant was
required to file such reports) and (2) has been subject to such filing
requirements for the past 90 days. Yes [X] No [_]
The number of shares outstanding of Time Warner Telecom Inc.'s common stock as
of May 2, 2000 was:
Time Warner Telecom Inc. Class A common stock -- 33,029,635 shares
Time Warner Telecom Inc. Class B common stock -- 72,214,285 shares
<PAGE>
TIME WARNER TELECOM INC.
INDEX TO FORM 10-Q
------------------
Page
----
Part I. Financial Information
---------------------
Item 1. Financial Statements:
---------------------
Consolidated and Condensed Balance Sheets at March 31,
2000 and December 31, 1999 1
Consolidated Statements of Operations for the three
months ended March 31, 2000 and 1999 2
Consolidated Statements of Cash Flows for the three
months ended March 31, 2000 and 1999 3
Consolidated Statement of Changes in Stockholders'
Equity for the three months ended March 31, 2000 4
Notes to Consolidated and Condensed Financial Statements 5
Item 2. Management's Discussion and Analysis of Financial
Condition and Results of Operations 11
Part II. Other Information
-----------------
Item 1. Legal Proceedings 21
Item 2. Changes in Securities and Use of Proceeds 21
Item 6. Exhibits and Reports on Form 8-K 21
<PAGE>
TIME WARNER TELECOM INC.
CONSOLIDATED AND CONDENSED BALANCE SHEETS
<TABLE>
<CAPTION>
March 31, December 31,
2000 1999
----------- ------------
(unaudited)
(amounts in thousands, except share amounts)
<S> <C> <C>
ASSETS
Current assets:
Cash and cash equivalents................................................ $ 82,014 90,586
Marketable securities.................................................... 139,525 173,985
Receivables, less allowances of $10,577 and $7,857 ...................... 59,720 52,652
Prepaid expenses......................................................... 3,223 2,938
----------- ------------
Total current assets............................................... 284,482 320,161
----------- ------------
Property, plant and equipment.............................................. 931,099 868,770
Less accumulated depreciation............................................ (212,722) (191,664)
----------- ------------
718,377 677,106
----------- ------------
Intangible and other assets, net of accumulated amortization (note 2)...... 47,879 45,745
----------- ------------
Total assets....................................................... $ 1,050,738 1,043,012
=========== ============
LIABILITIES AND STOCKHOLDERS' EQUITY
Current liabilities:
Accounts payable......................................................... $ 59,075 64,678
Deferred revenue......................................................... 56,192 37,913
Other current liabilities................................................ 80,957 86,752
----------- ------------
Total current liabilities.......................................... 196,224 189,343
----------- ------------
Long-term debt and capital lease obligations (note 3)...................... 403,536 403,627
Deferred income taxes...................................................... 21,414 27,126
Stockholders' equity (note 1):
Preferred stock, $0.01 par value, 20,000,000 shares authorized, no
shares issued and outstanding.......................................... - -
Class A common stock, $0.01 par value, 277,300,000 shares authorized,
24,006,261 and 23,543,422 shares issued and outstanding in 2000
and 1999, respectively................................................. 240 235
Class B common stock, $0.01 par value, 162,500,000 shares authorized,
81,214,285 shares issued and outstanding in 2000 and 1999.............. 812 812
Additional paid-in capital............................................... 569,453 559,950
Accumulated deficit...................................................... (140,941) (138,081)
----------- ------------
Total stockholders' equity......................................... 429,564 422,916
----------- ------------
Total liabilities and stockholders' equity......................... $ 1,050,738 1,043,012
=========== ============
</TABLE>
See accompanying notes.
1
<PAGE>
TIME WARNER TELECOM INC.
CONSOLIDATED STATEMENTS OF OPERATIONS
(Unaudited)
<TABLE>
<CAPTION>
Three Months Ended
March 31,
------------------------------------------------
2000 1999
------------ ------------
(amounts in thousands, except per share amounts)
<S> <C> <C>
Revenue:
Dedicated transport services............................ $ 51,938 29,664
Switched services....................................... 48,200 17,925
------------ ------------
Total revenue..................................... 100,138 47,589
------------ ------------
Costs and expenses (a):
Operating............................................... 38,989 23,995
Selling, general and administrative..................... 37,691 24,136
Depreciation and amortization........................... 21,864 14,994
------------ ------------
Total costs and expenses.......................... 98,544 63,125
------------ ------------
Operating income (loss)................................... 1,594 (15,536)
Interest expense (a)...................................... (9,727) (13,511)
Interest income........................................... 3,520 4,217
Equity in income of unconsolidated affiliate (note 2)..... - 188
------------ ------------
Net loss before income taxes.............................. (4,613) (24,642)
Income tax benefit........................................ (1,753) -
------------ ------------
Net loss.................................................. $ (2,860) (24,642)
============ ============
Basic and diluted loss per common share................... $ (0.03) (0.30)
============ ============
Average common shares outstanding......................... 104,975 81,250
============ ============
</TABLE>
(a) Includes expenses resulting from transactions with affilitates (note 4):
<TABLE>
<CAPTION>
<S> <C> <C>
Operating......................................... $ 388 508
============ ============
Selling, general and administrative............... $ 303 473
============ ============
Depreciation and amortization..................... $ 3,172 2,595
============ ============
Interest expense.................................. $ - 3,389
============ ============
</TABLE>
See accompanying notes.
2
<PAGE>
TIME WARNER TELECOM INC.
CONSOLIDATED STATEMENTS OF CASH FLOWS
(Unaudited)
<TABLE>
<CAPTION>
Three Months Ended
March 31,
------------------------
2000 1999
--------- ---------
(amounts in thousands)
<S> <C> <C>
Cash flows from operating activities:
Net loss.................................................................................... $ (2,860) (24,642)
Adjustments to reconcile net loss to net cash provided by (used in) operating activities:
Depreciation and amortization............................................................. 21,864 14,994
Equity in income of unconsolidated affiliate.............................................. - (188)
Deferred income tax benefit............................................................... (1,753) -
Changes in operating assets and liabilities, net of the effect of acquisitions:
Receivables and prepaid expenses........................................................ (7,353) (2,394)
Accounts payable, deferred revenue and other current liabilities........................ 6,881 (17,390)
Other balance sheet changes............................................................. 60 330
--------- ---------
Net cash provided by (used in) operating activities................................... 16,839 (29,290)
--------- ---------
Cash flows from investing activities:
Capital expenditures........................................................................ (62,329) (43,262)
Purchases of marketable securities.......................................................... (66,315) (26,744)
Proceeds from maturities of marketable securities........................................... 100,775 70,421
Other investing activities.................................................................. (3,000) -
--------- ---------
Net cash provided by (used in) investing activities................................... (30,869) 415
--------- ---------
Cash flows from financing activities:
Payment of capital lease obligations........................................................ (91) -
Net proceeds from issuance of common stock upon exercise of stock options................... 5,549 -
--------- ---------
Net cash provided by financing activities............................................. 5,458 -
--------- ---------
Decrease in cash and cash equivalents................................................. (8,572) (28,875)
Cash and cash equivalents at beginning of period...................................... 90,586 105,140
--------- ---------
Cash and cash equivalents at end of period............................................ $ 82,014 76,265
--------- ---------
Supplemental disclosures of cash flow information:
Cash paid for interest $ 19,164 18,908
--------- ---------
Tax benefit related to exercise of non-qualified stock options........................ $ 3,959 -
--------- ---------
</TABLE>
See accompanying notes.
3
<PAGE>
TIME WARNER TELECOM INC.
CONSOLIDATED STATEMENT OF CHANGES IN STOCKHOLDERS' EQUITY
Three Months Ended March 31, 2000
(Unaudited)
<TABLE>
<CAPTION>
Common Stock
-----------------------------------------
Class A Class B Additional Total
------------------- ------------------- paid-in Accumulated stockholders'
Shares Amount Shares Amount capital deficit equity
-------- -------- -------- -------- ---------- ----------- -------------
(amounts in thousands)
<S> <C> <C> <C> <C> <C> <C> <C>
Balance at January 1, 2000........ 23,543 $ 235 81,214 $ 812 559,950 (138,081) 422,916
Issuance of common stock upon
exercise of stock options..... 463 5 - - 9,503 - 9,508
Net loss........................ - - - - - (2,860) (2,860)
-------- -------- -------- -------- ---------- ----------- -------------
Balance at March 31, 2000......... 24,006 $ 240 81,214 $ 812 569,453 (140,941) 429,564
======== ======== ======== ======== ========== =========== =============
</TABLE>
See accompanying notes.
4
<PAGE>
TIME WARNER TELECOM INC.
NOTES TO CONSOLIDATED AND CONDENSED FINANCIAL STATEMENTS
March 31, 2000
(unaudited)
1. Organization and Summary of Significant Accounting Policies
Description of Business and Capital Structure
Time Warner Telecom Inc. (the "Company"), a Delaware corporation, is
a leading fiber facilities-based integrated communications provider in
selected metropolitan markets across the United States, offering local
businesses "last-mile" broadband connections for data, high-speed Internet
access, local voice and long distance services.
Time Warner Cable, as defined below, began the Company's business in
1993 by providing telephony services through cable systems owned by Time
Warner Entertainment Company, L.P. ("TWE"), Time Warner Entertainment-
Advance/Newhouse Partnership ("TWE-A/N") and Time Warner Inc. ("Time
Warner"), collectively referred to as the ''Former Parent Companies.''
"Time Warner Cable" refers to the cable systems owned by TWE, TWE-A/N and
Time Warner.
TWE and TWE-A/N are owned as follows:
(1) TWE is a partnership of subsidiaries of Time Warner and
MediaOne Group, Inc. ("MediaOne"); and
(2) TWE-A/N is a partnership of TWE, Time Warner and
Advance/Newhouse Partnership ("Advance").
On July 14, 1998, Time Warner Telecom LLC ("TWT LLC") succeeded to
the ownership of the Company's business. At that time, Time Warner,
MediaOne and Advance (collectively referred to as the "Class B
Stockholders") formed TWT LLC to acquire the assets and liabilities of the
Company's business from the Former Parent Companies and to conduct the
offering on July 21, 1998 of $400 million principal amount 9 3/4% Senior
Notes due July 2008 (the "Senior Notes"). In the transaction, referred to
as the "Reorganization," the Class B Stockholders (either directly or
through subsidiaries) became the owners of all the limited liability
company interests in TWT LLC. The Reorganization has been reflected as of
July 1, 1998 for accounting purposes.
On May 10, 1999, in preparation for the Company's initial public
offering, TWT LLC was reconstituted as a Delaware corporation (the
"Reconstitution") under the name Time Warner Telecom Inc. by merging into a
newly formed Delaware corporation. The Company accounted for the
Reorganization and the Reconstitution at each of the Class B Stockholders'
historical cost basis and, except as noted below, the Reorganization and
Reconstitution had no effect on the Company's total stockholders' equity,
which has been presented on a consistent basis. In connection with the
Reconstitution, the Company's capitalization was authorized to include two
classes of common stock, Class A common stock and Class B common stock. As
part of the merger, the outstanding Class A limited liability company
interests were converted into Class A common stock and the Class B
Stockholders exchanged their Class B limited liability company interests in
TWT LLC for Class B common stock of the newly formed corporation, Time
Warner Telecom Inc. Prior to the Reconstitution, the only outstanding Class
A interests were those held by the former shareholders of Internet Connect,
Inc. ("Inc.Net"), which the Company acquired in April 1999 (see note 2).
Following the Reconstitution, the Class B Stockholders held all of the
Company's Class B common stock. Accordingly, the accompanying financial
statements have been adjusted to retroactively reflect the authorization
and issuance of the shares of Class A common stock and Class B common stock
for all periods presented.
On May 14, 1999, in conjunction with the Reconstitution, the Company
completed an initial public offering of 20,700,000 shares of Class A common
stock at a price of $14 per share (the
5
<PAGE>
TIME WARNER TELECOM INC.
NOTES TO CONSOLIDATED AND CONDENSED FINANCIAL STATEMENTS - continued
"IPO"). The IPO generated $270.2 million in proceeds for the Company, net
of underwriting discounts and expenses. The net proceeds were used
primarily to repay indebtedness to the Former Parent Companies (see note
4). The proceeds of the IPO remaining after repayment of that indebtedness
were used to repay assumed debt from acquisitions and to fund capital
expenditures.
As a result of the IPO, the Company has two classes of common stock
outstanding, Class A common stock and Class B common stock. Holders of
Class A common stock have one vote per share and holders of Class B common
stock have ten votes per share. Each share of Class B common stock is
convertible, at the option of the holder, into one share of Class A common
stock. Holders of Class A common stock and Class B common stock generally
vote together as a single class. However, some matters require the
approval of 100% of the holders of the Class B common stock voting
separately as a class, and some matters require the approval of a majority
of the holders of the Class A common stock, voting separately as a class.
Upon completion of the IPO, the Class B Stockholders owned all of the
81,250,000 shares of outstanding Class B common stock. Subsequent to the
IPO, 35,715 shares of Class B common stock were converted into Class A
common stock. As of March 31, 2000, the Class B Stockholders had
approximately 97.1% of the combined voting power of the outstanding common
stock.
The Company also is authorized to issue shares of Preferred Stock.
The Company's Board of Directors has the authority to establish the voting
powers, the preferences and special rights for the Preferred Stock. No
such voting powers, preferences or special rights have been established and
no shares of Preferred Stock have been issued as of March 31, 2000.
On May 6, 1999, MediaOne and AT&T Corp. ("AT&T") entered into a
merger agreement providing for MediaOne to be acquired by AT&T. The
MediaOne stockholders have approved the merger, but the merger is subject
to various regulatory approvals. There is no assurance that the approvals
will be obtained or that the merger will be consummated. If the merger is
completed, the Class B common stock beneficially owned by MediaOne (through
a subsidiary) will be beneficially owned by AT&T. However, the transaction
will not affect the rights of MediaOne's subsidiary as a Class B
Stockholder.
MediaOne completed an underwritten offering on May 1, 2000 of
9,000,000 shares of Class A common stock of the Company that were converted
from shares of Class B common stock. MediaOne granted the underwriters an
over-allotment option on 500,000 additional shares. As a result of this
transaction, MediaOne is no longer entitled to appoint three members of the
Company's Board of Directors and the three directors designated by MediaOne
have resigned. Assuming the underwriters' over-allotment option is
exercised, MediaOne will hold 5,789,842 shares of Class B common stock
after the transaction, representing 5.5% of the Company's total outstanding
common stock and 7.7% of the total voting power. After the transaction and
assuming the underwriters' over-allotment option is exercised, the Class B
Stockholders had approximately 95.5% of the combined voting power of the
outstanding common stock as of May 2, 2000. The Company will not receive
any proceeds nor will total shares outstanding change as a result of this
transaction.
On January 10, 2000, Time Warner announced an agreement to merge
with America Online, Inc. ("AOL") in a stock-for-stock transaction that
would create a new company called AOL Time Warner Inc. As a result of the
merger, both AOL and Time Warner will become wholly owned subsidiaries of
AOL Time Warner. If the merger is completed, the Class B common stock
beneficially owned by Time Warner will be beneficially owned by AOL Time
Warner and its subsidiaries. However, the transaction will not affect the
rights of Time Warner subsidiaries as Class B Stockholders. The merger is
subject to customary closing conditions, including regulatory clearance and
stockholder approvals. There is no assurance that the approvals will be
obtained or that the merger will be consummated.
6
<PAGE>
TIME WARNER TELECOM INC.
NOTES TO CONSOLIDATED AND CONDENSED FINANCIAL STATEMENTS - continued
Basis of Presentation
Until July 14, 1998, the historical financial statements of the
Company reflected the "carved out" historical financial position, results
of operations, cash flows and changes in stockholders' equity of the
commercial telecommunications operations of the Former Parent Companies, as
if they had been operating as a separate company. Although these financial
statements are presented as if the Company had operated as a corporation,
the Company operated as a partnership for tax purposes and continued to
operate in a partnership structure through May 10, 1999. The consolidated
statements of operations have been adjusted to retroactively reflect an
allocation of certain expenses pursuant to the final terms of agreements
related to the Reorganization, primarily relating to office rent, overhead
charges for various administrative functions performed by Time Warner Cable
and certain facility maintenance and pole rental costs. These allocations
were required to reflect all costs of doing business and have been based on
various methods which management believes result in reasonable allocation
of these costs.
The accompanying interim consolidated and condensed financial
statements are unaudited, but in the opinion of management, reflect all
adjustments (consisting of normal recurring accruals) necessary for a fair
presentation of the results for such periods. The results of operations
for any interim period are not necessarily indicative of results for the
full year. The accompanying financial statements should be read in
conjunction with the audited consolidated financial statements and notes
thereto for the year ended December 31, 1999.
The preparation of financial statements in conformity with generally
accepted accounting principles requires management to make estimates and
assumptions that affect the reported amounts of assets and liabilities at
the date of the financial statements and the reported amounts of revenue
and expenses during the reporting period. Actual results could differ from
those estimates.
Basis of Consolidation and Accounting for Investments
The consolidated financial statements include the accounts of the
Company and all entities in which the Company has a controlling voting
interest ("subsidiaries"). Significant intercompany accounts and
transactions have been eliminated. Significant accounts and transactions
with Time Warner Cable are disclosed as related party transactions.
Investments in entities in which the Company has significant
influence, but less than a controlling voting interest, are accounted for
using the equity method. During the first quarter of 1999, the Company's
investment in unconsolidated affiliate consisted solely of a 50% investment
in MetroComm AxS, L.P. ("MetroComm L.P."), a joint venture providing
commercial telecommunications services in the central Ohio area. Under the
equity method, only the Company's investment in and amounts due to and from
the equity investee were included in the consolidated balance sheets, and
only the Company's share of the investee's income (losses) was included in
the consolidated statements of operations. During the second quarter of
1999, the remaining 50% of MetroComm L.P. was acquired (see note 2) and,
accordingly, is accounted for on a consolidated basis as of May 31, 1999.
Revenue
The Company's revenue has been derived primarily from business
telephony services, including dedicated transport, local switched, long
distance, data and high-speed Internet access services. The Company's
customers are principally telecommunications-intensive business end-users,
long distance carriers, Internet service providers ("ISPs"), wireless
communications companies and governmental entities.
Revenue for dedicated transport services is generally billed in
advance on a fixed rate basis and recognized over the period the services
are provided. Revenue for switched services, data and
7
<PAGE>
TIME WARNER TELECOM INC.
NOTES TO CONSOLIDATED AND CONDENSED FINANCIAL STATEMENTS - continued
Internet services and long distance are generally billed on a transactional
basis determined by customer usage with some fixed rate elements. The
transactional elements of switched services are billed in arrears and
estimates are used to recognize revenue in the period earned. The fixed
rate elements are billed in advance and recognized over the period
provided.
Reciprocal compensation revenue is an element of switched services
revenue, which represents compensation from local exchange carriers
("LECs") for local exchange traffic terminated on the Company's facilities
originated by other LECs. Reciprocal compensation is based on contracts
between the Company and LECs. The Company recognizes reciprocal
compensation revenue as it is earned, except in such cases where the
revenue is under dispute. Under several of its contracts, the LECs have
disputed the payment of reciprocal compensation for traffic terminating to
ISP customers contending that such traffic was not local. As a result, the
Company initiated the dispute resolution process under the applicable
contracts to collect these amounts and filed complaints with various public
utility commissions ("PUCs") contending that the ISP traffic is local.
Various of these state PUCs have ruled in favor of the Company, but all of
these favorable decisions have subsequently been appealed by the LECs.
While the Company believes that these disputes will ultimately be resolved
in its favor, the Company only recognizes revenue on a portion of the cash
received and defers recognition of a significant portion of this revenue
pending outcome of the dispute. As of March 31, 2000, the Company deferred
recognition of $49.4 million in reciprocal compensation revenue for
payments received associated with these disputes. Switched services
revenue for the three months ended March 31, 2000 includes the recognition
of $3.9 million of non-recurring reciprocal compensation. The Company
pays reciprocal compensation expense to the other LECs for local exchange
traffic it terminates on the LEC's facilities. These costs are recognized
as incurred and are reported as a component of operating expenses in the
accompanying consolidated statements of operations.
Significant Customers
The Company has substantial business relationships with a few large
customers, including the major long distance carriers. For the three
months ended March 31, 2000 and 1999, the Company's top 10 customers
accounted for 40% and 36%, respectively, of the Company's consolidated
revenue. AT&T accounted for more than 10% of the Company's total revenue
in the first quarter of 2000 and 1999. However, a substantial portion of
this revenue results from traffic that is directed to the Company by the
Company's customers who have selected AT&T as their long distance provider.
Revenue includes sales to AT&T (including sales directed to the Company by
the Company's customers) of approximately $10.1 million and $6.2 million
for the three months ended March 31, 2000 and 1999, respectively.
Segment Reporting
The Company operates in 21 service areas and the Company's
management makes decisions on resource allocation and assesses performance
based on total revenue, EBITDA and capital spending of these operating
locations. Each of the service areas offers the same products and
services, has similar customers and networks, is regulated by the same type
of authorities, and is managed directly by the Company's executives,
allowing the 21 service areas to be aggregated, resulting in one reportable
line of business.
Loss Per Common Share
The basic and diluted loss per common share for all periods
presented herein was computed by dividing the net loss attributable to
common shares by the weighted average outstanding common shares for the
period. Potential common shares were not included in the computation of
weighted average shares outstanding because their inclusion would be anti-
dilutive.
8
<PAGE>
TIME WARNER TELECOM INC.
NOTES TO CONSOLIDATED AND CONDENSED FINANCIAL STATEMENTS - continued
2. Acquisitions
During the second quarter of 1999, the Company acquired all of the
outstanding common stock of Inc.Net, an Internet service provider, for
consideration consisting of $3.8 million of Class A limited liability
interests in TWT LLC, the Company's predecessor, approximately $3.5 million
in net cash and the assumption of $1.9 million in liabilities. At the time
of the IPO, these Class A limited liability interests were converted into
307,550 shares of Class A common stock of the Company. The Class A common
stock of the Company into which the limited liability interests were
converted are being held in escrow to be released to the former Inc.Net
shareholders over a period of three years, beginning in April 2000.
Through the acquisition of this subsidiary, the Company plans to manage
current and future data networks and provide new Internet products. The
transaction was accounted for under the purchase method of accounting and
generated $6.9 million in goodwill, which is being amortized on a straight-
line basis over a ten-year period. Amortization expense for the three-
month period ended March 31, 2000, was approximately $173,000.
During the second quarter of 1999, the Company acquired all of the
outstanding common stock of MetroComm, Inc. ("MetroComm") through the
issuance of 2,190,308 shares of Class A common stock of the Company valued
at $24.1 million, and the assumption of $20.1 million in liabilities.
Through the acquisition of MetroComm, the Company acquired the 50% interest
of MetroComm L.P. not already owned by the Company. After the acquisition,
the Company's Columbus, Ohio assets were transferred to MetroComm L.P. and
all operations in Columbus, Ohio are now reported under the new entity.
The transaction was accounted for under the purchase method of accounting
and generated $18.8 million in goodwill, which is being amortized on a
straight-line basis over a ten-year period. Amortization expense for the
three-month period ended March 31, 2000, was approximately $470,000.
Since both acquisitions are accounted for as purchases, the results
of operations of Inc.Net and MetroComm are consolidated with the Company's
results of operations from their respective acquisition dates.
3. Long-Term Debt
The Senior Notes are unsecured, unsubordinated obligations of the
Company. Interest on the Senior Notes is payable semi-annually on January
15 and July 15, and began on January 15, 1999. Interest expense, including
amortization of debt discount, relating to the Senior Notes totaled
approximately $10.1 million for both the three months ended March 31, 2000
and 1999. At March 31, 2000, the fair market value for the $400 million of
Senior Notes was $404 million, based on market prices.
The Senior Notes are governed by an Indenture that contains certain
restrictive covenants. These restrictions affect, and in many respects
significantly limit or prohibit, among other things, the ability of the
Company to incur indebtedness, make prepayments of certain indebtedness,
pay dividends, make investments, engage in transactions with shareholders
and affiliates, issue capital stock of subsidiaries, create liens, sell
assets and engage in mergers and consolidations.
On April 10, 2000, the Company executed a $475 million Senior
Secured Revolving Credit Facility (the "Revolver"). The Revolver has a
final maturity of December 31, 2007 and initial borrowings will be at the
Eurodollar rate plus a margin of 2.0%. Applicable margins may be reduced
based upon the Company's financial performance. The Company is required to
pay commitment fees on a quarterly basis ranging from 0.875% to 0.500% per
annum on the undrawn available commitment. It is anticipated that the
Revolver will primarily be used for the build-out of the Company's network
and working capital needs.
The Revolver requires the Company to prepay any amounts that have
been borrowed with the proceeds received from a number of specified events
or transactions. In addition, obligations
9
<PAGE>
TIME WARNER TELECOM INC.
NOTES TO CONSOLIDATED AND CONDENSED FINANCIAL STATEMENTS - continued
under the Revolver are subject to various covenants that limit the
Company's ability to: (i) borrow and incur liens on its property; (ii) pay
dividends or make other distributions; and (iii) make capital expenditures.
