<PAGE> 1
EXHIBIT 99.2
$1,000,000,000
AMENDED AND RESTATED 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. and
MORGAN STANLEY SENIOR FUNDING, INC.,
as Co-Syndication Agents,
and
ABN AMRO BANK N.V.,
as Documentation Agent
Dated as of , 2000
----------------
CHASE SECURITIES INC., as Sole Lead Arranger and Sole Book Manager
MORGAN STANLEY SENIOR FUNDING, INC., as an Arranger
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TABLE OF CONTENTS
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SECTION 1. DEFINITIONS..............................................................1
1.1. Defined Terms............................................................1
1.2. Other Definitional Provisions...........................................25
SECTION 2. AMOUNT AND TERMS OF COMMITMENTS.........................................26
2.1. Commitments; Additional Commitments; Incremental
Facility................................................................26
2.2. Procedure for Borrowing.................................................28
2.3. Repayment of Loans......................................................28
2.4. Swingline Commitment....................................................30
2.5. Procedure for Swingline Borrowing; Refunding of
Swingline Loans.........................................................30
2.6. Commitment Fees, etc....................................................32
2.7. Optional Termination or Reduction of Commitments........................32
2.8. Optional Prepayments....................................................33
2.9. Additional Mandatory Prepayments and Commitment
Reductions..............................................................33
2.10. Conversion and Continuation Options.....................................35
2.11. Limitations on Eurodollar Loans.........................................35
2.12. Interest Rates and Payment Dates........................................36
2.13. Computation of Interest and Fees........................................36
2.14. Inability to Determine Interest Rate....................................36
2.15. Pro Rata Treatment and Payments.........................................37
2.16. Requirements of Law.....................................................38
2.17. Taxes...................................................................40
2.18. Indemnity...............................................................41
2.19. Change of Lending Office................................................42
2.20. Replacement of Lenders..................................................42
SECTION 3. LETTERS OF CREDIT.......................................................43
3.1. L/C Commitment..........................................................43
3.2. Procedure for Issuance of Letter of Credit..............................43
3.3. Fees and Other Charges..................................................43
3.4. L/C Participations......................................................44
3.5. Reimbursement Obligation of the Borrower................................45
3.6. Obligations Absolute....................................................45
3.7. Letter of Credit Payments...............................................45
3.8. Applications............................................................46
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SECTION 4. REPRESENTATIONS AND WARRANTIES..........................................46
4.1. Financial Condition.....................................................46
4.2. No Change...............................................................47
4.3. Existence; Compliance with Law..........................................47
4.4. Power; Authorization; Enforceable Obligations...........................47
4.5. No Legal Bar............................................................47
4.6. Litigation..............................................................48
4.7. No Default..............................................................48
4.8. Ownership of Property; Liens............................................48
4.9. Intellectual Property...................................................48
4.10. Taxes...................................................................48
4.11. Federal Regulations.....................................................48
4.12. Labor Matters...........................................................49
4.13. ERISA...................................................................49
4.14. Investment Company Act; Other Regulations...............................49
4.15. Subsidiaries............................................................49
4.16. Use of Proceeds.........................................................50
4.17. Environmental Matters...................................................50
4.18. Accuracy of Information, etc............................................51
4.19. Security Documents......................................................51
4.20. Solvency................................................................52
4.21. Certain Documents.......................................................52
SECTION 5. CONDITIONS PRECEDENT....................................................52
5.1. Conditions to the Initial Extension of Credit on or After the
Restatement Effective Date..............................................52
5.2. Conditions to Each Extension of Credit..................................54
SECTION 6. AFFIRMATIVE COVENANTS...................................................54
6.1. Financial Statements....................................................54
6.2. Certificates; Other Information.........................................55
6.3. Payment of Obligations..................................................57
6.4. Maintenance of Existence; Compliance....................................57
6.5. Maintenance of Property; Insurance......................................57
6.6. Inspection of Property; Books and Records; Discussions..................57
6.7. Notices.................................................................57
6.8. Environmental Laws......................................................58
6.9. Additional Collateral, etc..............................................58
SECTION 7. NEGATIVE COVENANTS......................................................60
7.1. Financial Condition Covenants...........................................60
7.2. Indebtedness............................................................61
7.3. Liens...................................................................63
7.4. Fundamental Changes.....................................................65
7.5. Disposition of Property.................................................65
7.6. Restricted Payments.....................................................66
7.7. Capital Expenditures....................................................68
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7.8. Investments.............................................................68
7.9. Optional Payments and Modifications of Certain Debt
Instruments.............................................................69
7.10. Transactions with Affiliates............................................69
7.11. Sales and Leasebacks....................................................70
7.12. Changes in Fiscal Periods...............................................70
7.13. Negative Pledge Clauses.................................................70
7.14. Clauses Restricting Subsidiary Distributions............................70
7.15. Lines of Business; Holding Company Status...............................71
7.16. Modifications to Time Warner Arrangements and Material
Rights and Privileges...................................................71
7.17. Amendments to GST Asset Purchase Agreement..............................71
7.18. Assets of TWT New Jersey................................................71
SECTION 8. EVENTS OF DEFAULT.......................................................72
SECTION 9. THE AGENTS..............................................................75
9.1. Appointment.............................................................75
9.2. Delegation of Duties....................................................75
9.3. Exculpatory Provisions..................................................76
9.4. Reliance by Administrative Agent........................................76
9.5. Notice of Default.......................................................76
9.6. Non-Reliance on Agents and Other Lenders................................77
9.7. Indemnification.........................................................77
9.8. Agent in Its Individual Capacity........................................78
9.9. Successor Administrative Agent..........................................78
9.10. Documentation Agent and Co-Syndication Agents...........................78
SECTION 10. MISCELLANEOUS..........................................................78
10.1. Amendments and Waivers..................................................78
10.2. Notices.................................................................80
10.3. No Waiver; Cumulative Remedies..........................................81
10.4. Survival of Representations and Warranties..............................81
10.5. Payment of Expenses and Taxes...........................................81
10.6. Successors and Assigns; Participations and Assignments..................82
10.7. Adjustments; Set-off....................................................85
10.8. Counterparts............................................................85
10.9. Severability............................................................85
10.10. Integration.............................................................85
10.11. GOVERNING LAW...........................................................86
10.12. Submission To Jurisdiction; Waivers.....................................86
10.13. Acknowledgments.........................................................86
10.14. Releases of Guarantees and Liens........................................87
10.15. Confidentiality.........................................................87
10.16. WAIVERS OF JURY TRIAL...................................................88
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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 Prepayment Option Notice
G Form of Exemption Certificate
iv
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AMENDED AND RESTATED CREDIT AGREEMENT, dated as of
____________, 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. and MORGAN STANLEY SENIOR FUNDING, INC., as co-syndication agents