The Revolver also contains financial covenants, including a consolidated
leverage ratio, a consolidated interest coverage ratio and a consolidated
debt service coverage ratio. In addition, the Revolver contains customary
events of default, including cross default provisions. Under the cross
default provisions, the Company is deemed to be in default under the
Revolver if the Company has defaulted under any of the other material
outstanding obligations, such as the Senior Notes.
4. Related Party Transactions
In the normal course of business, the Company engages in various
transactions with the Former Parent Companies, generally on negotiated
terms among the affected units that, in management's opinion, result in
reasonable allocations.
The Company benefits from its strategic relationship with Time
Warner Cable both through access to local right-of-way and construction
cost-sharing. The Company's networks have been constructed primarily
through the use of fiber capacity licensed from Time Warner Cable. Under
this licensing arrangement, the Company paid Time Warner Cable $1.1 million
for both the three months ended March 31, 2000 and 1999. These costs have
been capitalized by the Company. The amortization expense of these costs
and fiber previously capitalized in the amount of $3.2 million and $2.6
million for the three months ended March 31, 2000 and 1999, respectively,
has been classified as a component of depreciation and amortization expense
in the accompanying consolidated statements of operations. In addition,
under this licensing arrangement, the Company reimburses Time Warner Cable
for facility maintenance and pole rental costs, which aggregated $388,000
and $508,000 for the three months ended March 31, 2000 and 1999,
respectively.
The Company's operations, which in certain cases are co-located with
Time Warner Cable's divisions, are allocated a charge for various overhead
expenses for services provided by these divisions. Prior to the
Reorganization, the allocations were based on direct labor, total expenses
or headcount relative to each operating unit. The Company is also
allocated rent based on the square footage of space occupied by the Company
at Time Warner Cable's facilities. After the Reorganization, these costs
are based on contracts with Time Warner Cable. The charges aggregated
$303,000 and $473,000 for the three months ended March 31, 2000 and 1999,
respectively.
During the period from July 1, 1997 through July 14, 1998, all of
the Company's financing requirements were funded with subordinated loans
from the Former Parent Companies. These loans remained outstanding,
accruing interest, through May 14, 1999. The loans from the Former Parent
Companies were subordinated in right of payment to the Senior Notes, except
for a provision allowing repayment prior to maturity with the net proceeds
of any offering of common stock or equivalent interest of the Company.
These loans bore interest (payable in kind) at The Chase Manhattan Bank's
prime rate, which was 7.75% from January 1, 1999 through the payoff of the
loan in May 1999. Interest expense relating to these loans totaled
approximately $3.4 million for the three months ended March 31, 1999. On
May 14, 1999, approximately $180 million of the proceeds from the IPO were
used to repay the subordinated loans payable to the Former Parent Companies
in full, including accrued interest.
5. Commitments and Contingencies
Pending legal proceedings are substantially limited to litigation
incidental to the business of the Company. In the opinion of management,
the ultimate resolution of these matters will not have a material adverse
effect on the Company's financial statements.
10
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TIME WARNER TELECOM INC.
Management's Discussion and Analysis of Financial Condition and
Results of Operations
Cautions Concerning Forward Looking Statements
The following discussion and analysis provides information concerning
the results of operations and financial condition of Time Warner Telecom Inc.
(the "Company") and should be read in conjunction with the accompanying
financial statements and notes thereto. Additionally, the following discussion
and analysis should be read in conjunction with Management's Discussion and
Analysis of Financial Condition and Results of Operations and the consolidated
financial statements included in Part II of Time Warner Telecom Inc.'s Annual
Report on Form 10-K for the year ended December 31, 1999.
The Securities and Exchange Commission encourages companies to
disclose forward-looking information so that investors can better understand a
company's future prospects and make informed investment decisions. Certain
information included in this report contains ''forward-looking statements''
within the meaning of the Private Securities Litigation Reform Act of 1995,
including statements anticipating future growth in revenue, EBITDA and cash
flow. Words such as ''anticipate,'' ''estimate,'' ''expects,'' ''projects,''
''intends,'' ''plans,'' ''believes,'' ''target'' and words and terms of similar
substance used in connection with any discussion of future operating or
financial performance identify such forward-looking statements. Those forward-
looking statements are management's present expectation of future events. As
with any projection or forecast, they are inherently susceptible to changes in
circumstances, and the Company is under no obligation to (and expressly
disclaims any such obligation to) update or alter its forward-looking statements
despite such changes. Important factors that could cause actual results to
differ materially from these expectations are set forth under "Risk Factors" in
the Company's Registration Statement on Form S-1 (Registration No. 333-33166).
Overview
The Company is a leading fiber facilities-based integrated
communications provider offering local businesses "last-mile" broadband
connections for data, high-speed Internet access, local voice and long distance
services. The Company serves customers in 21 metropolitan markets in the United
States. The markets include: Austin, Dallas, Houston and San Antonio, Texas;
Charlotte, Greensboro and Raleigh, North Carolina; Albany, Binghamton, New York
City and Rochester, New York; Northern New Jersey; Cincinnati and Columbus,
Ohio; Memphis, Tennessee; Orlando and Tampa, Florida; Indianapolis, Indiana;
Milwaukee, Wisconsin; San Diego, California and Honolulu, Hawaii. The Company
plans to enter Los Angeles/Orange County, California; Fayetteville, North
Carolina and Dayton, Ohio during 2000. The Company recently announced its
intentions to commence construction in five additional markets as part of its
previously announced expansion plans. These markets include: Denver, Colorado;
Atlanta, Georgia; Chicago, Illinois; Minneapolis, Minnesota; and Columbia, South
Carolina.
The Company began its business in 1993 by providing telephony services
through cable systems owned by Time Warner Entertainment Company, L.P. ("TWE"),
Time Warner Entertainment-Advance/Newhouse Partnership ("TWE-A/N") and Time
Warner Inc. ("Time Warner"), collectively referred to as the "Former Parent
Companies." The Company's original business was to provide certain telephony
services together with cable television. In January 1997, the Company put in
place a new management team that implemented a business strategy focused
exclusively on serving business customers, rapidly providing switched services
in the Company's service areas and expanding the range of business telephony
services offered by the Company.
TWE and TWE-A/N are owned as follows:
(1) TWE is a partnership of subsidiaries of Time Warner and MediaOne
Group, Inc. ("MediaOne"); and
(2) TWE-A/N is a partnership of TWE, Time Warner and Advance/Newhouse
Partnership ("Advance").
On July 14, 1998, Time Warner Telecom LLC ("TWT LLC") succeeded to the
ownership of the Company's business. At that time, Time Warner, MediaOne and
Advance (collectively referred to as the
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TIME WARNER TELECOM INC.
"Class B Stockholders") formed TWT LLC to acquire the assets and liabilities of
the Company's business from the Former Parent Companies and to conduct the
offering on July 21, 1998 of $400 million principal amount 9 3/4% Senior Notes
due July 2008 (the "Senior Notes"). In the transaction, referred to as the
"Reorganization," the Class B Stockholders (either directly or through
subsidiaries) became the owners of all the limited liability company interests
in TWT LLC.
On May 10, 1999, in preparation for the Company's initial public
offering, TWT LLC was reconstituted as a Delaware corporation (the
"Reconstitution") under the name Time Warner Telecom Inc. by merging into a
newly formed Delaware corporation. As part of the merger, the outstanding Class
A limited company interests were converted into Class A common stock and the
Class B Stockholders exchanged their Class B limited liability company interests
in TWT LLC for Class B common stock of the newly formed corporation, Time Warner
Telecom Inc. Prior to the Reconstitution, the only outstanding Class A
interests were those held by former shareholders of Internet Connect, Inc.
("Inc.Net"), which the Company acquired in April 1999. The Company accounted
for the Reorganization and the Reconstitution at each of the Class B
Stockholders' historical cost basis and, except as noted below, the
Reorganization and the Reconstitution had no effect on the Company's total
stockholders' equity, which has been presented on a consistent basis.
The primary change to the Company's operating structure since the
Reconstitution is that the management of the Company became accountable to the
Board of Directors, instead of to the management committee of TWT LLC. In
addition, all future net operating loss carryforwards from the date of the
Reconstitution can be utilized against future earnings of the Company as a
result of the change in the Company's operating and legal structure from a
limited liability company to a corporation. Prior to the Reconstitution, all
net operating losses were allocated to and utilized primarily by the Class B
Stockholders. The Company has not been, and will not be compensated for net
operating losses utilized by the Class B Stockholders. As a result of the
Reconstitution, which occurred during the second quarter of 1999, the Company
recorded a non-recurring charge to earnings for a net deferred tax liability of
approximately $39.4 million.
On May 14, 1999, in conjunction with the Reconstitution, the Company
completed an initial public offering of 20,700,000 shares of Class A common
stock at a price of $14 per share (the "IPO"). The IPO generated approximately
$270.2 million in proceeds for the Company, net of underwriting discounts and
expenses. A portion of the proceeds of the IPO was used to repay $180 million
of loans from the Former Parent Companies that were generated from the financing
requirements of the Company from July 1, 1997 through July 14, 1998, which had
remained outstanding, accruing interest, through May 14, 1999.
As a result of the IPO, the Company has two classes of common stock
outstanding, Class A common stock and Class B common stock. In general, holders
of Class A common stock have one vote per share and holders of Class B common
stock have ten votes per share. Each share of Class B common stock is
convertible, at the option of the holder, into one share of Class A common
stock. Holders of Class A common stock and Class B common stock generally vote
together as a single class. However, some matters require the approval of 100%
of the holders of the Class B common stock voting separately as a class, and
some matters require the approval of a majority of the holders of the Class A
common stock, voting separately as a class. Upon completion of the IPO, the
Class B Stockholders owned all of the 81,250,000 shares of outstanding Class B
common stock. Subsequent to the IPO, 35,715 shares of Class B common stock were
converted into Class A common stock. As of March 31, 2000, the Class B
Stockholders had approximately 97.1% of the combined voting power of the
outstanding common stock.
On May 6, 1999, MediaOne and AT&T Corp. ("AT&T") entered into a merger
agreement providing for MediaOne to be acquired by AT&T. The MediaOne
stockholders have approved the merger, but the merger is subject to various
regulatory approvals. There is no assurance that the approvals will be obtained
or that the merger will be consummated. If the merger is completed, the Class B
common stock beneficially owned by MediaOne (through a subsidiary) will be
beneficially owned by AT&T. However, the transaction will not affect the rights
of MediaOne's subsidiary as a Class B Stockholder.
MediaOne completed an underwritten offering on May 1, 2000 of
9,000,000 shares of Class A common stock of the Company that were converted from
shares of Class B common stock. MediaOne
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TIME WARNER TELECOM INC.
granted the underwriters an over-allotment option on 500,000 additional shares.
As a result of this transaction, MediaOne is no longer entitled to appoint three
members of the Company's Board of Directors and the three directors designated
by MediaOne have resigned. Assuming the underwriters' over-allotment option is
exercised, MediaOne will hold 5,789,842 shares of Class B common stock after the
transaction, representing 5.5% of the Company's total outstanding common stock
and 7.7% of the total voting power. After the transaction and assuming the
underwriters' over-allotment option is exercised, the Class B Stockholders had
approximately 95.5% of the combined voting power of the outstanding common stock
as of May 2, 2000. The Company will not receive any proceeds nor will total
shares outstanding change as a result of this transaction.
On January 10, 2000, Time Warner announced an agreement to merge with
America Online, Inc. ("AOL") in a stock-for-stock transaction that would create
a new company called AOL Time Warner Inc. As a result of the mergers, both AOL
and Time Warner will become wholly owned subsidiaries of AOL Time Warner. If
the merger is completed, the Class B common stock beneficially owned by Time
Warner will be beneficially owned by AOL Time Warner and its subsidiaries.
However, the transaction will not affect the rights of Time Warner subsidiaries
as Class B Stockholders. The merger is subject to customary closing conditions,
including regulatory clearance and stockholder approvals. There is no assurance
that the approvals will be obtained or that the merger will be consummated.
Acquisitions
During the second quarter of 1999, the Company acquired all of the
outstanding common stock of Inc.Net, an Internet service provider, for
consideration consisting of $3.8 million of Class A limited liability interests
in TWT LLC, the Company's predecessor, approximately $3.5 million in net cash
and the assumption of $1.9 million in liabilities. At the time of the IPO,
these Class A limited liability interests were converted into 307,550 shares of
Class A common stock of the Company. The Class A common stock of the Company
into which the limited liability interests were converted are being held in
escrow to be released to the former Inc.Net shareholders over a period of three
years, beginning in April 2000. Through the acquisition of this subsidiary, the
Company plans to manage current and future data networks and provide new
Internet products.
During the second quarter of 1999, the Company acquired all of the
outstanding common stock of MetroComm, Inc. ("MetroComm") through the issuance
of 2,190,308 shares of Class A common stock of the Company valued at $24.1
million, and the assumption of $20.1 million in liabilities. Through the
acquisition of MetroComm, the Company acquired the 50% interest of MetroComm
AxS, L.P., a competitive local exchange carrier in Columbus, Ohio, not already
owned by the Company.
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TIME WARNER TELECOM INC.
Results of Operations
The following table sets forth certain consolidated statements of
operations data of the Company, in thousands of dollars and expressed as a
percentage of total revenue, for each of the periods presented. This table
should be read together with the Company's financial statements, including the
notes thereto, appearing elsewhere in this report:
<TABLE>
<CAPTION>
Three Months Ended March 31,
-----------------------------------------
2000 1999
----------------- -----------------
(amounts in thousands, except per share amounts)
<S> <C> <C> <C> <C>
Statements of Operations Data:
Revenue:
Dedicated transport services $ 51,938 52 % 29,664 62 %
Switched services (1) 48,200 48 17,925 38
-------- ----- -------- -----
Total revenue 100,138 100 47,589 100
-------- ----- -------- -----
Costs and expenses (2):
Operating 38,989 39 23,995 50
Selling, general and administrative 37,691 37 24,136 51
Depreciation and amortization 21,864 22 14,994 32
-------- ----- -------- -----
Total costs and expenses 98,544 98 63,125 133
-------- ----- -------- -----
Operating income (loss) 1,594 2 (15,536) (33)
Interest expense (2) (9,727) (10) (13,511) (28)
Interest income 3,520 3 4,217 9
Equity in income of unconsolidated affiliate - - 188 -
-------- ----- -------- -----
Net loss before income taxes (4,613) (5) (24,642) (52)
Income tax benefit (1,753) (2) - -
-------- ----- -------- -----
Net loss $ (2,860) (3)% (24,642) (52)%
======== ===== ======== =====
Basic and diluted loss per common share $ (0.03) (0.30)
Basic and diluted loss per common share before income taxes $ (0.04) (0.30)
Average common shares outstanding 104,975 81,250
EBITDA (1) (3) $ 23,458 23 % (542) (1)%
Net cash provided by (used in) operating activities 16,839 (29,290)
Net cash provided by (used in) investing activities (30,869) 415
Net cash provided by financing activities 5,458 -
</TABLE>
(1) Includes the recognition of $3.9 million of non-recurring reciprocal
compensation in the first quarter of 2000.
(2) Includes expenses resulting from transactions with affiliates of $3.9
million and $7.0 million for the three months ended March 31, 2000 and
1999, respectively.
(3) "EBITDA" is defined as operating income (loss) before depreciation and
amortization expense. It does not include charges for interest expense or
provision for income taxes. Accordingly, EBITDA is not intended to replace
operating income, net income (loss), cash flow and other measures of
financial performance and liquidity reported in accordance with generally
accepted accounting principles. Rather, EBITDA is a measure of operating
performance and liquidity that investors may
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TIME WARNER TELECOM INC.
consider in addition to these measures. Management believes that
EBITDA is a standard measure of operating performance and liquidity
that is commonly reported and widely used by analysts, investors and
other interested parties in the telecommunications industry because it
eliminates many differences in financial, capitalization, and tax
structures, as well as non-operating one-time charges to earnings.
EBITDA is used internally by the Company's management to assess
ongoing operations and is a component of a covenant of the Senior
Notes that limits the Company's ability to incur certain additional
future indebtedness. However, EBITDA as used in this report may not be
comparable to similarly titled measures reported by other companies
due to differences in accounting policies.
General
The Company's revenue has been derived primarily from business
telephony services, including dedicated transmission, local switched, long
distance, data and high-speed Internet access services. The Company's customers
are principally telecommunications-intensive business end-users, long distance
carriers, Internet service providers ("ISPs"), wireless communications companies
and governmental entities. Since its inception in 1993, the Company has
experienced significant growth in revenue and the geographic scope of its
operations. An increasing portion of the Company's growth in revenue has come
from the provision of local switched services as a result of the 21 digital
voice switches deployed as of March 31, 2000. The Company believes that
switched services provide the opportunity for a greater incremental return on
invested capital than that expected from dedicated transport services. The
shift of the revenue growth to switched services may cause the Company's revenue
to become less predictable since a portion of the services are billed to
customers on a usage basis. Dedicated transport customers are typically billed
a flat monthly rate which produces a less variable stream of revenue for the
Company. Furthermore, it is expected that the growth in the switched service
offerings, as well as data and Internet services, will expand the Company's
customer base to customers that are generally smaller than those who purchase
dedicated transport services. Key to the Company's strategy is leveraging its
existing fiber optic networks by adding additional services such as data and
Internet and an integrated product for smaller customers. The Company expects
to experience a higher churn rate for these customers than it has traditionally
experienced with dedicated transport services. The Company intends to minimize
churn in services to smaller customers by offering these services under minimum
one-year contracts.
Reciprocal compensation revenue is an element of switched services
revenue, which represents compensation from local exchange carriers (''LECs'')
for local exchange traffic terminated on the Company's facilities originated by
other LECs. Reciprocal compensation is based on contracts between the Company
and LECs. The Company recognizes reciprocal compensation revenue as it is
earned, except in such cases where the revenue is under dispute. Under several
of its contracts, the LECs have disputed the payment of reciprocal compensation
for traffic terminating to ISP customers contending that such traffic was not
local. As a result, the Company initiated the dispute resolution process under
the applicable contracts to collect these amounts and filed complaints with
various public utility commissions (''PUCs'') contending that the ISP traffic is
local. Various of these state PUCs have ruled in favor of the Company, but all
of these favorable decisions have subsequently been appealed by the LECs. While
the Company believes that these disputes will ultimately be resolved in its
favor, the Company only recognizes revenue on a portion of the cash received and
defers recognition of a significant portion of this revenue pending outcome of
the dispute. As of March 31, 2000, the Company has deferred recognition of
$49.4 million in reciprocal compensation revenue for payments received
associated with these disputes. Switched services revenue for the three months
ended March 31, 2000 includes the recognition of $3.9 million of non-recurring
reciprocal compensation. The Company pays reciprocal compensation expense to
the other LECs for local exchange traffic it terminates on the LEC's facilities.
These costs are recognized as incurred.
Reciprocal compensation is a component of switched services that is
rate sensitive. Rates are established by interconnection agreements between the
parties based on regulatory and judicial ruling in each of the states. Several
significant agreements have expired or will be expiring over the next year.
These contracts are being or will be renegotiated in 2000. In most of the
states, regulatory bodies have established lower traffic termination rates than
the rates provided under the Company's previous agreements. While the Company
expects that it will negotiate reasonable interconnection agreements with the
LECs, pricing
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TIME WARNER TELECOM INC.
structures are not likely to remain at their current levels. As discussed below,
reciprocal compensation represented 8% of revenue, excluding the effects of the
recognition of $3.9 million of non-recurring reciprocal compensation in the
first quarter of 2000. Although the renegotiated interconnection agreements are
likely to result in lower rates, management believes that the volume in minutes
driven by the growth in Internet and related markets will partially mitigate the
impact of the rate reduction. The outcome of regulatory and judicial rulings on
reciprocal compensation for ISP traffic may also negatively impact the Company's
revenue from reciprocal compensation. The Company cannot predict the outcome of
these rulings. Accordingly, there is no assurance that the Company will be able
to compensate for the reduction in reciprocal compensation with increased volume
of terminating local traffic.
The Company benefits from its strategic relationship with Time Warner
Cable both through access to local right-of-way and construction cost-sharing.
The Company's networks have been constructed primarily through the use of fiber
capacity licensed from Time Warner Cable. As of March 31, 2000, the Company
operated networks in 21 metropolitan areas that spanned 8,960 route miles,
contained 336,843 fiber miles and offered service to 5,968 buildings.
The Company plans to continue expanding its revenue base by fully
utilizing available network capacity in its existing markets, by adding networks
in new markets and by continuing to develop and selectively tailor new services
in competitively-priced packages to meet the needs of its medium and large-sized
business customers. The Company intends to expand its product offerings on a
continuous basis to achieve a diverse revenue base. As part of that process,
the Company is targeting the expansion of data and Internet products that can be
offered on the Company's existing network.
Operating expenses consist of costs directly related to the operation
and maintenance of the networks and the provision of the Company's services.
This includes the salaries and related expenses of operations and engineering
personnel, as well as costs incurred from the incumbent local exchange carriers,
other competitors and long distance providers for facility leases and
interconnection. These costs have increased over time as the Company has
increased its operations and revenue. The Company expects these costs to
continue to increase as the Company's revenue growth continues, but generally at
a slower rate than revenue growth.
Selling, general and administrative expenses consist of salaries and
related costs for employees other than those involved in operations and
engineering. These expenses include costs related to sales and marketing,
information technology, billing, regulatory and legal costs. These costs have
increased over time as the Company has increased its operations and revenue.
The Company expects these costs to continue to increase as the Company's revenue
growth continues, but generally at a slower rate than revenue growth.
In the normal course of business, the Company engages in various
transactions with Time Warner Cable, generally on negotiated terms among the
affected units that, in management's view, result in reasonable allocations. In
connection with the Reorganization, the Company entered into several contracts
with Time Warner Cable with respect to certain of these transactions. The
Company's selling, general and administrative expenses include charges allocated
from Time Warner Cable for office rent and overhead charges for various
administrative functions they perform for the Company. These charges are
required to reflect all costs of doing business and are based on various
methods, which management believes result in reasonable allocations of the costs
that are necessary to present the Company's operations as if they are operated
on a stand alone basis. In addition, the Company licenses the right to use the
majority of its fiber optic cable facilities from Time Warner Cable through
prepaid right-to-use agreements and reimburses Time Warner Cable for facility
maintenance and pole rental costs. The maintenance and pole rental costs are
included in the Company's operating expenses.
Three Months Ended March 31, 2000 Compared to Three Months Ended March 31, 1999
Revenue. Revenue increased $52.5 million, or 110%, to $100.1 million
for the three months ended March 31, 2000, from $47.6 million for the comparable
period in 1999. Revenue from the provision of dedicated transport services
increased $22.3 million, or 75%, to $51.9 million for the three months ended
March 31, 2000, from $29.7 million for the comparable period in 1999. Switched
service revenue increased
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TIME WARNER TELECOM INC.
$30.3 million, or 169%, to $48.2 million for the three months ended March 31,
2000, from $17.9 million for the comparable period in 1999. Exclusive of the
effects of acquisitions and the effects of the recognition of $3.9 million of
non-recurring reciprocal compensation in the first quarter of 2000, dedicated
transport service and switched service revenue increased 63% and 165%,
respectively. The increase in revenue from dedicated transport services
primarily reflects a 32% increase in average dedicated transport customers and a
broader array of products and services offered in existing markets. The increase
in switched service revenue reflects a 82% increase in average switched service
customers, increased revenue from switched access services and reciprocal
compensation, and a broader array of products and services offered in existing
markets. Reciprocal compensation represented 8% and 7% of total revenue for the
three months ended March 31, 2000 and 1999, respectively, excluding the effects
of the recognition of $3.9 million of non-recurring reciprocal compensation in
the first quarter of 2000. At March 31, 2000 the Company offered dedicated
transport services in 21 metropolitan areas, 20 of which also offered switched
services. At March 31, 1999, the Company offered dedicated transport services in
18 consolidated metropolitan areas, 16 of which also offered switched services.
Operating Expenses. Operating expenses increased $15.0 million, or
62%, to $39.0 million for the three months ended March 31, 2000, from $24.0
million for the comparable period in 1999. Exclusive of the effects of
acquisitions, these expenses increased 51%. The increase in operating expenses
was primarily attributable to the Company's expansion of its business,
principally switched services, the ongoing development of existing markets
resulting in higher local exchange carrier charges for circuit leases and
interconnection, and higher headcount for technical personnel. As a percentage
of revenue, operating expenses decreased to 39% for the three months ended March
31, 2000 from 50% for the comparable period in 1999.
Selling, General and Administrative Expenses. Selling, general and
administrative expenses increased $13.6 million, or 56%, to $37.7 million for
the three months ended March 31, 2000, from $24.1 million for the comparable
period in 1999. Exclusive of the effects of acquisitions, these expenses
increased 51%. The increase in selling, general and administrative expenses was
primarily attributable to an increase in employee headcount and higher direct
sales costs associated with the increase in revenue, higher property tax expense
and an increase in the provision for doubtful accounts related to the increase
in revenue. Included in selling, general and administrative expenses is
approximately $0.8 million in costs related to a Form S-1 filing with the
Securities and Exchange Commission to facilitate the sale of shares by a Class B
Stockholder. As a percentage of revenue, selling, general and administrative
expenses decreased to 37% for the three months ended March 31, 2000 from 51% for
the comparable period in 1999.
Depreciation and Amortization Expense. Depreciation and amortization
expense increased $6.9 million, or 46%, to $21.9 million for the three months
ended March 31, 2000, from $15.0 million for the comparable period in 1999.
Exclusive of the effects of acquisitions, this expense increased 41%. The
increase in depreciation and amortization expense was primarily attributable to
increased capital expenditures and increased goodwill generated from
acquisitions.
EBITDA. EBITDA for the three months ended March 31, 2000 increased
$24.0 million to $23.5 million, from a loss of $0.5 million in 1999. The
increase was $19.7 million, exclusive of the effects of acquisitions and the
effects of the recognition of $3.9 million of non-recurring reciprocal
compensation in the first quarter of 2000. This improvement was primarily the
result of economies of scale as more revenue was generated in existing markets,
increased utilization of networks and facilities and a more skilled and
productive workforce.
Interest Expense. During the period July 1, 1997 through July 14,
1998, all of the Company's financing requirements were funded with subordinated
loans payable from the Former Parent Companies. These loans remained
outstanding, accruing interest, through May 14, 1999. On July 21, 1998, the
Company issued $400 million in Senior Notes in a public offering. On May 14,
1999, the subordinated loans of approximately $180 million, including accrued
interest, were repaid in full to the Former Parent Companies from the IPO
proceeds. Interest expense relating to the Senior Notes was $10.1 million for
the three months ended March 31, 2000 and interest expense relating to the
Senior Notes and subordinated loans payable aggregated $13.5 million for the
three months ended March 31, 1999. The decrease of $3.4 million is primarily
due to the lower weighted average debt balance during the three months ended
March 31, 2000.
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TIME WARNER TELECOM INC.
Net Loss. Net loss decreased $21.8 million, or 88% to $2.9 million
for the three months ended March 31, 2000, from a net loss of $24.6 million for
the comparable period in 1999. The net loss decrease is primarily due to the
improvement in EBITDA.
Loss per Common Share. The basic and diluted loss per common share
was computed by dividing the net loss applicable to common shares by the
weighted average outstanding common shares for the period. Potential common
shares were not included in the computation of weighted average shares
outstanding because their inclusion would be anti-dilutive. The increase in the
weighted average shares outstanding is due to the issuance of Class A common
stock for the IPO, for acquisitions and upon the exercise of stock options. For
the three months ended March 31, 2000, the basic and diluted loss per common
share decreased ($0.27) per share or 90% to ($0.03) per share from ($0.30) per
share for the comparable period in 1999.
Liquidity and Capital Resources
Operations. The Company's cash provided by operating activities was
$16.8 million for the three months ended March 31, 2000, as compared to cash
used in operating activities of $29.3 million for the comparable period in 1999.
This increase in cash provided by operating activities of $46.1 million
principally resulted from increases in EBITDA of $24.0 million, accounts payable
and other current liabilities, and depreciation and amortization expense. As
the Company continues its expansion plan to enter into new markets, the
expenditures incurred, together with initial operating expenses, will generally
result in negative EBITDA and operating losses from a network until an adequate
customer base and revenue stream for the network have been established.
Accordingly, the Company expects that the network constructed in each new market
will generally produce negative EBITDA for at least two and a half years after
operations commence in each market. Although overall the Company expects to
continue to have positive EBITDA for the near future as it develops and expands
its business, there can be no assurance that the Company will sustain sufficient
positive EBITDA to meet its working capital requirements and to service its
indebtedness.
Investing. Cash used in investing activities was $30.9 million for
the three months ended March 31, 2000, as compared to cash provided by investing
activities of $0.4 million for the comparable period in 1999. During both the
three months ended March 31, 2000 and 1999, proceeds from the maturities of
marketable securities were primarily used to fund capital expenditures.
During the three months ended March 31, 2000, capital expenditures
were $62.3 million, an increase of $19.1 million from the comparable period in
1999. The largest commitment of capital was related to the installation of
transport and switch related electronics to support the increase in sales
activity and the addition of 88 route miles of fiber since December 31, 1999.
Based on historic capital requirements for network construction in relation to
sales volumes and network expansion plans, the Company anticipates it will
commit approximately $350 million in 2000 to fund its capital expenditures.
This target spending includes requirements for current operating markets and the
Company's expansion plans.
The facilities-based telecommunications business is a capital
intensive business. The Company's operations have required and will continue to
require substantial capital investment for:
. the purchase and installation of switches, electronics, fiber and
other technologies in existing networks and in additional networks
to be constructed in new service areas;
. the acquisition and expansion of networks currently owned and
operated by other companies; and
. the evolution of the network to support new products, services and
technologies.
The Company's expected capital expenditures for general corporate
and working capital purposes include:
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TIME WARNER TELECOM INC.
. expenditures with respect to the Company's management information
system and corporate service support infrastructure; and
. operating and administrative expenses with respect to new networks
and debt service.
The Company plans to make substantial capital investments in
connection with plans to construct and develop new networks, as well as for
technology upgrades. Expansion of the Company's networks will include the
geographic expansion of the Company's existing operations, and the Company will
consider the development of new markets. In addition, the Company may acquire
existing networks in the future.
The Company regularly evaluates potential acquisitions of, and joint
ventures relating to, networks currently owned and operated by other companies,
including affiliates of the Class B Stockholders, and expects to continue to do
so. In the event the Company enters into a definitive agreement with respect to
any acquisition or joint venture, it may require additional financing or it may
elect to use a portion of the proceeds from the sale of the Senior Notes not
theretofore expended for other purposes, including but not limited to, capital
expenditures and working capital requirements.
While the Company intends to continue to leverage its relationship
with Time Warner Cable in pursuing expansion opportunities, to the extent the
Company seeks to expand into service areas where Time Warner Cable does not
conduct cable operations, the Company may incur significant additional costs in
excess of those historically incurred by the Company when expanding into
existing Time Warner Cable service areas. In addition, Time Warner Cable is not
obligated to construct or provide additional fiber optic capacity in excess of
what is already licensed to the Company under certain operating agreements.
Accordingly, if the Company is unable to lease additional capacity at the same
rates as are currently provided for under certain operating agreements, the
Company may be required to obtain additional capacity on more expensive terms.
The development and expansion of the Company's existing and future
networks and services will require significant capital to fund these capital
expenditures. The Company expects that its future cash requirements will
principally be for funding future growth and capital expenditures. In light of
the expected future cash requirements, the Company, on April 12, 2000, executed
a $475 million Senior Secured Revolving Credit Facility with The Chase Manhattan
Bank, as Administrative Agent, Bank of America, N.A., as Syndication Agent and
ABN Amro Bank N.V., as Documentation Agent (the "Revolver"). The Revolver has a
final maturity of December 31, 2007 and initial borrowings will be at the
Eurodollar rate plus a margin of 2.0%. Applicable margins may be reduced based
upon the Company's financial performance. It is anticipated that the Revolver
will primarily be used for the build-out of the Company's network and working
capital needs, and that the Company may begin drawing on the Revolver during the
second half of 2000. The Company expects that the $221.5 million in cash, cash
equivalents and marketable securities at March 31, 2000, borrowings under the
Revolver along with internally generated funds, will provide sufficient funds
for the Company to meet its expected capital and liquidity needs to expand its
business as currently planned and pay interest on the Senior Notes. In the
event that the Company's plans or assumptions change or prove to be inaccurate,
or the foregoing sources of funds prove to be insufficient to fund the Company's
growth and operations, or if the Company consummates acquisitions or joint
ventures, the Company may be required to seek additional capital sooner than
currently anticipated. The Company's revenue and costs are dependent upon
factors that are not within the Company's control, for example regulatory
changes, changes in technology and increased competition. Due to the
uncertainty of these and other factors, actual revenue and costs may vary from
expected amounts, possibly to a material degree, and these variations are likely
to affect the level of the Company's future capital expenditures and expansion
plans. Sources of additional financing may include public or private debt,
equity financing by the Company or its subsidiaries or other financing
arrangements.
Financing. Net cash provided by financing activities for the three
months ended March 31, 2000 was $5.5 million and was primarily due to the net
proceeds from the issuance of common stock upon exercise of stock options.
19
<PAGE>
TIME WARNER TELECOM INC.
During the period from July 1, 1997 through July 14, 1998, all of the
Company's financing requirements were funded with subordinated loans from the
Former Parent Companies. These loans remained outstanding, accruing interest,
through May 14, 1999. The loans from the Former Parent Companies were
subordinated in right of payment to the Senior Notes, except for a provision
allowing repayment prior to maturity with the net proceeds of any offering of
common stock or equivalent interest of the Company. The $400 million principal
amount in Senior Notes that the Company issued in July 1998 are unsecured,
unsubordinated obligations of the Company. Interest on the Senior Notes is
payable semiannually on January 15 and July 15, and began on January 15, 1999.
Aggregate annual interest payments on the Senior Notes through 2008 are expected
to be approximately $39 million. The Senior Notes are required to be repaid on
July 15, 2008. On May 14, 1999, approximately $180 million of the proceeds from
the IPO were used to repay the subordinated loans payable to the Former Parent
Companies in full, including accrued interest. The proceeds of the IPO
remaining after repayment of the subordinated loans payable, combined with the
proceeds from the Senior Notes, have been used to continue funding the Company's
continued growth, which includes expansion of the Company's networks, and for
general corporate purposes. The Former Parent Companies are not under any
obligation to make any additional equity investments or loans to the Company.
The Senior Notes are governed by an Indenture that contains certain
restrictive covenants. These restrictions affect, and in many respects
significantly limit or prohibit, among other things, the ability of the Company
to incur indebtedness, make prepayments of certain indebtedness, pay dividends,
make investments, engage in transactions with shareholders and affiliates, issue
capital stock of subsidiaries, create liens, sell assets and engage in mergers
and consolidations.
The Revolver requires the Company to prepay outstanding loans when its
cash flow exceeds certain levels and with the proceeds received from a number of
specified events or transactions, including certain asset sales and insurance
recoveries for assets not replaced. In addition, obligations under the Revolver
are subject to various covenants that limit the Company's ability to:
. borrow and incur liens on its property;
. pay dividends or make other distributions; and
. make capital expenditures.
The Revolver also contains financial covenants, including a
consolidated leverage ratio, a consolidated interest coverage ratio and a
consolidated debt service coverage ratio. In addition, the Revolver contains
customary events of default, including cross default provisions. Under the
cross defaults provisions, the Company is deemed to be in default under the
Revolver if the Company has defaulted under any of the other material
outstanding obligations, such as the Senior Notes.
The Company continues to evaluate potential acquisitions and joint
ventures that would extend the Company's geographic markets, expand the
Company's products and services and/or enlarge the capacity of its networks.
Some of these transaction may be considerably larger than the transactions it
has completed in the past. If the Company enters into a definitive agreement
with respect to any material transaction, it could results in the Company
increasing its leverage or issuing additional common stock or both. There can
be no assurance, however, that the Company will enter into any transaction or,
if it does, on what terms.
20
<PAGE>
TIME WARNER TELECOM INC.
Part II
Other Information
Item 1. Legal Proceedings
Southwestern Bell Telephone Company v. Public Utility Commission of Texas et al.
The Company filed a complaint with the Texas Public Utility Commission
("PUC") in October 1997 as a result of Southwestern Bell Telephone's ("SWBT"')
refusal to pay the Company reciprocal compensation under the Interconnection
Agreement between the parties for calls terminated to the Company's Internet
service provider ("ISP") customers in Texas based on SWBT's contention that such
traffic was not "local". The PUC ruled that calls to ISPs are local and
required SWBT to compensate the Company for those calls under the
Interconnection Agreement. SWBT then sought to enjoin and stay the PUC's order
in Federal District Court for the Western District of Texas and sought a
declaration that calls to ISPs are not local. On April 16, 1998, the District
Court denied all relief sought by SWBT and SWBT appealed that decision. SWBT's
appeal to the Fifth Circuit Court of Appeals is still pending. Following the
PUC's order, SWBT began to make reciprocal compensation payments for ISP traffic
under the Interconnection Agreement.
On March 30, 2000, the Fifth Circuit Court of Appeals affirmed the
decision of the PUC that modem calls within a local calling area to Internet
service providers are "local" calls and therefore subject to reciprocal
compensation under the Interconnection Agreement between the parties.
Southwestern Bell has filed a petition with the Fifth Circuit for rehearing. If
SWBT prevails upon rehearing, the Company may be required to repay the amounts
received from SWBT since April 1997 in respect of ISP traffic with interest as
well as reverse amounts previously recognized into income (see "Management's
Discussion and Analysis of Financial Condition and Results of Operations -
General").
Item 2. Changes in Securities and Use of Proceeds.
(c) The Company issued 211 shares of Class A common stock to each of
its independent directors as a portion of their compensation for
services as directors during the third and fourth quarters of
1999. The shares were issued in a private placement under Section
4 (2) of the Securities Act of 1933.
Item 6. Exhibits and Reports on Form 8-K.
(a) Exhibits
The exhibits listed on the accompanying Exhibit Index are filed or
incorporated by reference as part of this report and the Exhibit Index
is incorporated herein by reference.
21
<PAGE>
TIME WARNER TELECOM INC.
EXHIBIT INDEX
Exhibit
Number Description of Exhibit
- ------ ----------------------
2.1 -- Reorganization Agreement among Time Warner Companies, Inc.,
MediaOne Group, Inc., Advance/Newhouse Partnership, Time Warner
Entertainment Company, L.P., and Time Warner Entertainment-
Advance/Newhouse Partnership (filed as Exhibit 2.1 to Time Warner
Telecom ("TWT") LLC's Quarterly Report on Form 10-Q for the quarter
ended June 30, 1998.*
2.2 -- Merger Agreement among the Company, TWT LLC and TWT Inc. (filed as
Exhibit 2.2 to the Company's Registration Statement on Form S-1
(Registration No. 333-49439)).*
3.1 -- Restated Certificate of Incorporation of the Company (filed as
Exhibit 2.2 to Company's Registration Statement on Form S-1
(Registration No. 333-49439)).*
3.2 -- Restated By-Laws of the Company (filed as Exhibit 3.2 to Company's
Registration Statement on Form S-1 (Registration No. 333-49439)).*
4.1 -- Stockholders' Agreement, among the Company, Time Warner Companies,
Inc., American Television and Communications Corporation, Warner
Communications Inc., TW/TAE Inc., FibrCOM Holdings, L.P., Paragon
Communications, MediaOne Group, Inc., Multimedia Communications,
Inc. and Advance/Newhouse Partnership (filed as Exhibit 4.1 to
Company's Registration Statement on Form S-1 (Registration No. 333-
49439)).*
4.2 -- Indenture, between TWT LLC, TWT Inc. and The Chase Manhattan Bank,
as Trustee (filed as Exhibit 4.1 to TWT LLC's Quarterly Report on
Form 10-Q for the quarter ended June 30, 1998).*
10.1 -- Credit Agreement among Time Warner Telecom Inc., Time Warner
Telecom Holdings Inc., the several lenders from time to time
parties hereto, The Chase Manhattan Bank, as Administrative Agent,
Bank of America, N.A., as Syndication Agent and ABN Amro Bank N.V.,
as Documentation Agent.
27 -- Financial Data Schedule
* Incorporated by reference.
22
<PAGE>
Signature
Pursuant to the requirements of the Securities Exchange Act of 1934,
the Registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
TIME WARNER TELECOM INC.
Date: May 12, 2000 By: /s/ Jill R. Stuart
-------------------------------
Jill R. Stuart
Vice President, Accounting
and Finance and Chief
Accounting Officer
<PAGE>
EXECUTION COPY
Exhibit 10.1
$475,000,000
CREDIT AGREEMENT
among
TIME WARNER TELECOM INC.,
TIME WARNER TELECOM HOLDINGS INC.,
as Borrower,
The Several Lenders
from Time to Time Parties Hereto,
THE CHASE MANHATTAN BANK,
as Administrative Agent,
BANK OF AMERICA, N.A.,
as Syndication Agent,
and
ABN AMRO BANK N.V.,
as Documentation Agent
Dated as of April 10, 2000
<PAGE>
TABLE OF CONTENTS
-----------------
<TABLE>
<CAPTION>
Page
----
<S> <C>
SECTION 1. DEFINITIONS 1
1.1 Defined Terms 1
1.2 Other Definitional Provisions 19
SECTION 2. AMOUNT AND TERMS OF COMMITMENTS 19
2.1 Commitments; Additional Commitments; Incremental Facility 19
2.2 Procedure for Borrowing 20
2.3 Repayment of Loans 21
2.4 Swingline Commitment 21
2.5 Procedure for Swingline Borrowing; Refunding of Swingline Loans 22
2.6 Commitment Fees, etc. 23
2.7 Optional Termination or Reduction of Revolving Commitments 23
2.8 Optional Prepayments 23
2.9 Additional Mandatory Prepayments and Commitment Reductions 24
2.10 Conversion and Continuation Options 25
2.11 Limitations on Eurodollar Loans 25
2.12 Interest Rates and Payment Dates 25
2.13 Computation of Interest and Fees 26
2.14 Inability to Determine Interest Rate 26
2.15 Pro Rata Treatment and Payments 26
2.16 Requirements of Law 27
2.17 Taxes 28
2.18 Indemnity 30
2.19 Change of Lending Office 30
2.20 Replacement of Lenders 30
SECTION 3. LETTERS OF CREDIT 31
3.1 L/C Commitment 31
3.2 Procedure for Issuance of Letter of Credit 31
3.3 Fees and Other Charges 32
3.4 L/C Participations 32
3.5 Reimbursement Obligation of the Borrower 33
3.6 Obligations Absolute 33
3.7 Letter of Credit Payments 33
3.8 Applications 33
SECTION 4. REPRESENTATIONS AND WARRANTIES 33
4.1 Financial Condition 34
4.2 No Change 34
4.3 Existence; Compliance with Law 34
4.4 Power; Authorization; Enforceable Obligations 34
4.5 No Legal Bar 35
4.6 Litigation 35
4.7 No Default 35
4.8 Ownership of Property; Liens 35
4.9 Intellectual Property 35
4.10 Taxes 35
</TABLE>
-i-
<PAGE>
<TABLE>
<S> <C>
4.11 Federal Regulations 35
4.12 Labor Matters 36
4.13 ERISA 36
4.14 Investment Company Act; Other Regulations 36
4.15 Subsidiaries 36
4.16 Use of Proceeds 36
4.17 Environmental Matters 37
4.18 Accuracy of Information, etc 37
4.19 Security Documents 38
4.20 Solvency 38
4.21 Year 2000 Matters 38
SECTION 5. CONDITIONS PRECEDENT 38
5.1 Conditions to Effectiveness 38
5.2 Conditions to Initial Extension of Credit 39
5.3 Conditions to Each Extension of Credit 41
SECTION 6. AFFIRMATIVE COVENANTS 41
6.1 Financial Statements 41
6.2 Certificates; Other Information 42
6.3 Payment of Obligations 43
6.4 Maintenance of Existence; Compliance 43
6.5 Maintenance of Property; Insurance 44
6.6 Inspection of Property; Books and Records; Discussions 44
6.7 Notices 44
6.8 Environmental Laws 44
6.9 Additional Collateral, etc 45
SECTION 7. NEGATIVE COVENANTS 46
7.1 Financial Condition Covenants 46
7.2 Indebtedness 47
7.3 Liens 48
7.4 Fundamental Changes 49
7.5 Disposition of Property 50
7.6 Restricted Payments 50
7.7 Capital Expenditures 51
7.8 Investments 52
7.9 Optional Payments and Modifications of Certain Debt Instruments. 53
7.10 Transactions with Affiliates 53
7.11 Sales and Leasebacks 53
7.12 Changes in Fiscal Periods 53
7.13 Negative Pledge Clauses 53
7.14 Clauses Restricting Subsidiary Distributions 54
7.15 Lines of Business; Holding Company Status 54
7.16 Modifications to Time Warner Arrangements and Material Rights and Privileges 54
SECTION 8. EVENTS OF DEFAULT 54
SECTION 9. THE AGENTS 57
9.1 Appointment 57
9.2 Delegation of Duties 58
9.3 Exculpatory Provisions 58
9.4 Reliance by Administrative Agent 58
9.5 Notice of Default 58
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
Page
----
<S> <C>
9.6 Non-Reliance on Agents and Other Lenders 59
9.7 Indemnification 59
9.8 Agent in Its Individual Capacity 60
9.9 Successor Administrative Agent 60
9.10 Documentation Agent and Syndication Agent 60
SECTION 10. MISCELLANEOUS 60
10.1 Amendments and Waivers 60
10.2 Notices 61
10.3 No Waiver; Cumulative Remedies 62
10.4 Survival of Representations and Warranties 62
10.5 Payment of Expenses and Taxes 62
10.6 Successors and Assigns; Participations and Assignments 63
10.7 Adjustments; Set-off 65
10.8 Counterparts 66
10.9 Severability 66
10.10 Integration 66
10.11 GOVERNING LAW 66
10.12 Submission To Jurisdiction; Waivers 66
10.13 Acknowledgments 67
10.14 Releases of Guarantees and Liens 67
10.15 Confidentiality 68
10.16 WAIVERS OF JURY TRIAL 68
</TABLE>
-iii-
<PAGE>
ANNEX:
- -----
A Pricing Grid
SCHEDULES:
- ---------
1.1A Commitments
4.4 Consents, Authorizations, Filings and Notices
4.15 Subsidiaries
7.2(d) Existing Indebtedness
7.3(f) Existing Liens
7.10 Affiliate Transactions
EXHIBITS:
- --------
A Form of Guarantee and Collateral Agreement
B Form of Compliance Certificate
C Form of Closing Certificate
D-1 New Lender Supplement
D-2 Increased Facility Activation Notice
E Form of Assignment and Acceptance
F Form of Exemption Certificate
<PAGE>
CREDIT AGREEMENT, dated as of April 10, 2000, among Time Warner
Telecom Inc., a Delaware corporation ("TWTC"), Time Warner Telecom Holdings
----
Inc., a Delaware corporation (the "Borrower"), the several banks and other
--------
financial institutions or entities from time to time parties to this Agreement
(the "Lenders"), ABN AMRO BANK N.V., as documentation agent (in such capacity,
-------
the "Documentation Agent"), BANK OF AMERICA, N.A., as syndication agent (in such
-------------------
capacity, the "Syndication Agent"), and THE CHASE MANHATTAN BANK ("Chase" and,
----------------- -----
in such capacity, the "Administrative Agent"), as administrative agent.
--------------------
W I T N E S S E T H:
- - - - - - - - - - -
WHEREAS, the Borrower has requested the Lenders to make available the
credit facilities described herein; and
WHEREAS, the Lenders are willing to make credit facilities available
to the Borrower upon and subject to the terms and conditions hereinafter set
forth;
NOW, THEREFORE, in consideration of the premises and the agreements
hereinafter set forth, the parties hereby agrees as follows:
I. SECTION 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 1/16th of 1%) equal to the greatest of (i) the Prime Rate in effect
on such day, (ii) the Three-Month Secondary CD Rate (adjusted for statutory
reserve requirements) plus 1% and (iii) the Federal Funds Effective Rate from
----
time to time plus 0.5%. Any change in the ABR due to a change in the Prime
----
Rate, the Three-Month Secondary CD 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, the Three-Month Secondary CD Rate or the Federal Funds
Effective Rate, respectively.
"ABR Loans": Loans the rate of interest applicable to which is based
---------
upon the ABR.
"Additional Extensions of Credit": as defined in Section 10.1.
-------------------------------
"Adjustment Date": as defined in the 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 Syndication Agent, the
------
Documentation Agent and the Administrative Agent.
<PAGE>
"Aggregate Exposure": with respect to any Lender at any time, an
------------------
amount equal to 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 Credit Agreement, as amended, supplemented or
---------
otherwise modified from time to time.
"Annualized Consolidated EBITDA": for any fiscal quarter, an amount
------------------------------
equal to Consolidated EBITDA for such period multiplied by four.
-------------
"Applicable Margin": means, for any day, with respect to any ABR
-----------------
Loan or Eurodollar Loan, as the case may be, the applicable rate per annum set
forth in the Pricing Grid; provided that prior to the first Adjustment Date such
--------
applicable rate shall be 1.00% and 2.00%, respectively.
"Application": an application, in such form as the Issuing Lender may
-----------
specify from time to time, requesting the Issuing Lender to open a Letter of
Credit.
"Approved Fund": with respect to any Lender that is a fund that
-------------
invests in commercial loans, any other fund that invests in commercial loans and
is managed or advised by the same investment advisor as such Lender or by an
Affiliate of such investment advisor.
"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 any Subsidiary of TWTC and (b) any such Disposition
(i) permitted by clause (a), (b), (c) , (d) or (e) of Section 7.5 or (ii) in
connection with any issuance or sale of the Capital Stock of TWTC) that yields
gross proceeds to TWTC, the Borrower or any of its Subsidiaries (valued at the
initial principal amount thereof in the case of non-cash proceeds consisting of
notes or other debt securities or at the accreted amount thereof in the case of
zero coupon or discount notes or other debt securities and valued at fair market
value in the case of other non-cash proceeds) in excess of $5,000,000.
"Assignee": as defined in Section 10.6(c).
--------
"Assignment and Acceptance": an Assignment and Acceptance,
-------------------------
substantially in the form of Exhibit E.
"Assignor": as defined in Section 10.6(c).
--------
"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.
--------
<PAGE>
"Borrowing Date": any Business Day specified by the Borrower as a
--------------
date on which the Borrower requests the relevant Lenders to make Loans
hereunder.
"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 Expenditures": for any period, with respect to any Person,
--------------------
the aggregate of all expenditures by such Person and its Subsidiaries for the
acquisition or leasing (pursuant to a capital lease) of fixed or capital assets
or additions to equipment (including replacements, capitalized repairs and
improvements during such period) that should be capitalized under GAAP on a
consolidated balance sheet of such Person and its Subsidiaries.
"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.
"Capital Stock": any and all shares, interests, participations or
-------------
other equivalents (however designated) of capital stock of a corporation, any
and all equivalent ownership interests in a Person (other than a corporation)
and any and all warrants, rights or options to purchase any of the foregoing.
"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 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 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
substantially exclusively in assets satisfying the requirements of clauses (a)
through (f) of this definition.
<PAGE>
"Chase": as defined in the preamble hereto.
-----
"Closing Date": the date on which the conditions precedent set forth
------------
in Section 5.1 shall have been satisfied, which date is April 10, 2000.
"Code": the Internal Revenue Code of 1986, as amended from time to
----
time.
"Collateral": all property of the Loan Parties, now owned or
----------
hereafter acquired, upon which a Lien is purported to be created by any Security
Document.
"Commitment": as to any Lender, the sum of the Revolving Commitment
----------
and the Incremental Commitment, if any, of such Lender.
"Commitment Fee Rate": the per annum rate determined in accordance
-------------------
with the Pricing Grid.
"Commonly Controlled Entity": an entity, whether or not incorporated,
--------------------------
that together with the Borrower is treated as a single employer under Section
414(b) or (c) of the Code or, solely for purposes of Section 302 of ERISA and
Section 412 of the Code, 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 hereunder otherwise
required to be made by such Lender and designated by such Lender in a written
instrument, subject to the consent of the Administrative Agent and the Borrower
(which consent, in each case, shall not be unreasonably withheld); 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 hereunder.
"Confidential Information Memorandum": the Confidential Information
-----------------------------------
Memorandum dated March 2000 and furnished to the Lenders.
"Consolidated Current Assets": at any date, all amounts (other than
---------------------------
cash and Cash Equivalents) that would, in conformity with GAAP, be set forth
opposite the caption "total current assets" (or any like caption) on a
consolidated balance sheet of TWTC and its Subsidiaries at such date.
"Consolidated Current Liabilities": at any date, all amounts that
--------------------------------
would, in conformity with GAAP, be set forth opposite the caption "total current
liabilities" (or any like caption) on a consolidated balance sheet of TWTC and
its Subsidiaries at such date, but excluding (a) the current portion of any
Funded Debt of the Borrower and its Subsidiaries and (b) without duplication of
clause (a) above, all Indebtedness consisting of Revolving Loans or Swingline
Loans to the extent otherwise included therein.
"Consolidated Debt Service Coverage Ratio": as of the last day of any
----------------------------------------
fiscal period, the ratio of (a) Consolidated EBITDA determined for the period of
four consecutive fiscal quarters ending on
<PAGE>
such day to (b) the sum of (i) Consolidated Interest Expense for the period of
four consecutive fiscal quarters ending on such day and (ii) scheduled principal
payments on Indebtedness of TWTC and any of its Subsidiaries for the period of
four consecutive fiscal quarters commencing immediately after such day (or, in
the case of the Loans, the excess, if any, of the amount of the Revolving Loans
then in effect over the amount of the Total Revolving Commitments scheduled to
be in effect at the end of such period of four consecutive fiscal quarters).
"Consolidated EBITDA": for any period, Consolidated Net Income for
-------------------
such period plus, without duplication and to the extent reflected as a charge in
----
the statement of such Consolidated Net Income for such period, the sum of (a)
income tax expense, (b) interest expense, amortization or writeoff of debt
discount and debt issuance costs and commissions, discounts and other fees and
charges associated with Indebtedness (including the Loans), (c) depreciation and
amortization expense, (d) amortization of intangibles (including, but not
limited to, goodwill) and organization costs, (e) any extraordinary, unusual or
non-recurring non-cash expenses or losses (including, whether or not otherwise
includable as a separate item in the statement of such Consolidated Net Income
for such period, non-cash losses on sales of assets outside of the ordinary
course of business), provided, that the amounts referred to in this clause (e)
--------
shall not, in the aggregate, exceed $20,000,000 for any fiscal year of TWTC, and
minus, to the extent included in the statement of such Consolidated Net Income
- -----
for such period, the sum of (a) interest income, (b) any extraordinary, unusual
or non-recurring income or gains (other than any reciprocal compensation income
or gains to the extent included in operating income), including, whether or not
otherwise includable as a separate item in the statement of such Consolidated
Net Income for such period, gains on the sales of assets outside of the ordinary
course of business.
"Consolidated Interest Coverage Ratio": for any period, the ratio of
------------------------------------
(a) Consolidated EBITDA for such period to (b) Consolidated Interest Expense for
such period.
"Consolidated Interest Expense": for any period, total cash interest
-----------------------------
expense (including that attributable to Capital Lease Obligations) of TWTC and
its Subsidiaries for such period with respect to all outstanding Indebtedness of
TWTC and its Subsidiaries (including all commissions, discounts and other fees
and charges owed with respect to letters of credit and bankers' acceptance
financing and net costs under Hedge Agreements, less any net receipts, in
respect of interest rates to the extent such net costs are allocable to such
period in accordance with GAAP and less interest income and capitalized
interest).
"Consolidated Leverage Ratio": as of any day, the ratio of (a)
---------------------------
Consolidated Net Total Debt on such day to (b) Annualized Consolidated EBITDA
for the most recent complete fiscal quarter of TWTC.
"Consolidated Net Income": for any period, the consolidated net
-----------------------
income (or loss) of TWTC and its Subsidiaries, determined on a consolidated
basis in accordance with GAAP; provided that there shall be excluded (a) the
--------
income (or deficit) of any Person accrued prior to the date it becomes a
Subsidiary of TWTC or is merged into or consolidated with TWTC or any of its
Subsidiaries, (b) the income (or deficit) of any Person (other than a Subsidiary
of TWTC) in which TWTC or any of its Subsidiaries has an ownership interest,
except to the extent that any such income is actually received by TWTC or such
Subsidiary in the form of dividends or similar distributions and (c) the
undistributed earnings of any Subsidiary of TWTC 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.
<PAGE>
6
"Consolidated Net Total Debt": as of any day, the excess of (i)
---------------------------
Consolidated Total Debt at such date over (ii) the aggregate amount of cash and
Cash Equivalents reflected on a consolidated balance sheet of TWTC at such date
in excess of $50,000,000.
"Consolidated Total Debt": at any date, the aggregate principal
-----------------------
amount of all Indebtedness (other than, 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) of TWTC and its Subsidiaries at
such date, determined on a consolidated basis in accordance with GAAP.
"Consolidated Working Capital": at any date, the excess of
----------------------------
Consolidated Current Assets on such date over Consolidated Current Liabilities
----
on such date.
"Continuing Directors": the directors of TWTC on the Closing Date and
--------------------
each other director, if, in each case, such other director's nomination for
election to the board of directors of TWTC is recommended by at least a majority
of the then Continuing Directors or such other director receives the vote of the
Permitted Investors in his or her election by the shareholders of TWTC.
"Contractual Obligation": as to any Person, any provision of any
----------------------
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.
"Control Investment Affiliate": as to any Person, any other Person
----------------------------
that (a) directly or indirectly, is in control of, is controlled by, or is under
common control with, such Person and (b) is organized by such Person primarily
for the purpose of making equity or debt investments in one or more companies.
For purposes of this definition, "control" of a Person means the power, directly
or indirectly, to direct or cause the direction of the management and policies
of such Person whether by contract or otherwise.
"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 Lenders": as defined in Section 5.1(a).
------------------
"Disposition": with respect to any property, any sale, lease, sale
-----------
and leaseback, 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.
-----------
"Documentation Agent": as defined in the preamble hereto.
-------------------
"Dollars" and "$": dollars in lawful currency of the United States.
------- -
"Domestic Subsidiary": any Subsidiary of TWTC organized under the
-------------------
laws of any jurisdiction within the United States.
"Environmental Laws": any and all applicable 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 (as relating to
exposure to Materials of Environmental Concern) or the environment.
"ERISA": the Employee Retirement Income Security Act of 1974, as
-----
amended from time to time.
"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
<PAGE>
7
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 Dow Jones Markets 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 Dow Jones Markets 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 the rate of interest applicable to which is
----------------
based upon the Eurodollar Rate.
"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.
"Excess Cash Flow": for any fiscal year of TWTC, the excess, if any,
----------------
of (a) the sum, without duplication, of (i) Consolidated Net Income for such
fiscal year, (ii) an amount equal to the amount of all non-cash charges
(including depreciation and amortization) deducted in arriving at such
Consolidated Net Income, (iii) decreases in Consolidated Working Capital for
such fiscal year, and (iv) an amount equal to the aggregate net non-cash loss on
the Disposition of property by TWTC and its Subsidiaries during such fiscal year
(other than sales of inventory in the ordinary course of business), to the
extent deducted in arriving at such Consolidated Net Income over (b) the sum,
----
without duplication, of (i) an amount equal to the amount of all non-cash
credits included in arriving at such Consolidated Net Income, (ii) Capital
Expenditures (excluding the principal amount of Indebtedness incurred in
connection with such expenditures permitted by Section 7.2(e) and any such
expenditures financed with the proceeds of any Reinvestment Deferred Amount),
(iii) the amount of Investments (other than Investments in Cash Equivalents)
made during such fiscal year pursuant to Section 7.8 to the extent such
Investments were financed with internally generated cash flow of TWTC and its
Subsidiaries, (iv) the aggregate amount of all principal payments of Funded Debt
of TWTC and its Subsidiaries made during such fiscal year (other
<PAGE>
8
than in respect of any revolving credit facility to the extent there is not an
equivalent permanent reduction in commitments thereunder), (v) increases in
Consolidated Working Capital for such fiscal year, and (vi) an amount equal to
the aggregate net non-cash gain on the Disposition of property by TWTC and its
Subsidiaries during such fiscal year (other than sales of inventory in the
ordinary course of business), to the extent included in arriving at such
Consolidated Net Income.
"Excess Cash Flow Application Date": as defined in Section 2.9(b).
---------------------------------
"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 (a) exchanges involving the transfer or acquisition (or both transfer
and acquisition) of Capital Stock of a Person so long as 100% of the Capital
Stock of such Person is transferred or acquired, as the case may be, and (b)
fiber capacity swaps. 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 so long as the aggregate consideration received by any Subsidiary of
TWTC in connection with such exchange represents fair market value for the
assets and cash being transferred by TWTC and its Subsidiaries.
"Excluded Foreign Subsidiary": any Foreign Subsidiary in respect of
---------------------------
which either (a) the pledge of all of the Capital Stock of such Subsidiary as
Collateral or (b) the guaranteeing by such Subsidiary of the Obligations, would,
in the good faith judgment of the Borrower, result in adverse tax consequences
to the Borrower.
"Expiration Date": as defined in the definition of the term
---------------
"Redeemable Stock".
"Facility": each of the Revolving Commitments and the extensions of
--------
credit made thereunder and the Incremental Commitments and the Incremental Loans
made thereunder, if any.
"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": 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 Reference Lender
from three federal funds brokers of recognized standing selected by it.
"Foreign Subsidiary": any Subsidiary of TWTC that is not a Domestic
------------------
Subsidiary.
"Funded Debt": as to any Person, all Indebtedness of such Person that
-----------
matures more than one year from the date of its creation or matures within one
year from such date but is renewable or extendible, at the option of such
Person, to a date more than one year from such date or arises under a revolving
credit or similar agreement that obligates the lender or lenders to extend
credit during a period of more than one year from such date, including all
current maturities and current sinking fund payments in respect of such
Indebtedness whether or not required to be paid within one year from the date of
its creation and, in the case of the Borrower, Indebtedness in respect of the
Loans.
"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.
<PAGE>
9
"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 the date hereof
and consistent with those used in the preparation of the most recent audited
financial statements referred to in Section 4.1. 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 TWTC 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 TWTC'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 TWTC, 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 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.
"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 Guarantee and Collateral
----------------------------------
Agreement to be executed and delivered by TWTC, the Borrower and each Subsidiary
Guarantor, substantially in the form of Exhibit A, as the same may be amended,
supplemented or otherwise modified from time to time.
"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
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.
<PAGE>
10
"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.
"Increased Facility Activation Notice": a notice substantially in the
------------------------------------
form of Exhibit D-2.
"Increased Facility Closing Date": any Business Day designated as
-------------------------------
such in an Increased Facility Activation Notice.
"Incremental Commitments": as defined in Section 2.1(c).
-----------------------
"Incremental Facility": as defined in Section 2.1(c).
--------------------
"Incremental Loans": as defined in Section 2.1(c).
-----------------
"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
current 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 or applicant under or in respect of acceptances, letters of
credit, surety bonds or similar arrangements, (g) the liquidation value of all
Redeemable Stock, (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 7.2 and 8(e) only, all obligations of such Person in respect of
derivative transactions (including, without limitation, Hedge Agreements). The
Indebtedness of any Person shall include 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.
"Indenture": the indenture with respect to TWTC's $400,000,000 9-3/4%
---------
Senior Notes.
"Indenture Indebtedness Basket": as defined in Section 6.2(b).
-----------------------------
"Initial Funding Date": the date on which the conditions precedent
--------------------
set forth in Section 5.2 shall have been satisfied.
"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
<PAGE>
11
infringement or other impairment thereof, including the right to receive all
proceeds and damages therefrom.
"Intercompany Subordinated Note": a promissory note subordinated on
------------------------------
terms and conditions satisfactory to the Administrative Agent, which note, in
any event, (a) shall be subordinated to all other obligations of the Borrower
and TWTC's Subsidiaries, (b) shall not be assignable without the prior written
consent of the Administrative Agent and (c) the principal and interest payments
in respect of which shall not be made unless expressly permitted by Section 7.6.
"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 or six (or, with the
consent of all Lenders, 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 or six 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;
(i) the Borrower may not select an Interest Period for Revolving
Loans that would extend beyond the Revolving Termination Date;
(i) 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
(i) 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 7.8.
-----------
"Issuing Lender": each of Chase 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.
"L/C Commitment": $25,000,000.
--------------
<PAGE>
12
"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": the collective reference to all the Revolving
----------------
Lenders other than the Issuing Lender.
"Lenders": as defined in the preamble hereto; provided, that unless
------- --------
the context otherwise requires, each reference herein to the Lenders shall be
deemed to include any Conduit Lender.
"Letters of Credit": as defined in Section 3.1(a).
-----------------
"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 by any Lender pursuant to this Agreement.
----
"Loan Documents": this Agreement, the Security Documents and the
--------------
Notes.
"Loan Parties": TWTC, the Borrower and each Subsidiary Guarantor that
------------
is a party to a Loan Document.
"Material Adverse Effect": a material adverse effect on (a) the
-----------------------
business, property, operations or financial condition of TWTC and its
Subsidiaries taken as a whole or (b) the validity or enforceability 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, Exchange
-----------------
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) of such Asset
Sale, Exchange or Recovery Event, net of (i) attorneys' fees, accountants' fees,
investment banking fees, 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, Exchange or Recovery Event (other than any
Lien pursuant to a Security Document) and other customary fees and expenses
actually incurred in connection therewith, (ii) 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 (iii)
appropriate amounts to be provided by TWTC, the Borrower or any Subsidiary, as
the case may be, as a reserve required in accordance with GAAP against any
liabilities associated with such Asset Sale, Exchange or Recovery
<PAGE>
13
Event and retained by TWTC, the Borrower or any Subsidiary, as the case may be,
after such Asset Sale, Exchange or Recovery Event, including, without
limitation, pension and other post-employment benefit liabilities and
liabilities under any indemnification obligations associated with such
Disposition and (b) in connection with any issuance or sale of Capital Stock 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.
"New Lender": as defined in Section 2.1(d).
----------
"New Lender Supplement": as defined in Section 2.1(d).
---------------------
"Non-Excluded Taxes": as defined in Section 2.17(a).
------------------
"Non-Executing Persons": as defined in Section 5.1(a).
---------------------
"Non-U.S. Lender": as defined in Section 2.17(d).
---------------
"Notes": the collective reference to any promissory note evidencing
-----
Loans.
"Obligations": the unpaid principal of and interest on (including
-----------
interest accruing after the maturity of the Loans and Reimbursement Obligations
and interest accruing 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) the Loans and Reimbursement Obligations and all
other obligations and liabilities of the Borrower to the Administrative Agent or
to any Lender (or, in the case of Hedge Agreements, any affiliate of any
Lender), 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, this Agreement, any other Loan Document, the Letters of Credit,
any Hedge Agreement entered into with any Lender or any affiliate of any Lender
or any other document made, delivered or given in connection herewith or
therewith, whether on account of principal, interest, reimbursement obligations,
fees, indemnities, costs, expenses (including all fees, charges and
disbursements of counsel to the Administrative Agent or to any Lender that are
required to be paid by the Borrower pursuant hereto) or otherwise.
"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(b).
-----------
"PBGC": the Pension Benefit Guaranty Corporation established pursuant
----
to Subtitle A of Title IV of ERISA (or any successor).
"Permitted Investors": the collective reference to Time Warner Inc.,
-------------------
including any successor thereto pursuant to a merger with AOL, Inc., and its
Control Investment Affiliates.
"Permitted Line of Business": as defined in Section 7.15(a).
--------------------------
<PAGE>
14
"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 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.
"Pledgor": TWTC, in its capacity as pledgor.
-------
"Pricing Grid": the pricing grid attached hereto as Annex A.
------------
"Prime Rate": the rate of interest per annum publicly announced from
----------
time to time by the Reference Lender 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 Reference Lender in connection with
extensions of credit to debtors).
"Projections": as defined in Section 6.2(c).
-----------
"Properties": as defined in Section 4.17(a).
----------
"Qualified Preferred Stock": any preferred stock of a Person that (i)
-------------------------
does not qualify as Redeemable Stock and (ii) does not pay any cash dividends at
any time prior to the Expiration Date.
"Recovery Event": any settlement of or payment in respect of any
--------------
property or casualty insurance claim or any condemnation proceeding relating to
any asset of TWTC, the Borrower or any of their Subsidiaries.
"Redeemable Stock": any class or series of Capital Stock of any
----------------
Person that by its terms or otherwise is (i) required to be redeemed prior to
the date (the "Expiration Date") which is one year after the final maturity date
---------------
of the Loans and the expiration of the Commitments hereunder, (ii) redeemable at
the option of the holder of such class or series of Capital Stock at any time
prior to the Expiration Date or (iii) convertible into or exchangeable for
(unless solely at the option of such person) Capital Stock referred to in clause
(i) or (ii) above or Indebtedness having a scheduled maturity prior to the
Expiration Date; provided, that no Capital Stock shall constitute Redeemable
--------
Stock as a result of containing provisions that give holders the right to
require such Person to repurchase or redeem such Capital Stock upon the
occurrence of (x) a "change of control" (or similar event, however defined) or
(y) the sale of all or substantially all of such Person's assets (or similar
event, however defined).
"Reference Lender": The Chase Manhattan Bank.
----------------
"Refunded Swingline Loans": as defined in Section 2.5.
------------------------
"Refunding Date": as defined in Section 2.5.
--------------
"Register": as defined in Section 10.6(d).
--------
"Regulation U": Regulation U of the Board as in effect from time to
------------
time.
"Reimbursement Obligation": the obligation of the Borrower to
------------------------
reimburse the Issuing Lender pursuant to Section 3.5 for amounts drawn under
Letters of Credit.
"Reinvestment Deadline": as defined in the definition of
---------------------
"Reinvestment Notice".
<PAGE>
15
"Reinvestment Deferred Amount": with respect to any Reinvestment
----------------------------
Event, the aggregate Net Cash Proceeds received by TWTC, the Borrower or any of
their Subsidiaries in connection therewith that are not applied to reduce the
Revolving Commitments pursuant to Section 2.9(a) as a result of the delivery of
a Reinvestment Notice.
"Reinvestment Event": any Asset Sale, Exchange or Recovery Event in
------------------
respect of which the Borrower has delivered a Reinvestment Notice.
"Reinvestment Notice": a written notice executed by a Responsible
-------------------
Officer stating that (a) no Event of Default has occurred and is continuing and
(b) TWTC (directly or indirectly through a Subsidiary) intends and expects to
use all or a specified portion of the Net Cash Proceeds of an Asset Sale,
Exchange or Recovery Event to acquire or repair assets useful in its business on
or prior to the later of (i) the date occurring twelve months after the date of
receipt of such Net Cash Proceeds and (ii) the date occurring eighteen months
after the date of receipt of such Net Cash Proceeds so long as such Net Cash
Proceeds were committed to be reinvested within twelve months following the
receipt thereof (such later date, the "Reinvestment Deadline").
---------------------
"Reinvestment Prepayment Amount": with respect to any Reinvestment
------------------------------
Event, the Reinvestment Deferred Amount relating thereto less any amount
expended prior to the relevant Reinvestment Prepayment Date to acquire or repair
assets useful in TWTC's business.
"Reinvestment Prepayment Date": with respect to any Reinvestment
----------------------------
Event, the earlier of (a) the relevant Reinvestment Deadline and (b) the date on
which TWTC shall have determined not to, or shall have otherwise ceased to,
acquire or repair assets useful in TWTC's business with all or any portion of
the relevant Reinvestment Deferred Amount.
"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.
"Required Lenders": at any time, the holders of more than 50% of the
----------------
sum of (a) the Total Revolving Commitments then in effect or, if the Revolving
Commitments have been terminated, the Total Revolving Extensions of Credit then
outstanding and (b) the Incremental Commitments, if any, then in effect or, if
the Incremental Commitments have been terminated, the aggregate principal amount
of the Incremental Loans, if any, then outstanding.
"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,
-------------------
treasurer, chief financial officer or chief accounting officer of TWTC or the
Borrower, as applicable, but in any event, with respect to financial matters,
the chief financial officer of TWTC or the Borrower, as applicable.
"Restricted Payments": as defined in Section 7.6.
-------------------
<PAGE>
16
"Revolving Aggregate Committed Amount": the sum of the Total
------------------------------------
Revolving Commitments as in effect on the Closing Date and the amount of any
increases therein effected pursuant to Section 2.1(b).
"Revolving Commitment": as to any Lender, the obligation of such
--------------------
Lender, if any, to make Revolving Loans and participate in Swingline Loans and
Letters of Credit in an aggregate principal and/or face amount not to exceed the
amount set forth under the heading "Revolving Commitment" opposite such Lender's
name on Schedule 1.1A or in the Assignment and Acceptance pursuant to which such
Lender became a party hereto, as the same may be changed from time to time
pursuant to the terms hereof. The original amount of the Total Revolving
Commitments is $475,000,000.
"Revolving Commitment Period": the period from and including the
---------------------------
Closing Date to 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 Lender": each Lender that has a Revolving Commitment or
----------------
that holds Revolving Loans.
"Revolving Loans": as defined in Section 2.1(a).
---------------
"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": December 31, 2007.
--------------------------
"SEC": the Securities and Exchange Commission, any successor thereto
---
and any analogous Governmental Authority.
"Security Documents": the collective reference to the Guarantee and
------------------
Collateral Agreement and all other security documents hereafter delivered to the
Administrative Agent granting a Lien on any property of any Person to secure the
obligations and liabilities of any Loan Party under any Loan Document.
"Senior Notes": the 9-3/4% Senior Notes issued under the Indenture.
------------
"Shell Subsidiary": any Subsidiary of TWTC that is a "shell" company
----------------
having (a) assets (either directly or through any Subsidiary or other Capital
Stock) with an aggregate value not exceeding $10,000 and (b) no operations.
"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" after giving effect to the
expected value of rights of indemnity, contribution and subrogation, as of such
date, as such quoted
<PAGE>
17
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 after giving effect to the
expected value of rights of indemnity, contribution and subrogation, (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 after giving effect to the expected value of rights of
indemnity, contribution and subrogation. 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,
contingent, matured or unmatured, disputed, undisputed, secured or unsecured.
"Specified Change of Control": a "Change of Control" as defined in
---------------------------
the Indenture.
"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. Unless otherwise qualified,
all references to a "Subsidiary" or to "Subsidiaries" in this Agreement shall
refer to a Subsidiary or Subsidiaries of TWTC.
"Subsidiary Guarantor": each Subsidiary of TWTC other than the
--------------------
Borrower and any Excluded Foreign Subsidiary.
"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 $15,000,000.
"Swingline Lender": The Chase Manhattan 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.
------------------------------
"Syndication Agent": as defined in the preamble hereto.
-----------------
"Three-Month Secondary CD Rate": for any day, the secondary market
-----------------------------
rate for three-month certificates of deposit reported as being in effect on such
day (or, if such day shall not be a Business Day, the next preceding Business
Day) by the Board through the public information telephone line of the Federal
Reserve Bank of New York (which rate will, under the current practices of the
Board, be published in Federal Reserve Statistical Release H.15(519) during the
week following such day), or, if such rate shall not be so reported on such day
or such next preceding Business Day, the average of the secondary market
quotations for three-month certificates of deposit of major money center banks
in New York City received at approximately 10:00 A.M., New York City time, on
such day (or, if such day shall
<PAGE>
18
not be a Business Day, on the next preceding Business Day) by the Reference
Lender from three New York City negotiable certificate of deposit dealers of
recognized standing selected by it.
"Time Warner Arrangements": the collective reference to the capacity
------------------------
license of optical fibers and other property from Time Warner Cable, the
facilities lease and services arrangements and the naming license agreement
between TWTC and Time Warner Inc. and its affiliates.
"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 of the Revolving Lenders
outstanding at such time.
"Transferee": any Assignee or Participant.
----------
"TWTC": as defined in the preamble hereto.
----
"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 Capital Stock of which (other than directors' qualifying shares required by
law) is owned by such Person directly and/or through other Wholly Owned
Subsidiaries.
"Wholly Owned Subsidiary Guarantor": any Subsidiary Guarantor that is
---------------------------------
a Wholly Owned Subsidiary of TWTC.
(a) Other Definitional Provisions. 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.
(a) 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 TWTC, 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), and (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, Capital Stock, securities, revenues,
accounts, leasehold interests and contract rights.
(a) 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.
(a) The meanings given to terms defined herein shall be equally
applicable to both the singular and plural forms of such terms.
<PAGE>
19
1. SECTION AMOUNT AND TERMS OF COMMITMENTS
1.1 Commitments; Additional Commitments; Incremental Facility.
---------------------------------------------------------
(a) 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.
(b) The Borrower and any one or more Lenders (including New Lenders)
may, with the consent of the Administrative Agent, at any time after the Closing
Date and prior to the fourth anniversary thereof, agree that such Lenders shall
obtain or increase the amount of their Revolving Commitments by executing and
delivering to the Administrative Agent an Increased Facility Activation Notice
specifying (i) the amount of such increase and (ii) the applicable Increased
Facility Closing Date. Notwithstanding the foregoing, without the consent of
the Required Lenders, (i) the Total Revolving Commitments may not be increased
by more than $150,000,000 (minus the amount of any Incremental Loans provided
-----
under Section 2.1(c) below), (ii) each increase effected pursuant to this
paragraph shall be in a minimum amount of at least $5,000,000 and (iii) no more
than five Increased Facility Closing Dates may be selected by the Borrower
during the term of this Agreement. 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) As an alternative or in addition to Section 2.1(b) above, the
Borrower and any one or more Lenders (including New Lenders) may, with the
consent of the Administrative Agent, at any time after the Closing Date and
prior to the fourth anniversary thereof, agree that such Lenders shall make an
additional loan facility (the "Incremental Facility"; the commitments
--------------------
thereunder, the "Incremental Commitments" and the loans thereunder, the
-----------------------
"Incremental Loans") available to the Borrower. Such Incremental Facility may
-----------------
be documented by a supplement to this Agreement signed by the Borrower, the
Administrative Agent and the Lenders party thereto. Notwithstanding the
foregoing, without the consent of the Required Lenders, (i) the aggregate amount
of the Incremental Facility shall not exceed $150,000,000 (minus the amount of
-----
any additional Revolving Commitments provided under Section 2.1(b) above), (ii)
the Incremental Loans shall not have a stated maturity prior to the date that is
six months after the Revolving Termination Date, (iii) the Incremental Loans
shall not have a weighted average life less than the Revolving Loans, (iv) the
Incremental Facility shall not contain covenants that are more restrictive than
the covenants set forth herein and (v) after giving effect to such Incremental
Facility and the borrowings contemplated thereunder, no Default or Event of
Default shall have occurred and be continuing. 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(b) or
2.1(c) shall execute a New Lender Supplement (each, a "New Lender Supplement"),
---------------------
substantially in the form of Exhibit D-1, whereupon such bank, financial
institution or other entity (a "New Lender")
----------
<PAGE>
20
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.
(e) Unless otherwise agreed by the Administrative Agent, the Borrower
shall borrow Revolving Loans under the additional Revolving Commitments provided
under Section 2.1(b) above from each Lender participating in the relevant
increase in an amount determined by reference to the amount of each Type of Loan
(and, in the case of Eurodollar Loans, of each Eurodollar Tranche) which would
then have been outstanding from such Lender if (i) each such Type or Eurodollar
Tranche had been borrowed or effected on such Increased Facility Closing Date
and (ii) the aggregate amount of each such Type or Eurodollar Tranche requested
to be so borrowed or effected had been proportionately increased. The
Eurodollar Base Rate applicable to any Eurodollar Loan borrowed pursuant to the
preceding sentence shall equal the Eurodollar Base Rate then applicable to the
Eurodollar Loans of the other Lenders in the same Eurodollar Tranche (or, until
the expiration of the then-current Interest Period, such other rate as shall be
agreed upon between the Borrower and the relevant Lender).
1.1 Procedure for Borrowing. In order to effect a borrowing
-----------------------
hereunder, the Borrower shall give the Administrative Agent irrevocable notice
(which notice must be received by the Administrative Agent prior to 2:00 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 (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 (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 Available Revolving Commitments are less than $5,000,000, such lesser
amount) and (y) in the case of Eurodollar Loans, $5,000,000 or a whole multiple
of $1,000,000 in excess thereof; provided, that the 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. Upon receipt of
such notice the Administrative Agent shall promptly notify each Lender thereof.
Not later than 12:00 Noon, New York City time, on the Borrowing Date requested
by the Borrower, each Lender shall make available to the Administrative Agent at
the Funding Office an amount in immediately available funds equal to the Loan to
be made by such Lender. The Administrative Agent shall credit the account of
the Borrower on the books of such office of the Administrative Agent with the
aggregate of the amounts made available to the Administrative Agent by the
Lenders in immediately available funds.
1.1 Repayment of Loans. (a) The Total Revolving Commitments shall
------------------
be permanently reduced the last day of each fiscal year set forth below by an
aggregate amount equal to the percentage of the Revolving Aggregate Committed
Amount set forth opposite such date:
Fiscal Year Percentage
------------------------------------------
2004 5.0%
2005 15.0%
2006 30.0%
2007 50.0%
(b) (i) Any reduction or termination of the Revolving Commitments
pursuant to this Section 2.3 shall be accompanied by prepayment of the Revolving
Loans and/or Swingline Loans to the extent that the Total Revolving Extensions
of Credit exceed the amount of the Total Revolving Commitments after giving
effect thereto, provided that if the aggregate principal amount of Revolving
--------
Loans and Swingline Loans then outstanding is less than the amount of such
excess (because L/C Obligations constitute a portion thereof), the Borrower
shall, to the extent of the balance of such excess, replace outstanding Letters
of Credit and/or deposit an amount in cash in a cash collateral account
established with the Administrative Agent for the benefit of the Lenders on
terms and conditions satisfactory to the Administrative Agent. The application
of any prepayment pursuant to this paragraph
<PAGE>
21
shall be made, first, to ABR Loans and, second, to Eurodollar Loans. Each
----- ------
prepayment of the Loans under this paragraph (other than ABR Loans and Swingline
Loans) shall be accompanied by accrued interest to the date of such prepayment
on the amount prepaid.
(ii) The Borrower shall repay all outstanding Revolving Loans on the
Revolving Termination Date.
(a) 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 swing line loans ("Swingline
---------
Loans") to the Borrower; provided that (i) the aggregate principal amount
- ----- --------
Swingline Loans outstanding at any time shall not exceed the Swingline of
Commitment then in 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 (ii) 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.
(a) The Borrower shall repay all outstanding Swingline Loans on the Revolving
Termination Date.
(a) Procedure for Swingline Borrowing; Refunding of Swingline Loans.
---------------------------------------------------------------
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 2:00 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 $500,000
or a whole multiple of $100,000 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 (unless in the notice of borrowing the Borrower
gives instructions that the funds shall be wired to another account, in which
case the funds shall be so wired to the designated account prior to 3:00 P.M.,
New York City time).
(a) The Swingline Lender, at any time and from time to time in its
sole and absolute discretion 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 12:00 Noon, 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 Revolving 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 10:00 A.M., 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
<PAGE>
22
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.
(a) 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(f)
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) (the "Refunding Date"),
--------------
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.
(a) 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 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.
(a) 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.
(a) Commitment Fees, etc. The Borrower agrees to pay to the
---------------------
Administrative Agent for the account of each Revolving Lender a commitment fee
for the period from and including the Closing Date to the last day of the
Revolving Commitment Period, computed at the Commitment Fee Rate on the average
daily amount of the Available Revolving Commitment of such Lender during the
period for which payment is made, payable quarterly in arrears on the last day
of each March, June, September and December and on the Revolving Termination
Date, commencing on the first of such dates to occur after the date hereof.
(a) 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.
1.1 Optional Termination or Reduction of Revolving Commitments.
----------------------------------------------------------
The Borrower shall have the right, upon notice (or, when accompanied by a
prepayment of ABR Loans or Eurodollar Loans, not less than one or three Business
Days' notice, respectively) to the Administrative Agent, to terminate the
Revolving Commitments or, from time to time, to reduce the amount of the
Revolving
<PAGE>
23
Commitments; provided that no such termination or reduction of Revolving
--------
Commitments shall be permitted if, after giving effect thereto and to any
prepayments of the Revolving Loans and 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
$1,000,000, or a whole multiple thereof, and shall reduce permanently the
Revolving Commitments then in effect.
1.1 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,
upon irrevocable notice delivered to the Administrative Agent at least three
Business Days prior thereto in the case of Eurodollar Loans and 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 (except in the
case of Revolving Loans that are ABR Loans and Swingline Loans) accrued interest
to such date on the amount prepaid. Partial prepayments of Revolving Loans
shall be in an aggregate principal amount of $1,000,000 or a whole multiple
thereof. Partial prepayments of Swingline Loans shall be in an aggregate
principal amount of $100,000 or a whole multiple thereof.
1.1 Additional Mandatory Prepayments and Commitment Reductions.
----------------------------------------------------------
Until the date on which the ratio of Consolidated Total Debt on such day to
Annualized Consolidated EBITDA for the most recent complete fiscal quarter of
TWTC is less than 4.00 to 1.0, the following mandatory prepayment provisions
shall be applicable and the Borrower shall apply the following amounts to the
permanent reduction of the Revolving Commitments:
(a) If on any date TWTC or any of its Subsidiaries shall receive Net
Cash Proceeds from any Asset Sale, Exchange or Recovery Event (which Net Cash
Proceeds, in the case of a Recovery Event, exceed $1,000,000) then, unless a
Reinvestment Notice shall be delivered in respect thereof, such Net Cash
Proceeds shall be applied within three Business Days after such date toward the
prepayment of the Loans and the reduction of the Revolving Commitments as set
forth in Section 2.7; provided, that, notwithstanding the foregoing, (i) the
--------
aggregate Net Cash Proceeds of Asset Sales, Exchanges and Recovery Events that
may be excluded from the foregoing requirement pursuant to a Reinvestment Notice
shall not exceed $30,000,000 at any time (after giving effect to any actual
reinvestment of such Net Cash Proceeds in accordance with a Reinvestment Notice)
and (ii) on each Reinvestment Prepayment Date, an amount equal to the
Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event
shall be applied toward the reduction of the Revolving Commitments as set forth
in this Section 2.9.
(b) If, for any fiscal year of TWTC commencing with the fiscal year
following the third anniversary of the Closing Date, there shall be Excess Cash
Flow, the Borrower shall, on the relevant Excess Cash Flow Application Date,
apply an amount equal to 50% of such Excess Cash Flow toward the prepayment of
the Loans and the reduction of the Revolving Commitments as set forth in Section
2.7. Each such prepayment and commitment reduction shall be made on a date (an
"Excess Cash Flow Application Date") no later than five Business Days after the
---------------------------------
earlier of (i) the date on which the financial statements of TWTC referred to in
Section 6.1(a), for the fiscal year with respect to which such prepayment is
made, are required to be delivered to the Lenders and (ii) the date such
financial statements are actually delivered.
<PAGE>
24
(c) Amounts to be applied in connection with prepayments and
Revolving Commitment reductions made pursuant to Section 2.9 shall be applied to
reduce permanently the Revolving Commitments. Any such reduction of the
Revolving Commitments shall be accompanied by prepayment of the Revolving Loans
and/or Swingline Loans to the extent, if any, that the Total Revolving
Extensions of Credit exceed the amount of the Total Revolving Commitments as so
reduced, provided that if the aggregate principal amount of Revolving Loans and
--------
Swingline Loans then outstanding is less than the amount of such excess (because
L/C Obligations constitute a portion thereof), the Borrower shall, to the extent
of the balance of such excess, replace outstanding Letters of Credit and/or
deposit an amount in cash in a cash collateral account established with the
Administrative Agent for the benefit of the Lenders on terms and conditions
satisfactory to the Administrative Agent. The application of any prepayment
pursuant to Section 2.9 shall be made, first, to ABR Loans and, second, to
----- ------
Eurodollar Loans. Each prepayment of the Loans under Section 2.9 (except in the
case of Revolving Loans that are ABR Loans and Swingline Loans) shall be
accompanied by accrued interest to the date of such prepayment on the amount
prepaid.
(a) Conversion and Continuation Options. 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 from time to time to convert ABR Loans to Eurodollar Loans by
giving the Administrative Agent at least three Business Days' prior
irrevocable notice of such election (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 and the Administrative Agent or the Required Lenders have determined
in its or their sole discretion not to permit such conversions. Upon receipt of
any such notice the Administrative Agent shall promptly notify each relevant
Lender thereof.
(a) Any Eurodollar Loan may be continued as such upon the expiration
of the then current Interest Period with respect thereto by the Borrower giving
irrevocable notice to the Administrative Agent, 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 no Eurodollar Loan may be continued as such when any Event of Default has
occurred and is continuing and the Administrative Agent has or the Required
Lenders have determined in its or their sole discretion not to permit such
continuations, and provided, further, that if the Borrower shall fail to give
-------- -------
any required notice as described above in this paragraph or if such continuation
is not permitted pursuant to the preceding proviso such Loans shall be
automatically converted to ABR Loans on the last day of such then expiring
Interest Period. Upon receipt of any such notice the Administrative Agent shall
promptly notify each relevant Lender thereof.
1.1 Limitations on Eurodollar Loans. 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 $5,000,000 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.
(a) Interest Rates and Payment Dates. 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.
(a) Each ABR Loan shall bear interest at a rate per annum equal to
the ABR plus the Applicable Margin.
(a) (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), such
<PAGE>
25
overdue amount 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 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 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).
(a) 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.
(a) Computation of Interest and Fees. 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 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.
(a) 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.
1.1 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
(a) the Administrative Agent shall have received notice from the
Required Lenders that the Eurodollar Rate determined or to be determined for
such Interest Period will not adequately and fairly reflect the cost to such
Lenders (as conclusively certified by such Lenders) of making or maintaining
their affected Loans during such Interest Period,
the Administrative Agent shall give telecopy or telephonic notice thereof to the
Borrower and the relevant Lenders as soon as practicable thereafter. If such
notice is given (x) either the Borrower may withdraw any request for a borrowing
of Eurodollar Loans or any Eurodollar Loans 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
<PAGE>
26
Eurodollar Loans shall be made or continued as such, nor shall the Borrower have
the right to convert Loans to Eurodollar Loans.
(a) Pro Rata Treatment and Payments. Each payment by the Borrower on
-------------------------------
account of any commitment fee and any reduction of the Revolving Commitments of
the Lenders shall be made pro rata according to the respective Revolving
--- ----
Percentages, as the case may be, of the relevant Lenders.
(a) 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.
(a) 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 12:00 Noon,
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.
(a) 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.
(a) 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.
<PAGE>
27
(a) Requirements of Law. 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 date hereof:
(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);
(i) 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
(i) 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 actually incurred or reduced amount actually received. If
any Lender becomes entitled to claim any additional amounts pursuant to this
paragraph, it shall promptly (and, in any event, within three months) notify the
Borrower (with a copy to the Administrative Agent) of the event by reason of
which it has become so entitled.
(a) 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 date hereof 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 90 days 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 90-day period shall be
extended to include the period of such retroactive effect.
(a) A certificate, setting forth a reasonably detailed explanation as
to the reason for any additional amounts payable pursuant to this Section, 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.
<PAGE>
28
(a) Taxes. 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.
(a) In addition, the Borrower shall pay any Other Taxes to the
relevant Governmental Authority in accordance with applicable law.
(a) 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.
(a) 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 F 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, or a reduced rate of, 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). Notwithstanding any
other provision of this paragraph, a Non-U.S. Lender shall not be required to
deliver any form pursuant to this paragraph that such Non-U.S. Lender is not
legally able to deliver.
<PAGE>
29
(a) A Lender that is entitled to an exemption from or reduction of
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 or at a reduced rate, 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.
(a) If any payee receives a refund of any Non-Excluded Taxes or Other
Taxes paid by the Borrower under this Section 2.17, which refund in the sole
judgment of such payee is allocable to such payment, such payee shall promptly
pay over to the Borrower the amount of such refund, net of all out-of-pocket
expenses of such payee; provided, however, that the Borrower, upon the request
-------- -------
of such payee, agrees to repay the amount paid over to the Borrower to such
payee in the event such Lender or the Administrative Agent is required to repay
such refund.
(a) The agreements in this Section shall survive the termination of
this Agreement and the payment of the Loans and all other amounts payable
hereunder.
1.1 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.
1.1 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).
<PAGE>
30
1.1 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 not have eliminated,
after requested to do so by the Borrower, 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 Administrative
Agent or any other Lender shall have against the replaced Lender.
1. SECTION LETTERS OF CREDIT
(a) L/C Commitment. Subject to the terms and conditions hereof, the
--------------
Issuing Lender, in reliance on the agreements of the other Revolving Lenders set
forth in Section 3.4(a), agrees to 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 the
Issuing Lender; provided that the Issuing Lender shall not 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) have a face amount of at least $500,000 (unless
otherwise agreed by the Issuing Lender) 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).
(a) The Issuing Lender shall not issue any Letter of Credit hereunder
if such issuance would conflict with, or cause the Issuing Lender or any L/C
Participant to exceed any limits imposed by, any applicable Requirement of Law.
1.1 Procedure for Issuance of Letter of Credit. The Borrower may
------------------------------------------
from time to time request that the Issuing Lender issue a Letter of Credit by
delivering to the Issuing Lender at its address for notices specified herein an
Application therefor, completed to the satisfaction of the Issuing Lender, and
such other certificates, documents and other papers and information as the
Issuing Lender may request. Upon receipt of any Application, the 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 the Issuing Lender be required to issue any
Letter of Credit earlier than three 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 the
Issuing Lender and the Borrower. The Issuing Lender shall furnish a copy of
such Letter of Credit to the Borrower or at its direction promptly following the
issuance thereof. The 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).
<PAGE>
31
(a) Fees and Other Charges. 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 Issuing Lender for its own account a fronting fee of 0.25% per
annum on the undrawn and unexpired amount of each Letter of Credit, payable
quarterly in arrears on each L/C Fee Payment Date after the issuance date.
(a) In addition to the foregoing fees, the Borrower shall pay or
reimburse the Issuing Lender for such normal and customary costs and expenses as
are incurred or charged by the Issuing Lender in issuing, negotiating, effecting
payment under, amending or otherwise administering any Letter of Credit.
(a) L/C Participations. The Issuing Lender irrevocably agrees to
------------------
grant and hereby grants to each L/C Participant, and, to induce the Issuing
Lender to issue Letters of Credit hereunder, each L/C Participant irrevocably
agrees to accept and purchase and hereby accepts and purchases from the Issuing
Lender, on the terms and conditions set forth below, for such L/C Participant's
own account and risk an undivided interest equal to such L/C Participant's
Revolving Percentage in the Issuing Lender's obligations and rights under and in
respect of each Letter of Credit issued hereunder and the amount of each draft
paid by the Issuing Lender thereunder. Each L/C Participant unconditionally and
irrevocably agrees with the Issuing Lender that, if a draft is paid under any
Letter of Credit for which the 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 the Issuing Lender upon demand at the Issuing Lender's address for
notices specified herein 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.
(i) If any amount required to be paid by any L/C Participant to the
Issuing Lender pursuant to Section 3.4(a) in respect of any unreimbursed portion
of any payment made by the Issuing Lender under any Letter of Credit is paid to
the Issuing Lender within three Business Days after the date such payment is
due, such L/C Participant shall pay to the Issuing Lender on demand an amount
equal to the product of such amount, times 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 the
Issuing Lender, times 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 Issuing Lender by such L/C Participant within three
Business Days after the date such payment is due, the 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 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.
(a) Whenever, at any time after the 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), the 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 the
Issuing Lender), or any payment of interest on account thereof, the Issuing
Lender will distribute to such L/C Participant its pro rata share thereof;
--- ----
provided, however, that in the event that any such payment received by the
- -------- -------
Issuing Lender shall be required to be returned by the Issuing Lender, such L/C
<PAGE>
32
Participant shall return to the Issuing Lender the portion thereof previously
distributed by the Issuing Lender to it.
1.1 Reimbursement Obligation of the Borrower. The Borrower agrees to
----------------------------------------
reimburse the Issuing Lender on each date on which the Issuing Lender notifies
the Borrower of the date and amount of a draft presented under any Letter of
Credit and paid by the Issuing Lender for the amount of (a) such draft so paid
and (b) any taxes, fees, charges or other costs or expenses incurred by the
Issuing Lender in connection with such payment. Each such payment shall be made
to the Issuing Lender at its address for notices specified herein 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 otherwise) 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).
1.1 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 the Issuing Lender, any beneficiary of a
Letter of Credit or any other Person. The Borrower also agrees with the Issuing
Lender that the Issuing Lender shall not 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. The Issuing Lender
shall not 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 and nonappealable decision of a court of competent
jurisdiction to have resulted from the gross negligence or willful misconduct of
the Issuing Lender. The Borrower agrees that any action taken or omitted by the
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 Uniform
Commercial Code of the State of New York, shall be binding on the Borrower and
shall not result in any liability of the Issuing Lender to the Borrower.
1.1 Letter of Credit Payments. If any draft shall be presented for
-------------------------
payment under any Letter of Credit, the Issuing Lender shall promptly notify the
Borrower of the date and amount thereof. The responsibility of the 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.
1.1 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.
1. SECTION 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, TWTC and the Borrower hereby jointly and severally represent and warrant
to the Administrative Agent and each Lender that:
<PAGE>
33
1.1 Financial Condition. The audited consolidated balance sheets of
-------------------
TWTC as at December 31, 1998 and December 31, 1999, and the related consolidated
statements of income and of cash flows for the fiscal years ended on such dates,
reported on by and accompanied by an unqualified report from Ernst & Young LLP,
present fairly the consolidated financial condition of TWTC as at such date, and
the consolidated results of its operations and its consolidated cash flows for
the respective fiscal years then ended. The unaudited consolidated balance sheet
of TWTC as at September 30, 1999, and the related unaudited consolidated
statements of income and cash flows for the nine-month period ended on such
date, present fairly the consolidated financial condition of TWTC as at such
date, and the consolidated results of its operations and its consolidated cash
flows for the nine-month period then ended (subject to normal year-end
adjustments). 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 the aforementioned firm
of accountants and disclosed therein). TWTC 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 the most
recent financial statements referred to in this paragraph. During the period
from December 31, 1999 to and including the date hereof there has been no
Disposition by TWTC or any of its Subsidiaries of any material part of its
business or property.
1.2 No Change. Since December 31, 1999, there has been no
---------
development or event that has had or could reasonably be expected to have a
Material Adverse Effect.
1.1 Existence; Compliance with Law. Each of TWTC and its
------------------------------
Subsidiaries (a) is duly organized, validly existing and in good standing under
the laws of the jurisdiction of its organization, (b) has the corporate or
partnership, as the case may be, 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 corporation or partnership, as the case may be, 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 except to the extent that the failure
to comply therewith could not, in the aggregate, reasonably be expected to have
a Material Adverse Effect.
1.1 Power; Authorization; Enforceable Obligations. Each Loan Party
---------------------------------------------
will have the corporate or partnership, as the case may be, power and authority,
and the legal right, to make, deliver and perform the Loan Documents to which it
is a party prior to the execution of any such Loan Documents. Except as set
forth on Schedule 4.4, the Borrower has the corporate power and authority, and
the legal right, to obtain extensions of credit hereunder. Each Loan Party will
have taken all necessary corporate or partnership, as the case may be, action to
authorize the execution, delivery and performance of the Loan Documents to which
it is a party prior to the execution of any such Loan Documents. Except as set
forth on Schedule 4.4, the Borrower has taken all necessary corporate action to
authorize the extensions of credit 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 extensions of credit hereunder or with the execution,
delivery, performance, validity or enforceability of this Agreement or any of
the Loan Documents, except (i) consents, authorizations, filings and notices
described in Schedule 4.4, which consents, authorizations, filings and notices
shall be obtained or made and shall be in full force and effect prior to the
Initial Funding Date and (ii) the filings referred to in Section 4.19. This
Agreement has been, and each other Loan Document as of its date will be, 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 legal, valid and binding obligation of each Loan Party party
thereto, enforceable against each such Loan
<PAGE>
34
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).
1.1 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
Requirement of Law or any Contractual Obligation of TWTC 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 Security Documents). No Requirement of Law or Contractual
Obligation applicable to TWTC or any of its Subsidiaries could reasonably be
expected to have a Material Adverse Effect.
1.1 Litigation. No litigation, investigation or proceeding of or
----------
before any arbitrator or Governmental Authority is pending or, to the knowledge
of TWTC or the Borrower, threatened by or against TWTC 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.
1.2 No Default. Neither TWTC 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.
1.1 Ownership of Property; Liens. Each of TWTC and its Subsidiaries
----------------------------
has title in fee simple 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, and none of such property is subject to any Lien except as permitted
by Section 7.3.
1.1 Intellectual Property. TWTC and each of its Subsidiaries owns,
---------------------
or is licensed to use, all Intellectual Property necessary for the conduct of
its business as currently conducted. No material claim has been asserted and is
pending by any Person challenging or questioning the use of any Intellectual
Property or the validity or effectiveness of any Intellectual Property, nor does
TWTC or any of its Subsidiaries know of any valid basis for any such claim. The
use of Intellectual Property by TWTC and its Subsidiaries does not infringe on
the rights of any Person in any material respect.
1.1 Taxes. Each of TWTC and its 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 any the amount or validity of that 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 TWTC or its
Subsidiaries, as the case may be); no tax Lien has been filed, and, to the
knowledge of TWTC and the Borrower, no claim is being asserted, with respect to
any such tax, fee or other charge.
1.1 Federal Regulations. No part of the proceeds of any Loans, and
-------------------
no other extensions of credit hereunder, will be used 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.
<PAGE>
35
1.1 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 TWTC or any of its Subsidiaries pending or, to the
knowledge of TWTC or the Borrower, threatened; (b) hours worked by and payment
made to employees of TWTC 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 TWTC 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 TWTC or the relevant Subsidiary.
1.1 ERISA. Neither a Reportable Event with respect to a Plan which,
-----
if terminated, would result in material liability 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, other than a standard
termination pursuant to Section 4041(b) of ERISA, has occurred, and no Lien in
favor of the PBGC or a Plan has arisen, during such five-year period, in either
case with respect to which the Borrower has any outstanding liability. 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 a material amount. 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 which has not been satisfied as of the date hereof, and neither the
Borrower nor any Commonly Controlled Entity would to the knowledge of the
Borrower become subject to any material liability under ERISA if the Borrower or
any such 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 such Multiemployer Plan is
in Reorganization or Insolvent.
1.1 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.
(a) Subsidiaries. Except as disclosed to the Administrative Agent by
------------
the Borrower in writing from time to time after the Closing Date, Schedule 4.15
sets forth the name and jurisdiction of incorporation of each Subsidiary and, as
to each such Subsidiary, the percentage of each class of Capital Stock owned by
any Loan Party and there are no outstanding subscriptions, options, warrants,
calls, rights or other agreements or commitments (other than stock options
granted to employees or directors and directors' qualifying shares) of any
nature relating to any Capital Stock of the Borrower or any Subsidiary of TWTC,
except as created by the Loan Documents.
1.1 Use of Proceeds. The proceeds of the Loans and the Swingline
---------------
Loans, and the Letters of Credit, shall be used for general corporate purposes,
working capital needs, including permitted acquisitions and investments, and to
fund the construction, expansion, development or acquisition of properties or
assets to be utilized directly or indirectly, for the design, development,
construction, installation, integration, management or provision of any
telecommunications business, including voice, video, internet and data
transmission products, services and systems and any business reasonably related
to the foregoing.
<PAGE>
36
1.1 Environmental Matters. Except as, individually or in the
---------------------
aggregate, could not reasonably be expected to have a Material Adverse Effect:
(a) the facilities and properties owned, leased or operated by TWTC
or any of its Subsidiaries (the "Properties") do not contain any Materials
----------
of Environmental Concern in amounts or concentrations or under
circumstances that constitute a violation of, or could reasonably be
expected to give rise to liability under, any Environmental Law;
(b) neither TWTC nor any of its Subsidiaries has received any written
notice of any violation, alleged violation, liability or potential
liability regarding environmental matters or compliance with Environmental
Laws with regard to any of the Properties or the business operated by TWTC
or any of its Subsidiaries (the "Business"), nor does TWTC or the Borrower
--------
have knowledge 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 reasonably be expected to 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 reasonably be
expected to 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 TWTC and the Borrower, threatened, under
any Environmental Law to which TWTC 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 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 TWTC 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; and
(f) the Properties and all operations at the Properties or otherwise
in respect to the Business are in compliance, and have in the last five
years been in compliance, with all applicable Environmental Laws.
1.1 Accuracy of Information, etc. No statement or 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 any Loan Party to the Administrative Agent or the Lenders, or
any of them, for use in connection with the transactions contemplated by this
Agreement or the other Loan Documents, contained as of the date such statement,
information, document or certificate was so furnished (or, in the case of the
Confidential Information Memorandum, as of the date of this Agreement), any
untrue statement of a material fact or omitted to state a material fact
necessary to make the statements contained herein or therein, when taken as a
whole and in conjunction with TWTC's public filings and disclosures, not
misleading. The projections contained in the materials referenced above are
based upon good faith estimates and assumptions believed by management of TWTC
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 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 or in any other documents, certificates
<PAGE>
37
and statements furnished to the Administrative Agent and the Lenders for use in
connection with the transactions contemplated hereby and by the other Loan
Documents.
1.1 Security Documents. On and after the Initial Funding Date,
------------------
the Guarantee and Collateral 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 the Pledged Stock described in the Guarantee and
Collateral Agreement, when stock 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 and other filings specified on Schedule 3 to the Guarantee and
Collateral Agreement in appropriate form are filed in the offices specified on
Schedule 3 to the Guarantee and Collateral Agreement, the Guarantee and
Collateral Agreement shall constitute a fully perfected Lien on, and security
interest in, all right, title and interest of the Loan Parties in such
Collateral and the proceeds thereof to the extent perfection may be accomplished
by the filing of such financing statements and other filings, 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 (except, in the case of
Collateral other than Pledged Stock, Liens permitted by Section 7.3).
1.1 Solvency. Except for any Shell Subsidiaries, each Loan Party
--------
is, and after the incurrence of all Indebtedness and obligations being incurred
in connection herewith and therewith will be and will continue to be, Solvent.
1.1 Year 2000 Matters. The Year 2000 date change has not resulted
-----------------
in disruption of TWTC's and its Subsidiaries' computer hardware, software,
databases, systems and other equipment containing embedded microchips (including
systems and equipment supplied by others or with which TWTC's or its
Subsidiaries' systems interface), or to TWTC's or its Subsidiaries' operations
or business systems, or to the best of TWTC's and its Subsidiaries' knowledge,
to the operations or business systems of the Borrower's major vendors,
customers, suppliers and counterparties. TWTC has no reason to believe that
liabilities and expenditures related to the Year 2000 date-change (including,
without limitation, costs caused by reprogramming errors, the failure of others'
systems or equipment, and the potential liability, if any, of TWTC or its
Subsidiaries for Year 2000 related costs incurred or disruption experienced by
others) will result in a Default, Event of Default or a Material Adverse Effect.
1. SECTION CONDITIONS PRECEDENT
1.1 Conditions to Effectiveness. This Agreement shall become
---------------------------
effective on and as of the first date on which the following conditions
precedent shall have been satisfied:
(a) Credit Agreement. The Administrative Agent shall have received
----------------
this Agreement, executed and delivered by the Administrative Agent, TWTC, the
Borrower and each Person listed on Schedule 1.1A.
In the event that this Agreement has not been duly executed and
delivered by each Person listed on Schedule 1.1A on the date scheduled to
be the Closing Date, the condition referred to above shall nevertheless be
deemed satisfied if on such date the Borrower and the Administrative Agent
shall have designated one or more Persons (the "Designated Lenders") to
------------------
assume, in the aggregate, all of the Revolving Commitments that would have
been held by the Persons listed on Schedule 1.1A (the "Non-Executing
-------------
Persons") which have not so executed and delivered this Agreement (subject
-------
to each such Designated Lender's consent and its execution
<PAGE>
38
and delivery of this Agreement). Schedule 1.1A shall automatically be
deemed to be amended to reflect the respective Revolving Commitments of the
Designated Lenders and the omission of the Non-Executing Persons as Lenders
hereunder.
(a) Financial Statements. The Lenders shall have received (i)
--------------------
audited consolidated financial statements of TWTC for the 1998 and 1999 fiscal
years and (ii) unaudited interim consolidated financial statements of TWTC for
each quarterly period ended subsequent to the date of the latest applicable
financial statements delivered pursuant to clause (i) of this paragraph as to
which such financial statements are available, and such financial statements
shall not, in the reasonable judgment of the Lenders, reflect any material
adverse change in the consolidated financial condition of TWTC and its
Subsidiaries, as reflected in the financial statements or projections contained
in the Confidential Information Memorandum.
(a) Fees. The Lenders and the Administrative Agent shall have
----
received all fees required to be paid, and all expenses for which invoices have
been presented (including the reasonable fees and expenses of legal counsel), on
or before the Closing Date.
For purposes of determining compliance with the conditions
specified in Section 5.1, each Lender shall be deemed to have consented to,
approved or been satisfied with each document, condition or other matter
required thereunder to be consented to, approved by or satisfactory to the
Lenders unless the Administrative Agent shall have received notice from such
Lender prior to the Closing Date specifying its objection thereto.
1.1 Conditions to Initial Extension of Credit. The agreement of
-----------------------------------------
each Lender to make the initial extension of credit requested to be made by it
is subject to the satisfaction, prior to or concurrently with the making of such
extension of credit on the Initial Funding Date, of the following conditions
precedent:
(a) Guarantee and Collateral Agreement. The Administrative Agent
----------------------------------
shall have received (i) the Guarantee and Collateral Agreement, executed and
delivered by TWTC, the Borrower and each Subsidiary Guarantor and (ii) an
Acknowledgment and Consent in the form attached to the Guarantee and Collateral
Agreement, executed and delivered by each Issuer (as defined therein), if any,
that is not a Loan Party.
(a) Transfer of TWTC's Network Operating Center Assets. TWTC shall
--------------------------------------------------
have transferred its network operating center assets (including, without
limitation, the computer systems associated therewith) to the Borrower on or
before the Initial Funding Date on terms and conditions satisfactory to the
Administrative Agent.
(a) Approvals. All material governmental and third party approvals
---------
necessary in connection with the continuing operations of TWTC and its
Subsidiaries and the transactions contemplated hereby shall have been obtained
and be in full force and effect, and all applicable waiting periods shall have
expired without any action being taken or threatened by any competent authority
that would restrain, prevent or otherwise impose adverse conditions on the
financing contemplated hereby.
(a) Closing Certificate. The Administrative Agent shall have
-------------------
received, with a counterpart for each Lender, a certificate of each Loan Party,
dated the Initial Funding Date, substantially in the form of Exhibit C, with
appropriate insertions and attachments.
(a) Legal Opinions. The Administrative Agent shall have received the
--------------
following executed legal opinions:
(i) the legal opinion of Cravath, Swaine & Moore, counsel to TWTC and
its Subsidiaries, in form and substance reasonably satisfactory to the
Administrative Agent;
<PAGE>
39
(i) the legal opinion of Paul B. Jones, Esq., general counsel of TWTC
and its Subsidiaries, in form and substance reasonably satisfactory to the
Administrative Agent; and
(ii) the legal opinion of local counsel and of such other special
counsel as may be required by the Administrative Agent.
Each such legal opinion shall cover such other matters incident to the
transactions contemplated by this Agreement as the Administrative Agent may
reasonably require.
(a) Lien Searches. The Administrative Agent shall have received the
-------------
results of a recent Uniform Commercial Code lien search from the Secretary of
State or other appropriate state office for those states in which are located
income producing property of TWTC or any of its Subsidiaries that have generated
in the aggregate at least 85% of the gross revenues of TWTC and its Subsidiaries
for the twelve month period most recently ended prior to the Initial Funding
Date, and such search shall reveal no liens on any of the assets of TWTC or its
Subsidiaries except for liens permitted by Section 7.3.
(a) Pledged Stock; Stock Powers; Pledged Notes. The Administrative
------------------------------------------
Agent shall have received (i) the certificates representing the shares of
Capital Stock pledged pursuant to the Guarantee and Collateral Agreement,
together with an undated indorsement for each such certificate executed in blank
by an appropriate person and (ii) each promissory note (if any) pledged to the
Administrative Agent 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.
(a) Filings, Registrations and Recordings. Each document (including
-------------------------------------
any Uniform Commercial Code financing statement) required by the Security
Documents or under law or reasonably requested by the Administrative Agent to be
filed, registered or recorded in order to create in favor of the Administrative
Agent, for the benefit of the Lenders, a perfected Lien on the Collateral
described therein, prior and superior in right to any other Person (other than
with respect to Liens expressly permitted by Section 7.3), shall be in proper
form for filing, registration or recordation.
(a) Insurance. The Administrative Agent shall have received insurance
---------
certificates satisfying the requirements of Section 5.2(b) of the Guarantee and
Collateral Agreement.
(a) Fees. The Lenders and the Administrative Agent shall have
----
received all fees required to be paid, and all expenses for which invoices have
been presented (including the reasonable fees and expenses of legal counsel), on
or before the Initial Funding Date.
(a) Intercompany Debt. All Indebtedness of the Borrower or any
-----------------
Subsidiary to TWTC shall be evidenced by an Intercompany Subordinated Note.
(a) Other Documents. The Administrative Agent shall have received
---------------
such other documents or materials (including, without limitation, additional
lien searches) as the Administrative Agent shall reasonably request.
1.1 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:
<PAGE>
40
(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 on and as of such date as if made on and as of such date.
(a) 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.
(a) No Violation of the Indenture. TWTC certifying that the making of
-----------------------------
such extension of credit shall not violate any provision of the Indenture (it
being understood that such certification may be contained in the notice of
borrowing).
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 5.3 have been satisfied.
1. SECTION AFFIRMATIVE COVENANTS
TWTC and the Borrower hereby jointly and severally 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 the
Administrative Agent hereunder, each of TWTC and the Borrower shall and shall
cause each of its Subsidiaries to:
1.1 Financial Statements. Furnish to the Administrative Agent
--------------------
for duplication and distribution to the Lenders:
(a) as soon as available, but in any event within 95 days after the
end of each fiscal year of TWTC, a copy of the audited consolidated balance
sheet of TWTC 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 Ernst
&Young LLP or other independent certified public accountants of nationally
recognized standing; and
(a) as soon as available, but in any event not later than 50 days
after the end of each of the first three quarterly periods of each fiscal year
of TWTC, the unaudited consolidated balance sheet of TWTC 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 adjustments).
All such financial statements, together with the notes thereto, 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 (except as approved by such
accountants or officer, as the case may be, and disclosed therein).
Any financial statement required to be delivered pursuant to this
Section 6.1 shall be deemed to have been delivered on the date on which TWTC
posts such financial statement on its website on the Internet at
www.twtelecom.com or when such financial statement is posted on the SEC's
website on the Internet at www.sec.gov; provided that TWTC shall give notice of
--------
any such posting to the Administrative Agent (who shall then give notice of any
such posting to the Lenders); provided, further, that TWTC shall deliver paper
-------- -------
copies of any financial statement referred to in this Section 6.1 to the
<PAGE>
41
Administrative Agent if the Administrative Agent or any Lender requests TWTC to
deliver such paper copies until written notice to cease delivering such paper
copies is given by the Administrative Agent.
1.1 Certificates; Other Information. Furnish to the
-------------------------------
Administrative Agent for duplication and distribution to the Lenders (or, in the
case of clause (g), 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, except as specified in such certificate;
(a) 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 in all material respects 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) in the case of quarterly or annual financial statements,
(x) a Compliance Certificate containing all information and calculations
necessary for determining compliance by TWTC 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 TWTC, as the case may be, including, without
limitation, a report as to the status of availability of the exception to the
indebtedness covenant contained in the Indenture (the "Indenture Indebtedness
----------------------
Basket") permitting $300,000,000 of indebtedness (including a statement as to
- ------
the amount of the Loans outstanding under this Agreement that are permitted to
be outstanding under the exception contained in Section 4.03(a)(vii) of the
Indenture relating to the acquisition of certain assets) and (y) to the extent
not previously disclosed to the Administrative Agent, a listing of any county or
state within the United States where any Loan Party keeps inventory or equipment
and of any Intellectual Property acquired by any Loan Party since the date of
the most recent list delivered pursuant to this clause (y) (or, in the case of
the first such list so delivered, since the Closing Date);
(a) as soon as available, and in any event no later than 50 days
after the end of each fiscal year of TWTC, a detailed consolidated budget for
the following fiscal year (including a projected consolidated balance sheet of
TWTC and its Subsidiaries as of the end of the following fiscal year, the
related consolidated statements of projected cash flow and projected income and
a description of the underlying assumptions applicable thereto), and, as soon as
available, significant revisions, if any, of such budget and projections with
respect to such fiscal year (collectively, the "Projections"), which Projections
-----------
shall in each case be accompanied by a certificate of a Responsible Officer
stating that such Projections are based on reasonable estimates, information and
assumptions believed by TWTC to be reasonable at the time made and that such
Responsible Officer has no reason to believe that such Projections are incorrect
or misleading in any material respect (it being recognized by the Lenders that
such opinions, projections and forecasts as to any future event or state of
affairs are not to be viewed as factual information and that actual results
during the period or periods covered by any such opinion, projection or forecast
may differ from the opinions and projected or forecast results);
(a) no later than 10 Business Days prior to the effectiveness
thereof, copies of substantially final drafts of any proposed amendment,
supplement, waiver or other modification with respect to the Indenture;
(a) within five days after the same are sent, copies of all financial
statements and reports that TWTC or the Borrower sends to the holders of any
class of its debt securities or public equity
<PAGE>
42
securities and, within five days after the same are filed, copies of all
financial statements and reports that TWTC or the Borrower may make to, or file
with, the SEC; and
(a) promptly, such additional financial and other information as any
Lender may from time to time reasonably request through the Administrative
Agent.
Any delivery required to be made pursuant to Section 6.2(e) shall
be deemed to have been made on the date on which TWTC posts such delivery on its
website on the Internet at www.twtelecom.com or when such delivery is posted on
the SEC's website on the Internet at www.sec.gov; provided that TWTC shall give
--------
notice of any such posting to the Administrative Agent (who shall then give
notice of any such posting to the Lenders); provided, further, that TWTC shall
-------- -------
deliver paper copies of any delivery referred to in Section 6.2(e) to the
Administrative Agent if the Administrative Agent or any Lender requests TWTC to
deliver such paper copies until written notice to cease delivering such paper
copies is given by the Administrative Agent.
1.1 Payment of Obligations. Pay, discharge or otherwise satisfy
----------------------
at or before maturity or before they become delinquent, as the case may be, all
its material obligations of whatever nature, except 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 TWTC or its Subsidiaries, as the case may be.
1.1 Maintenance of Existence; Compliance. (a)(i) Preserve, renew
------------------------------------
and keep in full force and effect its corporate 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.
(a) Maintenance of Property; Insurance. 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 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 area by companies engaged in the same or a similar business.
1.1 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
dealings and transactions in relation to its business and activities and (b)
permit representatives of any Lender to visit and inspect any of its properties
and examine and make abstracts from any of its books and records at any
reasonable time, upon reasonable notice and as often as may reasonably be
desired and to discuss the business, operations, properties and financial and
other condition of TWTC and its Subsidiaries with officers and employees of TWTC
and its Subsidiaries and with its independent certified public accountants.
1.1 Notices. Promptly give notice to the Administrative Agent
-------
of:
(a) the occurrence of any Default or Event of Default;
(a) any (i) default or event of default under any Contractual
Obligation of TWTC or any of its Subsidiaries or (ii) litigation, investigation
or proceeding that may exist at any time between TWTC or any of its Subsidiaries
and any Governmental Authority, that in either case, if not cured or if
adversely determined, as the case may be, could reasonably be expected to have a
Material Adverse Effect;
<PAGE>
43
(a) any litigation or proceeding affecting TWTC or any of its
Subsidiaries (i) in which the amount involved is $5,000,000 or more and not
covered by insurance, (ii) in which injunctive or similar relief is sought or
(iii) which relates to any Loan Document;
(a) the following events, as soon as possible and in any event within
30 days after a Responsible Officer knows or has reason to know thereof: (i) the
occurrence of any Reportable Event with respect to any Plan, a failure by the
Borrower or any Commonly Controlled Entity 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 or (ii) the institution of proceedings or the taking of any
other action by the PBGC or the Borrower or any Commonly Controlled Entity or
any Multiemployer Plan with respect to the withdrawal from, or the termination,
Reorganization or Insolvency of, any Plan; provided that in the case of either
--------
clause (i) or (ii) above, such event or events could reasonably be expected to
result in liability in excess of $5,000,000; and
(a) any 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 TWTC or the relevant Subsidiary proposes to take
with respect thereto.
(a) Environmental Laws. Comply in all material respects with,
------------------
and use its reasonable efforts to ensure compliance in all material respects by
all tenants and subtenants, if any, with, all applicable Environmental Laws, and
obtain and comply in all material respects with and maintain, and use its
reasonable efforts to ensure that all tenants and subtenants obtain and comply
in all material respects with and maintain, any and all licenses, approvals,
notifications, registrations or permits required by applicable Environmental
Laws, except to the extent that failure to do so could not reasonably be
expected to have a Material Adverse Effect.
(a) Conduct and complete all investigations, studies, sampling
and testing, and all remedial, removal and other actions required under
Environmental Laws and promptly comply in all material respects with all lawful
orders and directives of all Governmental Authorities regarding Environmental
Laws, except to the extent that the same are being contested in good faith by
appropriate proceedings and the pendency of such proceedings could not
reasonably be expected to have a Material Adverse Effect.
(a) Additional Collateral, etc. With respect to any property
--------------------------
acquired after the Closing Date by any of TWTC's Subsidiaries (other than (x)
any property described in paragraph (b), (c) or (d) below, (y) any property
subject to a Lien expressly permitted by Section 7.3(g) and (z) property
acquired by any Excluded Foreign Subsidiary) as to which the Administrative
Agent, for the benefit of the Lenders, does not have a perfected Lien, promptly
(i) execute and deliver to the Administrative Agent such amendments to the
Guarantee and Collateral Agreement or such other documents as the Administrative
Agent deems necessary or advisable to grant to the Administrative Agent, for the
benefit of the Lenders, a security interest in such property and (ii) take all
actions necessary or advisable to grant to the Administrative Agent, for the
benefit of the Lenders, a perfected first priority security interest in such
property, 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.
<PAGE>
44
(a) With respect to any fee interest in any real property having
a value (together with improvements thereof) of at least $1,000,000 (net of any
amount of any third party mortgage on such property existing when acquired)
acquired after the Closing Date by any of TWTC's Subsidiaries (other than (x)
any such real property subject to a Lien expressly permitted by Section 7.3(g)
and (z) real property acquired by any Excluded Foreign Subsidiary), promptly (i)
execute and deliver a first priority mortgage, in form and substance reasonably
satisfactory to the Administrative Agent, in favor of the Administrative Agent,
for the benefit of the Lenders, covering such real property, (ii) if requested
by the Administrative Agent, provide the Lenders with (x) title and extended
coverage insurance covering such real property in an amount at least equal to
the purchase price of such real property (or such other amount as shall be
reasonably specified by the Administrative Agent) as well as a current ALTA or
equivalent survey thereof, together with a surveyor's certificate and (y) any
consents or estoppels reasonably deemed necessary or advisable by the
Administrative Agent in connection with such mortgage or deed of trust, each of
the foregoing in form and substance reasonably satisfactory to the
Administrative Agent and (iii) if reasonably requested by the Administrative
Agent, deliver to the Administrative Agent legal opinions relating to the
matters described above, which opinions shall be in form and substance, and from
counsel, reasonably satisfactory to the Administrative Agent.
(a) With respect to any new Subsidiary (other than an Excluded
Foreign Subsidiary) created or acquired after the Closing Date by TWTC or any of
its Subsidiaries (which, for the purposes of this paragraph (c), shall include
any existing Subsidiary that ceases to be an Excluded Foreign Subsidiary),
promptly (i) 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, a perfected first priority security interest in the Capital Stock
of such new Subsidiary that is owned by TWTC or any of its Subsidiaries, (ii)
deliver to the Administrative Agent the certificates representing such Capital
Stock, together with undated indorsements, in blank, executed and delivered by
an appropriate person of TWTC or such Subsidiary, as the case may be, (iii)
cause such new Subsidiary (A) to become a party to the Guarantee and Collateral
Agreement, (B) 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 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 and (C) to deliver to the Administrative Agent a
certificate of such Subsidiary, substantially in the form of Exhibit C, with
appropriate insertions and attachments, and (iv) if reasonably requested by the
Administrative Agent (and consistent with the opinion coverage provided on the
Initial Funding Date), deliver to the Administrative Agent legal opinions
relating to the matters described above, which opinions shall be in form and
substance, and from counsel, reasonably satisfactory to the Administrative
Agent.
(a) With respect to any new Excluded Foreign Subsidiary created
or acquired after the Closing Date by TWTC or any of its Subsidiaries, promptly
(i) 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, a perfected first priority security interest in the Capital Stock of
such new Subsidiary that is owned by TWTC or any of its Subsidiaries (provided
--------
that in no event shall more than 65% of the total outstanding Capital Stock of
any such new Subsidiary be required to be so pledged), (ii) deliver to the
Administrative Agent the certificates representing such Capital Stock, together
with undated indorsements, in blank, executed and delivered by an appropriate
person of TWTC or such Subsidiary, as the case may be, and take such other
action as may be necessary or, in the opinion of the Administrative Agent,
desirable to perfect the Administrative Agent's security interest therein, and
(iii) if reasonably requested by the Administrative Agent (and consistent with
the opinion coverage provided on the Initial Funding Date), deliver to the
Administrative Agent legal opinions relating to the matters described above,
which opinions shall be in form and substance, and from counsel, reasonably
satisfactory to the Administrative Agent.
<PAGE>
45
1. SECTION NEGATIVE COVENANTS
TWTC and the Borrower hereby jointly and severally 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 the Administrative Agent
hereunder, each of TWTC and the Borrower shall not, and shall not permit any of
its Subsidiaries to, directly or indirectly:
1.1 Financial Condition Covenants.
-----------------------------
(a) Consolidated Leverage Ratio. Permit the Consolidated Leverage
---------------------------
Ratio as of the last day of any fiscal quarter of TWTC set forth below to exceed
the ratio set forth below opposite such fiscal quarter:
Consolidated
Fiscal Quarter Leverage Ratio
-------------- --------------
until 12/31/00 7.00 to 1.0
01/01/01 - 12/30/02 6.00 to 1.0
12/31/02 - 12/31/03 5.00 to 1.0
01/01/04 - thereafter 4.00 to 1.0
(a) Consolidated Interest Coverage Ratio. Permit the Consolidated
------------------------------------
Interest Coverage Ratio for any period of four consecutive fiscal quarters of
TWTC ending with any fiscal quarter set forth below to be less than the ratio
set forth below opposite such fiscal quarter:
Consolidated Interest
Fiscal Quarter Coverage Ratio
-------------- --------------
until 12/31/00 1.25 to 1.0
01/01/01 - 12/31/03 1.50 to 1.0
01/01/04 - thereafter 2.50 to 1.0
(a) Consolidated Debt Service Coverage Ratio. Permit the
----------------------------------------
Consolidated Debt Service Coverage Ratio determined as of the last day of any
fiscal quarter of TWTC ending on or after December 31, 2004 to be less than 1.50
to 1.0.
1.1 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 or under
the Incremental Facility, if any;
(a) Indebtedness of the Borrower to any Subsidiary and of any Wholly Owned
Subsidiary Guarantor to the Borrower or any other Subsidiary;
(a) Guarantee Obligations incurred in the ordinary course of business (i)
by the Borrower or any of its Subsidiaries of obligations of any Wholly Owned
Subsidiary Guarantor and (ii) by TWTC of obligations of its Subsidiaries with
respect to such Subsidiaries' real estate leases;
<PAGE>
46
(a) Indebtedness outstanding on the date hereof and listed on Schedule
7.2(d) and any refinancings, refundings, renewals or extensions thereof (without
increasing, or shortening the maturity of, the principal amount thereof);
(a) Indebtedness (including, without limitation, Capital Lease
Obligations) secured by Liens permitted by Section 7.3(g) in an aggregate
principal amount not to exceed $30,000,000 at any one time outstanding;
(a) Hedge Agreements in respect of Indebtedness otherwise permitted hereby
that bears interest at a floating rate, so long as such agreements are not
entered into for speculative purposes;
(a) Indebtedness of TWTC (but not any Subsidiary of TWTC) so long as (i)
no Default or Event of Default has occurred and is continuing or would result
therefrom, (ii) such Indebtedness shall not mature prior to the date that is one
year after the final maturity date of the Loans and the expiration of the
Commitments hereunder, (iii) the Net Cash Proceeds thereof shall be contributed
to the Borrower as either equity or debt to the extent TWTC has cash and Cash
Equivalents in excess of $25,000,000 in the aggregate (provided that to the
--------
extent contributed as debt, such debt shall be evidenced by an Intercompany
Subordinated Note), (iv) after giving effect to the incurrence thereof, TWTC
shall be in pro forma compliance with the covenants contained in Section 7.1 and
--- -----
(v) such Indebtedness shall not constitute utilization of the Indenture
Indebtedness Basket to the extent TWTC reasonably expects to need availability
under such basket for Loans;
(a) Indebtedness of any Subsidiary acquired in connection with any
Investment permitted pursuant to Section 7.8(i), provided that (i) no Default or
--------
Event of Default has occurred and is continuing or would result therefrom, (ii)
such Indebtedness existed at the time such Person became a Subsidiary and was
not incurred in anticipation thereof, (iii) no Person other than such Subsidiary
becomes an obligor in respect of such Indebtedness and (iv) the aggregate amount
of such Indebtedness in excess of $20,000,000 (whether or not subsequently
repaid) shall constitute usage of the basket provided in Section 7.8(i) unless
and until such Subsidiary becomes a Wholly Owned Subsidiary Guarantor, at which
time such Indebtedness of such Subsidiary in excess of $20,000,000 shall no
longer be permitted to remain outstanding and shall no longer constitute usage
of such baskets;
(a) Indebtedness consisting of guaranties of loans made to officers,
directors or employees of TWTC or any Subsidiary of TWTC in an aggregate amount
which, when added to the outstanding principal amount of loans and advances made
pursuant to Section 7.8(d), shall not exceed $5,000,000 at any one time
outstanding;
(a) Indebtedness of TWTC to the Borrower in connection with dividends,
distributions or advancements made pursuant to clauses (b), (c), (d), (e), (f)
or (g) of Section 7.6;
(a) Indebtedness of the Borrower to TWTC evidenced by an Intercompany
Subordinated Note;
(a) unsecured trade accounts payable incurred in the ordinary course of
business and not more than 120 days past due (but excluding any Indebtedness for
borrowed money);
(a) reimbursement obligations incurred in the ordinary course of business
related to performance bonds posted in connection with the installation of fiber
facilities and similar activities in an aggregate amount not to exceed
$10,000,000 at any one time outstanding; and
(a) additional Indebtedness of the Borrower or any of its Subsidiaries in
an aggregate principal amount (for the Borrower and all Subsidiaries) not to
exceed $30,000,000 at any one time outstanding.
<PAGE>
47
1.1 Liens. Create, incur, assume or suffer to exist any Lien upon
-----
any of its property, whether now owned or hereafter acquired, except for:
(a) Liens for taxes 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 the Borrower or its Subsidiaries, as the
case may be, in conformity with GAAP;
(a) 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;
(a) pledges or deposits in connection with workers' compensation,
unemployment insurance and other social security legislation and deposits
securing liability to insurance carriers under insurance or self-insurance
arrangements;
(a) deposits to secure the performance of bids, trade contracts (other
than for borrowed money), leases, statutory obligations, surety and appeal
bonds, performance bonds and other obligations of a like nature incurred in the
ordinary course of business;
(a) easements, rights-of-way, 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 the Borrower or any of its Subsidiaries;
(a) Liens in existence on the date hereof listed on Schedule 7.3(f),
securing Indebtedness permitted by Section 7.2(d), provided that no such Lien is
--------
spread to cover any additional property after the Closing Date and that the
amount of Indebtedness secured thereby is not increased;
(a) Liens securing Indebtedness of the Borrower or any other Subsidiary
incurred pursuant to Section 7.2(e) to finance the acquisition of fixed or
capital assets, provided that (i) such Liens shall be created substantially
--------
simultaneously with the acquisition of such fixed or capital assets, (ii) such
Liens do not at any time encumber any property other than the property financed
by such Indebtedness and (iii) the amount of Indebtedness secured thereby is not
increased;
(a) Liens created pursuant to the Security Documents;
(a) any interest or title of a lessor under any lease entered into by the
Borrower or any other Subsidiary in the ordinary course of its business and
covering only the assets so leased;
(a) Liens on the property or assets of a Person which becomes a Subsidiary
after the date hereof securing Indebtedness permitted by Section 7.2(h),
provided that (i) such Liens existed at the time such Person became a Subsidiary
- --------
and were not created in anticipation thereof, (ii) any such Lien is not expanded
to cover any property or assets of such Person after the time such Person
becomes a Subsidiary (other than after acquired title in or on such property and
proceeds of the existing collateral in accordance with the instrument creating
such Lien), (iii) the amount of Indebtedness secured thereby is not increased,
and (iv) neither (x) the aggregate outstanding principal amount of the
obligations secured thereby nor (y) the aggregate fair market value (determined
as of the date such Lien is incurred) of the assets subject thereto exceeds (as
to all relevant Subsidiaries) $20,000,000 at any one time; and
<PAGE>
48
(a) 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 (as to the Borrower and all
Subsidiaries) $5,000,000 at any one time.
1.1 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) any Subsidiary of the Borrower may be merged or consolidated with or
into the Borrower (provided that the Borrower shall be the continuing or
--------
surviving corporation) or with or into any Wholly Owned Subsidiary Guarantor
(provided that the Wholly Owned Subsidiary Guarantor shall be the continuing or
--------
surviving corporation);
(a) any Subsidiary of the Borrower may Dispose of any or all of its assets
(upon voluntary liquidation or otherwise) to the Borrower or any Wholly
Owned Subsidiary Guarantor; and
(a) any Shell Subsidiary may be dissolved.
1.1 Disposition of Property. Dispose of any of its property,
-----------------------
whether now owned or hereafter acquired, or issue or sell any shares of its
Capital Stock to any Person, except:
(a) the Disposition of obsolete or worn out property in the ordinary
course of business;
(a) the sale of inventory in the ordinary course of business; the
Disposition of cash and Cash Equivalents for fair value; the license of
intellectual property in the ordinary course of business; and leases and
subleases with respect to excess capacity and not materially interfering with
the ordinary conduct of business;
(a) Dispositions permitted by Section 7.4(b);
(a) the sale or issuance of TWTC's common stock or Qualified Preferred
Stock to any Person, provided that the Net Cash Proceeds thereof shall be
--------
contributed to the Borrower as either equity or debt to the extent TWTC has cash
and Cash Equivalents in excess of $25,000,000 in the aggregate (provided that to
---------
the extent contributed as debt, such debt shall be evidenced by an Intercompany
Subordinated Note);
(a) the sale or issuance of any Subsidiary's Capital Stock to the Borrower
or any Wholly Owned Subsidiary Guarantor;
(a) any Exchange by TWTC and its Subsidiaries, provided that (i) on the
--------
date of such Exchange, no Default or Event of Default shall have occurred and be
continuing or would result therefrom, (ii) the assets received in connection
with such Exchange shall be received by a Wholly Owned Subsidiary of TWTC or, in
the case of any Capital Stock so received, by the Borrower and (iii) in the
event that any cash consideration is paid or received by TWTC or any of its
Subsidiaries in connection with such Exchange, then (a) the payment of any such
cash is permitted by Section 7.7 or Section 7.8(i), as applicable and in
accordance with GAAP, and (b) the Disposition related to the receipt of any such
cash is permitted by Section 7.5(h);
(a) the Disposition of any Investments made pursuant to Section 7.8(g),
provided that the Net Cash Proceeds of such Disposition shall be applied to the
- --------
permanent reduction of the Revolving Commitments to the extent required by
Section 2.9(a); and
(a) the Disposition of other property having a fair market value not to
exceed $50,000,000 in the aggregate for any fiscal year of TWTC, provided that
--------
the Net Cash Proceeds of such Disposition
<PAGE>
49
shall be applied to the permanent reduction of the Revolving Commitments to the
extent required by Section 2.9(a).
1.1 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 Capital Stock of TWTC 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 TWTC or
any Subsidiary (collectively, "Restricted Payments"), except that:
-------------------
(a) any Subsidiary may make Restricted Payments to the Borrower or any
Wholly Owned Subsidiary Guarantor;
(a) so long as no Event of Default shall have occurred and be continuing
or would result therefrom, the Borrower may pay dividends (or make distributions
or advancements) to TWTC to permit TWTC to purchase TWTC' common stock or common
stock options from present or former officers or employees of TWTC, the Borrower
or any Subsidiary upon the death, disability or termination of employment of
such officer or employee, provided, that the aggregate amount of payments under
--------
this Section 7.6(b) after the date hereof (net of any proceeds received by TWTC
and contributed to the Borrower after the date hereof in connection with resales
of any common stock or common stock options so purchased) shall not exceed
$5,000,000;
(a) the Borrower may pay dividends (or make distributions or advancements)
to TWTC for the purpose of enabling TWTC to make scheduled interest payments in
respect of any Indebtedness of TWTC incurred pursuant to Section 7.2(g),
provided that (i) no Default or Event of Default shall have occurred and be
- --------
continuing or would result therefrom and (ii) each such payment shall be made no
earlier than three Business Days prior to the date the relevant interest payment
is due;
(a) the Borrower may pay dividends (or make distributions or advancements)
to TWTC for the purpose of enabling TWTC to make scheduled interest payments in
respect of the Senior Notes and other senior Indebtedness of TWTC incurred
pursuant to Section 7.2(g), provided that (i) no Default under Section 8(a) or
--------
8(e)(i) or (ii) or Event of Default shall have occurred and be continuing or
would result therefrom and (ii) each such payment shall be made no earlier than
three Business Days prior to the date the relevant interest payment is due;
(a) so long as no Default or Event of Default shall have occurred and be
continuing or would result therefrom, the Borrower may pay dividends (or make
distributions or advancements) to TWTC for the purpose of enabling TWTC to
finance Investments permitted by Section 7.8(g) or 7.8(h) in an aggregate amount
not to exceed the amount of Net Cash Proceeds previously contributed to the
Borrower from any issuance or sale of TWTC's common stock or Qualified Preferred
Stock;
(a) so long as no Default or Event of Default shall have occurred and be
continuing or would result therefrom, the Borrower may pay dividends (or make
distributions or advancements) to TWTC to permit TWTC to make payments to a
third party on behalf of the Borrower or its Subsidiaries related to ordinary
course expenses of the Borrower and its Subsidiaries; and
(a) the Borrower may pay dividends (or make distributions or advancements)
to TWTC to permit TWTC to (i) pay customary corporate overhead expenses incurred
in the ordinary course of
<PAGE>
50
business and (ii) pay any taxes that are due and payable by TWTC and the
Borrower as part of a consolidated group.
1.1 Capital Expenditures. Until the date on which the ratio of
--------------------
Consolidated Total Debt on such day to Annualized Consolidated EBITDA for the
most recent complete fiscal quarter of TWTC is less than 5.00 to 1.0: make or
commit to make any Capital Expenditure, except Capital Expenditures of TWTC and
its Subsidiaries in the ordinary course of business not exceeding for any fiscal
year set forth below the dollar amount set forth below opposite such fiscal
year:
Fiscal Year Amount
----------- ------
2000 $500,000,000
2001 $420,000,000
2002 $380,000,000
2003 $390,000,000
2004 $450,000,000
2005 $380,000,000
2006 $460,000,000
2007 $480,000,000
2008 $490,000,000
provided, that (i) up to $150,000,000 of any such amount referred to above, if
- --------
not so expended in the fiscal year for which it is permitted, may be carried
over for expenditure in the next succeeding fiscal year, (ii) up to $25,000,000
of any such amount referred to above may be carried back for expenditure in the
immediately preceding fiscal year and (iii) Capital Expenditures made pursuant
to this Section 7.7 during any fiscal year shall be deemed made, first, in
-----
respect of amounts carried over from the prior fiscal year pursuant to subclause
(i) above, second, in respect of amounts permitted for such fiscal year as
------
provided above and, third, in respect of amounts carried back from the next
-----
succeeding fiscal year pursuant to subclause (ii) above.
1.1 Investments. Make any advance, loan, extension of credit (by
-----------
way of guaranty or otherwise) or capital contribution to, or purchase any
Capital Stock, bonds, notes, debentures or other debt securities of, or any
assets constituting 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;
(a) Investments in Cash Equivalents;
(a) Guarantee Obligations permitted by Section 7.2;
(a) loans and advances to officers, directors or employees of TWTC or
any Subsidiary of TWTC in the ordinary course of business (including for travel,
entertainment and relocation expenses) in an aggregate amount for TWTC or any
Subsidiary of TWTC which, when added to the outstanding principal amount of
Indebtedness incurred pursuant to Section 7.2(i), shall not exceed $5,000,000 at
any one time outstanding;
(a) intercompany Investments by TWTC or any of its Subsidiaries in the
Borrower or any Person that, prior to such investment, is a Wholly Owned
Subsidiary Guarantor;
(a) Investments by the Borrower in TWTC in connection with dividends,
distributions or advancements made pursuant to clauses (b), (c), (d), (e), (f)
or (g) of Section 7.6;
<PAGE>
51
(a) Investments by TWTC or any of its Subsidiaries in existing or
potential trade suppliers, vendors and customers from whom the Borrower
reasonably expects to obtain a material commercial benefit in an aggregate
amount (valued at cost) not to exceed $25,000,000 at any one time;
(a) so long as no Default or Event of Default shall have occurred and be
continuing or would result therefrom, Investments by TWTC in any Person that is
or concurrently therewith becomes a Wholly Owned Subsidiary Guarantor in an
aggregate amount equal to the Net Cash Proceeds received from any issuance or
sale of TWTC's common stock or Qualified Preferred Stock; and
(a) in addition to Investments otherwise expressly permitted by this
Section, Investments by the Borrower or any of its Subsidiaries in an aggregate
amount (valued at cost) not to exceed $75,000,000 at any one time.
1.1 Optional Payments and Modifications of Certain Debt
---------------------------------------------------
Instruments. (a) Make or offer to make any optional or voluntary payment,
- -----------
prepayment, repurchase or redemption of or otherwise optionally or voluntarily
defease or segregate funds with respect to the Senior Notes or (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 the Senior Notes in
any manner materially adverse to the Lenders.
1.1 Transactions with Affiliates. Other than as set forth on
----------------------------
Schedule 7.10, 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 the
Borrower or any Wholly Owned Subsidiary Guarantor) unless such transaction is
(a) otherwise permitted under this Agreement, (b) in the ordinary course of
business of TWTC, the Borrower or such Subsidiary, as the case may be, and (c)
upon fair and reasonable terms no less favorable to TWTC, the Borrower or such
Subsidiary, as the case may be, than it would obtain in a comparable arm's
length transaction with a Person that is not an Affiliate.
1.1 Sales and Leasebacks. Enter into any arrangement with any
--------------------
Person providing for the leasing by TWTC or any Subsidiary of real or personal
property that has been or is to be sold or transferred by TWTC 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 TWTC or such Subsidiary, other than any sale and leaseback
transaction involving properties existing on the Closing Date and permitted by
Section 7.3(k) or properties acquired after the Closing Date and permitted by
Section 7.3(g).
1.1 Changes in Fiscal Periods. Permit the fiscal year of TWTC or
-------------------------
the Borrower to end on a day other than December 31 or change TWTC's or the
Borrower's method of determining fiscal quarters.
1.1 Negative Pledge Clauses. Enter into or suffer to exist or
-----------------------
become effective any agreement that prohibits or limits the ability of TWTC 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,
other than (a) this Agreement and the other Loan Documents, (b) the Time Warner
Arrangements, (c) 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), (d) any
agreements governing any Investment in any joint venture that limit the ability
to grant a security interest in the Capital Stock of such joint venture so long
as such Capital Stock is pledged to the Administrative Agent, for the ratable
benefit of the Lenders, in an indirect manner satisfactory to the Administrative
Agent, (e) customary restrictions entered into in the ordinary course of
<PAGE>
52
business with respect to Intellectual Property that limit the ability to grant a
security interest in such Intellectual Property, (f) any agreements governing
any leasehold interest (including any rights of way, colocation agreements and
other similar such interests in real estate) or building entry agreements that
limit the ability to grant a security interest in such leasehold interest or
building entry agreements, (g) agreements with customers for the provision of
services that limit the ability to grant a security interest in such agreements
(but not amounts receivable or any money or other amounts due or to become due
or other right of payment resulting from those agreements), and (h) the
Indenture.
1.1 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 Capital Stock 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 and (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 Capital Stock or assets of such
Subsidiary.
1.1 Lines of Business; Holding Company Status. (a) Enter into any
-----------------------------------------
business, either directly or through any Subsidiary, except for the design,
development, construction, installation, integration, management or provision of
any telecommunications business, including voice, video, Internet and data
transmission products, services and systems and any business reasonably related
to the foregoing (each, a "Permitted Line of Business").
--------------------------
(b) In the case of TWTC, (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 Capital Stock of
other Persons or (ii) after the earlier of (a) 45 days after the Closing Date
and (b) the date of the initial extension of credit hereunder, own, lease,
manage or otherwise operate any properties or assets (including cash and Cash
Equivalents) for any period greater than two consecutive days other than (1)
cash and Cash Equivalents in an amount not to exceed $25,000,000 in the
aggregate and (2) the ownership of shares of Capital Stock of other Persons;
provided that, TWTC may continue to conduct administrative and management
- --------
oversight and headquarters functions (including, without limitation, maintaining
its leases of office space existing on the Closing Date).
1.1 Modifications to Time Warner Arrangements and Material Rights
-------------------------------------------------------------
and Privileges. Amend, supplement, or otherwise modify the terms and
- --------------
conditions of any of the Time Warner Arrangements or any material rights and
privileges (including, without limitation, FCC and local regulatory licenses) in
any manner materially adverse to the Lenders.
1. SECTION 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
(a) 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
<PAGE>
53
furnished by it at any time under or in connection with this Agreement or any
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
(a) 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
TWTC and the Borrower only), Section 6.7(a) or Section 7 of this Agreement or
Sections 5.5 and 5.7(b) of the Guarantee and Collateral Agreement; or
(a) 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
(a) TWTC or any of its Subsidiaries shall (i) default in making any
payment of any principal of any Indebtedness (including any Guarantee
Obligation, but excluding the Loans) on the scheduled or original due date,
whichever is later, with respect thereto (giving effect to any applicable grace
periods); 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 clauses (i), (ii) and (iii) of this paragraph (e) shall have
occurred and be continuing with respect to Indebtedness the outstanding
principal amount of which exceeds in the aggregate $10,000,000; or
(a) (i) TWTC 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 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 its assets, or
TWTC or any of its Subsidiaries shall make a general assignment for the benefit
of its creditors; or (ii) there shall be commenced against TWTC 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 TWTC
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) TWTC 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) TWTC 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
<PAGE>
54
(a) (i) any Person shall engage in any "prohibited transaction" (as defined in
Section 406 of ERISA or Section 4975 of the Code) involving any Plan, (ii) 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 the Borrower or any Commonly
Controlled Entity, (iii) 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, (iv) any Single
Employer Plan shall terminate for purposes of Title IV of ERISA, (v) the
Borrower 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 or
(vi) any other event or condition other than in the ordinary course shall occur
or exist with respect to a Plan; and in each case in clauses (i) through (vi)
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
(a) one or more judgments or decrees shall be entered against TWTC or any of
its Subsidiaries involving in the aggregate a liability (to the extent (i) not
paid by insurance or (ii) as to which no reasonable expectation of insurance
coverage exists) of $10,000,000 or more (or, with respect to judgments related
to reciprocal compensation arrangements for which reserves in conformity with
GAAP have been provided on the books of TWTC or its Subsidiaries or that have
not yet been recognized as revenue, $15,000,000 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
(a) any of the Security Documents shall cease, for any reason, to be in
full force and effect, or any Loan Party or any Affiliate of any Loan Party
shall so assert, or any Lien created by any of the Security Documents shall
cease to be enforceable and of the same effect and priority purported to be
created thereby; or
(a) the guarantee contained in Section 2 of the Guarantee and Collateral
Agreement shall cease, for any reason, to be in full force and effect or any
Loan Party or any Affiliate of any Loan Party shall so assert; or
(a) the Time Warner Arrangements shall cease, for any reason, to
be in full force and effect or any Loan Party or any Affiliate of any Loan Party
shall so assert (other than any expiration of any of the Time Warner
Arrangements in accordance with its terms that could not, individually or in the
aggregate, reasonably be expected to have a Material Adverse Effect); or
(a) (i) the Permitted Investors shall cease to have the power to vote or
direct the voting of securities having at least 30% of the ordinary voting power
for the election of directors of TWTC (determined on a fully diluted basis);
(ii) the Permitted Investors shall cease to own of record and beneficially,
directly or indirectly, securities of TWTC representing at least 30% (determined
on a fully diluted basis) of the economic interests therein; (iii) any "person"
or "group" (as such terms are used in Sections 13(d) and 14(d) of the Securities
Exchange Act of 1934, as amended (the "Exchange Act")), excluding the Permitted
Investors, shall become, or obtain rights (whether by means or warrants, options
or otherwise) to become, the "beneficial owner" (as defined in Rules 13(d)-3 and
13(d)-5 under the Exchange Act), directly or indirectly, of more than the
percentage of the outstanding common stock of TWTC at the time owned and
controlled by the Permitted Investors; (iv) the board of directors of TWTC shall
cease to consist of a majority of Continuing Directors; (v) TWTC shall cease to
own and control, of record and beneficially, directly, 100% of each class of
outstanding Capital Stock of the Borrower free and clear of all Liens (except
Liens created by the Guarantee and Collateral Agreement); or (vi) a Specified
Change of Control shall occur; provided, that the merger of Time Warner, Inc.
--------
with AOL, Inc., the merger of MediaOne Group, Inc. with AT&T Corp. and the
secondary equity offering of the stock of
<PAGE>
55
TWTC held by MediaOne Group, Inc. are expressly permitted hereunder and none
shall constitute an Event of Default under this Section 8(l);
then, and in any such event, (A) if such event is an Event of Default specified
in clause (i) or (ii) of paragraph (f) 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.
1. SECTION THE AGENTS
1.1 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.
1.1 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
<PAGE>
56
Agent shall not be responsible for the negligence or misconduct of any agents or
attorneys in-fact selected by it with reasonable care.
1.1 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.
1.1 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 TWTC 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.
1.1 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 hereunder unless the Administrative Agent has received notice from a
Lender, TWTC 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.
1.1 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
<PAGE>
57
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.
1.1 Indemnification. The Lenders agree to indemnify each Agent in
---------------
its capacity as such (to the extent not reimbursed by TWTC or the Borrower and
without limiting the obligation of TWTC 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 Revolving 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 Revolving 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.
1.1 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.
1.1 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(f) 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
<PAGE>
58
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.
1.1 Documentation Agent and Syndication Agent. Neither the
-----------------------------------------
Documentation Agent nor the Syndication Agent shall have any duties or
responsibilities hereunder in its capacity as such.
1. SECTION MISCELLANEOUS
1.1 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 (with
the written consent of the Required Lenders), 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, including,
without limitation, the termination of the Revolving Commitments and the Loans
being due and payable; 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 any reduction of the Revolving Commitments provided in Section 2.3(a),
reduce the stated rate of any interest or fee payable hereunder (except that any
amendment or modification of defined terms used in the financial covenants in
this Agreement shall not constitute a reduction in the rate of interest or fees
for purposes of this clause (i)) or extend the scheduled date of any payment
thereof, or increase the amount or extend the expiration date of any Lender's
Revolving Commitment, in each case without the written consent of each Lender
directly affected thereby; (ii) eliminate or reduce the voting rights of any
Lender under this Section 10.1 without the written consent of such Lender; (iii)
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 without the written consent of all Lenders; (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 2.6 or
2.7 without the written consent of the Swingline Lender; or (vi) amend, modify
or waive any provision of Section 3 without the written consent of the 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 Administrative Agent and all future holders of the
Loans. In the case of any waiver, the Loan Parties, the Lenders and the
Administrative Agent 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.
<PAGE>
59
For the avoidance of doubt, this Agreement may be amended (or amended
and restated) with the written consent of the Required Lenders, the
Administrative Agent and the Borrower (a) to add one or more additional credit
facilities to this Agreement and to permit the extensions of credit from time to
time outstanding thereunder and the accrued interest and fees in respect thereof
(collectively, the "Additional Extensions of Credit") to share ratably in the
-------------------------------
benefits of this Agreement and the other Loan Documents with the Revolving
Extensions of Credit and the accrued interest and fees in respect thereof and
(b) to include appropriately the Lenders holding such credit facilities in any
determination of the Required Lenders.
1.1 Notices. All notices, requests and demands to or upon the
-------
respective parties hereto to be effective shall be in writing (including by
telecopy), and, unless otherwise expressly provided herein, shall be deemed to
have been duly given or made when delivered, or three 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 TWTC, 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:
TWTC: Time Warner Telecom Inc.
10475 Park Meadows Drive
Littleton, CO 80124
Attention: Mark A. Peters, Vice President, Treasurer
Telecopy: (303) 566-1776
Telephone: (303) 566-1545
The Borrower: Time Warner Telecom Holdings Inc.
10475 Park Meadows Drive
Littleton, CO 80124
Attention: Paul B. Jones, Esq., General Counsel
Telecopy: (303) 566-1237
Telephone: (303) 566-1777
with a copy to: Cravath, Swaine & Moore
Worldwide Plaza
825 Eighth Avenue
New York, NY 10019
Attention: William P. Rogers, Jr., Esq.
Telecopy: (212) 474-3700
Telephone: (212) 474-1270
The Administrative Agent: The Chase Manhattan Bank
270 Park Avenue
New York, NY 10017
Attention: Joan Fitzgibbon
Telecopy: (212) 270-4164
Telephone: (212) 270-1786
<PAGE>
60
with a copy to: The Chase Manhattan Bank
Agency Bank Services
One Chase Manhattan Plaza, 8th Floor
New York, NY 10081
Attention: Donna Montgomery
Telecopy: (212) 552-5700
Telephone: (212) 552-7477
provided that any notice, request or demand to or upon the Administrative Agent
- --------
or the Lenders shall not be effective until received.
1.1 No Waiver; Cumulative Remedies. No failure to exercise and no
------------------------------
delay in exercising, on the part of the Administrative 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.
1.1 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.
1.1 Payment of Expenses and Taxes. Each of TWTC and 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,
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 counsel to the Administrative Agent and filing and recording
fees and expenses, with statements with respect to the foregoing to be submitted
to the Borrower prior to the Closing Date (in the case of amounts to be paid on
the Closing Date) and from time to time thereafter on a quarterly basis or such
other periodic basis as the Administrative Agent shall deem appropriate, (b) to
pay or reimburse each Lender and the Administrative Agent for all its costs and
expenses incurred in connection with the enforcement or preservation of any
rights under this Agreement, the other Loan Documents and any such other
documents, including the fees and disbursements of counsel to each Lender and of
counsel to the Administrative Agent, (c) to pay, indemnify, and hold each Lender
and the Administrative Agent harmless from, any and all recording and filing
fees and any and all liabilities with respect to, or resulting from any delay in
paying, stamp, excise and other taxes, if any, that may be payable or determined
to be payable in connection with the execution and delivery of, or consummation
or administration of any of the transactions contemplated by, or any amendment,
supplement or modification of, or any waiver or consent under or in respect of,
this Agreement, the other Loan Documents and any such other documents, and (d)
to pay, indemnify, and hold each Lender and the Administrative Agent and their
respective officers, directors, employees, affiliates, 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 TWTC or 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 any Loan Party under any Loan
Document (all the foregoing in this clause (d), collectively, the "Indemnified
-----------
Liabilities"), provided, that neither TWTC nor the Borrower shall have any
- ----------- --------
obligation
<PAGE>
61
hereunder to any Indemnitee with respect to Indemnified Liabilities to the
extent such Indemnified Liabilities are found by a final and nonappealable
decision of a court of competent jurisdiction to have resulted from the gross
negligence or willful misconduct of such Indemnitee. It is understood and agreed
that, to the extent not precluded by a conflict of interest, each Indemnitee
shall endeavor to work cooperatively with a view to minimizing the legal and
other expenses associated with any defense and any potential settlement or
judgment. Without limiting the foregoing, and to the extent permitted by
applicable law, TWTC agrees not to assert and to cause its Subsidiaries not to
assert, and hereby waives and agrees to cause its Subsidiaries to 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 10 days
after written demand therefor. Statements payable by TWTC or the Borrower
pursuant to this Section 10.5 shall be submitted to 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.
(a) Successors and Assigns; Participations and Assignments. This
------------------------------------------------------
Agreement shall be binding upon and inure to the benefit of TWTC, the Borrower,
the Lenders, the Administrative Agent, all future holders of the Loans and their
respective successors and assigns, except that the Borrower may not assign or
transfer any of its rights or obligations under this Agreement without the prior
written consent of each Lender.
(a) Any Lender other than any Conduit Lender may, without the
consent of the Borrower, in accordance with applicable law, at any time sell to
one or more banks, financial institutions or other entities (each, a
"Participant") participating interests in any Loan owing to such Lender, any
-----------
Revolving Commitment of such Lender or any other interest of such Lender
hereunder and under the other Loan Documents. In the event of any such sale by a
Lender of a participating interest to a Participant, such Lender's obligations
under this Agreement to the other parties to this Agreement shall remain
unchanged, such Lender shall remain solely responsible for the performance
thereof, such Lender shall remain the holder of any such Loan for all purposes
under this Agreement and the other Loan Documents, and the Borrower and the
Administrative Agent shall continue to deal solely and directly with such Lender
in connection with such Lender's rights and obligations under this Agreement and
the other Loan Documents. In no event shall any Participant under any such
participation have any right to approve any amendment or waiver of any provision
of any Loan Document, or any consent to any departure by any Loan Party
therefrom, except to the extent that such amendment, waiver or consent would
reduce the principal of, or interest on, the Loans or any fees payable
hereunder, or postpone the date of the final maturity of the Loans, in each case
to the extent subject to such participation. The Borrower agrees that if amounts
outstanding under this Agreement and the Loans are due or unpaid, or shall have
been declared or shall have become due and payable upon the occurrence of an
Event of Default, each Participant shall, to the maximum extent permitted by
applicable law, be deemed to have the right of setoff in respect of its
participating interest in amounts owing under this Agreement to the same extent
as if the amount of its participating interest were owing directly to it as a
Lender under this Agreement, provided that, in purchasing such participating
--------
interest, such Participant shall be deemed to have agreed to share with the
Lenders the proceeds thereof as provided in Section 10.7(a) as fully as if it
were a Lender hereunder. The Borrower also agrees that each Participant shall be
entitled to the benefits of Sections 2.16, 2.17 and 2.18 with respect to its
participation in the Revolving Commitments and the Loans outstanding from time
to time as if it was a Lender; provided that, in the case of Section 2.19, such
--------
Participant shall have complied with the requirements of said Section and
provided, further, that no Participant shall be entitled to receive any greater
- -------- -------
amount pursuant to any such Section than the transferor
<PAGE>
62
Lender would have been entitled to receive in respect of the amount of the
participation transferred by such transferor Lender to such Participant had no
such transfer occurred.
(a) Any Lender other than any Conduit Lender (an "Assignor") may, in
--------
accordance with applicable law, at any time and from time to time assign to any
Lender, any affiliate of any Lender or any Approved Fund or, with the consent of
the Borrower and the Administrative Agent (which, in each case, shall not be
unreasonably withheld or delayed), to an additional bank, financial institution
or other entity (an "Assignee") all or any part of its rights and obligations
--------
under this Agreement and the other Loan Documents pursuant to an Assignment and
Acceptance, executed by such Assignee, such Assignor and any other Person whose
consent is required pursuant to this paragraph, and delivered to the
Administrative Agent for its acceptance and recording in the Register; provided
--------
that no such assignment to an Assignee (other than any Lender or any affiliate
of any Lender) shall be in an aggregate principal amount of less than $5,000,000
(other than in the case of an assignment of all of a Lender's interests under
this Agreement), unless otherwise agreed by the Borrower and the Administrative
Agent. For purposes of the proviso contained in the preceding sentence, the
amount described therein shall be aggregated in respect of each Lender and its
related Approved Funds, if any. Any such assignment need not be ratable as among
the Facilities. Upon such execution, delivery, acceptance and recording, from
and after the effective date determined pursuant to such Assignment and
Acceptance, (x) the Assignee thereunder shall be a party hereto and, to the
extent provided in such Assignment and Acceptance, have the rights and
obligations of a Lender hereunder with a Revolving Commitment and/or Loans as
set forth therein, and (y) the Assignor thereunder shall, to the extent provided
in such Assignment and Acceptance, be released from its obligations under this
Agreement (and, in the case of an Assignment and Acceptance covering all of an
Assignor's rights and obligations under this Agreement, such Assignor shall
cease to be a party hereto). Notwithstanding any provision of this Section 10.6,
the consent of the Borrower shall not be required for any assignment that occurs
when an Event of Default pursuant to Section 8(f) shall have occurred and be
continuing with respect to the Borrower. Notwithstanding the foregoing, any
Conduit Lender may assign at any time to its designating Lender hereunder
without the consent of the Borrower or the Administrative Agent any or all of
the Loans it may have funded hereunder and pursuant to its designation agreement
and without regard to the limitations set forth in the first sentence of this
Section 10.6(c).
(a) The Administrative Agent shall, on behalf of the Borrower,
maintain at its address referred to in Section 10.2 a copy of each Assignment
and Acceptance delivered to it and a register (the "Register") for the
--------
recordation of the names and addresses of the Lenders and the Revolving
Commitment of, and the principal amount of the Loans owing to, each Lender from
time to time. The entries in the Register shall be conclusive, in the absence of
manifest error, and the Borrower, each other Loan Party, the Administrative
Agent and the Lenders shall treat each Person whose name is recorded in the
Register as the owner of the Loans and any Notes evidencing the Loans recorded
therein for all purposes of this Agreement. Any assignment of any Loan, whether
or not evidenced by a Note, shall be effective only upon appropriate entries
with respect thereto being made in the Register (and each Note shall expressly
so provide). Any assignment or transfer of all or part of a Loan evidenced by a
Note shall be registered on the Register only upon surrender for registration of
assignment or transfer of the Note evidencing such Loan, accompanied by a duly
executed Assignment and Acceptance, and thereupon one or more new Notes shall be
issued to the designated Assignee.
(a) Upon its receipt of an Assignment and Acceptance executed by an
Assignor, an Assignee and any other Person whose consent is required by Section
10.6(c), together with payment to the Administrative Agent of a registration and
processing fee of $3,500, the Administrative Agent shall (i) promptly accept
such Assignment and Acceptance and (ii) record the information contained therein
in the Register on the effective date determined pursuant thereto.
(a) For avoidance of doubt, the parties to this Agreement acknowledge
that the provisions of this Section 10.6 concerning assignments of Loans and
Notes relate only to absolute assignments and that such provisions do not
prohibit assignments creating security interests, including
<PAGE>
63
any pledge or assignment by a Lender of any Loan or Note to any Federal Reserve
Bank in accordance with applicable law.
(a) The Borrower, 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 (f) above.
(a) Each of TWTC, 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.
(a) Adjustments; Set-off. 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 Obligations owing to it, 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(f), or otherwise), in a greater proportion than any such payment to or
collateral received by any other Lender, if any, in respect of the Obligations
owing to such other Lender, such Benefitted Lender shall purchase for cash from
the other Lenders a participating interest in such portion of the Obligations
owing to each such other Lender, 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.
(a) In addition to any rights and remedies of the Lenders provided
by law, each Lender shall have the right, without prior notice to TWTC or the
Borrower, any such notice being expressly waived by TWTC and the Borrower to the
extent permitted by applicable law, upon any amount becoming due and payable by
TWTC or the Borrower hereunder, subject to applicable grace periods (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 TWTC 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 by such Lender, provided that the failure to give such notice
--------
shall not affect the validity of such setoff and application.
1.1 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.
<PAGE>
64
1.1 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.
1.1 Integration. This Agreement and the other Loan Documents
-----------
represent the entire agreement of TWTC, the Borrower, 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 not
expressly set forth or referred to herein or in the other Loan Documents.
1.1 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.
1.1 Submission To Jurisdiction; Waivers. Each of TWTC 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;
(a) 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;
(a) 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 TWTC 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;
(a) 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
(a) 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.
1.1 Acknowledgments. Each of TWTC 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;
(a) neither the Administrative Agent nor any Lender has any fiduciary
relationship with or duty to TWTC or the Borrower arising out of or in
connection with this Agreement or any of the other Loan Documents, and the
relationship between Administrative Agent and Lenders, on one hand, and TWTC and
the Borrower, on the other hand, in connection herewith or therewith is solely
that of debtor and creditor; and
<PAGE>
65
(a) 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 TWTC, the Borrower and the Lenders.
1.1 Releases 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) to 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.
(b) At such time as the Loans, the Reimbursement Obligations and the
other obligations under the Loan Documents (other than obligations under or in
respect of Hedge Agreements) 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 Security
Documents, and the Security Documents and all obligations (other than those
expressly stated to survive such termination) of the Administrative Agent and
each Loan Party under the Security Documents shall terminate, all without
delivery of any instrument or performance of any act by any Person.
1.1 Confidentiality. Each of the Administrative 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 the Administrative
--------
Agent or any Lender from disclosing any such information (a) to the
Administrative Agent, any other Lender, any affiliate of any Lender or any
Approved Fund, (b) to any actual or prospective Transferee or Hedge Agreement
counterparty 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, (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
the National Association of Insurance Commissioners or any similar organization
or 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 or (j) to any direct or indirect
contractual counterparty in swap agreements or such 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); provided, further, that with respect to disclosures
-------- -------
pursuant to clauses (d), (e) and (f) of this Section, unless prohibited by
applicable law or court order, each Lender and the Administrative Agent shall
attempt to notify TWTC of any request by any governmental agency or
representative thereof or other Person (other than any such request in
connection with an examination of the financial condition of such Lender by such
governmental agency) for disclosure of any material confidential information
after receipt of such request, and if reasonably practicable and permissible,
before disclosure of such information.
1.1 WAIVERS OF JURY TRIAL. TWTC, THE BORROWER, THE ADMINISTRATIVE
---------------------
AGENT 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.
<PAGE>
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.
TIME WARNER TELECOM INC.
By: /s/ David Rayner
-----------------------------------
Name: David Rayner
Title: Senior Vice President
TIME WARNER TELECOM HOLDINGS INC.
By: /s/ David Rayner
-----------------------------------
Name: David Rayner
Title: Senior Vice President
THE CHASE MANHATTAN BANK, as Administrative
Agent and as a Lender
By: /s/ Joan M. Fitzgibbon
-----------------------------------
Name: Joan M. Fitzgibbon
Title: Managing Director
BANK OF AMERICA, N.A., as Syndication Agent
and as a Lender
By /s/ Sean W. Cassidy
-----------------------------------
Name: Sean W. Cassidy
Title: Vice President
ABN AMRO BANK N.V., as Documentation Agent
and as a Lender
By: /s/ Frans O'R. Logan /s/ David Carrington
------------------------------------------
Name: Frans O'R. Logan / David Carrington
Title: Senior Vice President / Group Vice President
<PAGE>
DRESDNER BANK AG, NEW YORK AND GRAND CAYMAN BRANCHES
By: /s/ Laura G. Fazio
---------------------------------
Name: Laura G. Fazio
Title: First Vice President
By: /s/ Helen Ng
---------------------------------
Name: Helen Ng., P.E.
Title: Assistant Vice President
FLEET NATIONAL BANK
BY: /s/ Amy B. Peden
---------------------------------
Name: Amy B. Peden
Title: Assistant Vice President
LEHMAN COMMERCIAL PAPER INC.
By: /s/ Michele Swanson
---------------------------------
Name: Michele Swanson
Title: Authorized Signatory
MORGAN STANLEY SENIOR FUNDING, INC.
By: /s/ Simon Rankin
---------------------------------
Name: Simon Rankin
Title: Vice President
THE BANK OF NEW YORK
By: /s/ Brendan T. Nedzi
---------------------------------
Name: Brendan T. Nedzi
Title: Senior Vice President
WESTDEUTSCHE LANDESBANK
GIROZENTRALE, NEW YORK BRANCH
By: /s/ Michael J. Wynne
---------------------------------
Name: Michael J. Wynne
Title: Managing Director
By: /s/ Michael D. Peist
---------------------------------
Name: Michael D. Peist
Title: Vice President
MEESPIERSON CAPITAL CORP.
By: /s/ Scott T. Webster, Jr.
---------------------------------
Name: Scott T. Webster, Jr.
Title: Vice President
By: /s/ Eugene Oliva
---------------------------------
Name: Eugene Oliva
Title: Assistant Vice President
COOPERATIEVE CENTRALE RAIFFEISEN-
BOERENLEENBANK B.A., "RABOBANK
NEDERLAND", NEW YORK BRANCH
By: /s/ Eric Hurshman
---------------------------------
Name: Eric Hurshman
Title: Vice President
By: /s/ Ian Reece
---------------------------------
Name: Ian Reece
Title: Senior Credit Officer
CREDIT AGRICOLE INDOSUEZ
By: /s/ Craig Welch
---------------------------------
Name: Craig Welch
Title: Managing Director
By: /s/ John McCloskey
---------------------------------
Name: John McCloskey
Title: First Vice President
SUNTRUST BANK
By: /s/ J. Eric Millham
---------------------------------
Name: J. Eric Millham
Title: Director
THE DAI-ICHI KANGYO BANK, LTD.
By: /s/ Daniel Guevara
---------------------------------
Name: Daniel Guevara
Title: Assistant Vice President
FIRST HAWAIIAN BANK
By: /s/ Travis Ruetenik
---------------------------------
Name: Travis Ruetenik
Title: Assistant Vice President
FIRST UNION NATIONAL BANK
By: /s/ Mark L. Cook
---------------------------------
Name: Mark L. Cook
Title: Senior Vice President
THE BANK OF NOVA SCOTIA
By: /s/ Paul A. Weissenberger
---------------------------------
Name: Paul A. Weissenberger
Title: Authorized Signatory
THE BANK OF TOKYO-MITSUBISHI TRUST
COMPANY
By: /s/ Glenn B. Eckert
---------------------------------
Name: Glenn B. Eckert
Title: Vice-President and Manager
THE SUMITOMO BANK, LIMITED
By: /s/ P.R.C. Knight
---------------------------------
Name: P.R.C. Knight
Title: Senior Vice President
BAYERISCHE LANDENSBANK GIROZENTRALE
CAYMAN ISLANDS BRANCH
By: /s/ C. Stolarski
---------------------------------
Name: C. Stolarski
Title: Vice President
By: /s/ D. Rieg
-----------------------------
Name: D. Rieg
Title: First Vice President
<PAGE>
Annex A
-------
PRICING GRID FOR REVOLVING LOANS, SWINGLINE LOANS
AND COMMITMENT FEES
<TABLE>
<CAPTION>
==============================================================================================================
Consolidated Applicable Margin Applicable Margin Commitment Fee Rate
Leverage Ratio for Eurodollar Loans for ABR Loans
- --------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
Greater than or 2.00% 1.00% .875% if 33 1/3% or less of
equal to 7.00 to 1.0 the Revolving Commitments
are utilized;
.700% if 66 2/3% or less but
greater than 33 1/3% of the
Revolving Commitments are
utilized;
.500% if greater than 66
2/3% of the Revolving
Commitments are utilized
- --------------------------------------------------------------------------------------------------------------
Greater than or 1.75% 0.75% [same as above]
equal to 6.00 to 1.0
but less than 7.00 to
1.0
- --------------------------------------------------------------------------------------------------------------
Greater than or 1.50% 0.50% [same as above]
equal to 5.00 to 1.0 but
less than 6.00 to
1.0
- --------------------------------------------------------------------------------------------------------------
Greater than or 1.25% 0.25% [same as above]
equal to 4.00 to 1.0
but less than 5.00 or
1.0
- --------------------------------------------------------------------------------------------------------------
Less than 4.00 to 1.00% 0.0% [same as above]
1.0
==============================================================================================================
</TABLE>
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, commencing with the delivery
of the financial statements for the fiscal quarter ending June 30, 2000, 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 Pricing Grid shall
apply. Overdue interest, fees and other amounts shall bear interest at 2.00%
above the rate applicable to ABR Loans. Each determination of the Consolidated
Leverage Ratio pursuant to the Pricing Grid shall be made in a manner consistent
with the determination thereof pursuant to Section 7.1.
Swingline Loans shall, for purposes of the commitment fee calculations only, not
be deemed to be a utilization of the Facility.
<TABLE> <S> <C>
<PAGE>
<ARTICLE> 5
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> 3-MOS
<FISCAL-YEAR-END> DEC-31-2000
<PERIOD-START> JAN-01-2000
<PERIOD-END> MAR-31-2000
<CASH> 82,014
<SECURITIES> 139,525
<RECEIVABLES> 70,297
<ALLOWANCES> 10,577
<INVENTORY> 0
<CURRENT-ASSETS> 284,482
<PP&E> 931,099
<DEPRECIATION> 212,722
<TOTAL-ASSETS> 1,050,738
<CURRENT-LIABILITIES> 196,224
<BONDS> 400,000
0
0
<COMMON> 1,052
<OTHER-SE> 428,512
<TOTAL-LIABILITY-AND-EQUITY> 1,050,738
<SALES> 0
<TOTAL-REVENUES> 100,138
<CGS> 0
<TOTAL-COSTS> 38,989
<OTHER-EXPENSES> 21,864
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 9,727
<INCOME-PRETAX> (4,613)
<INCOME-TAX> (1,753)
<INCOME-CONTINUING> (2,860)
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> (2,860)
<EPS-BASIC> 0
<EPS-DILUTED> (0.03)
</TABLE>
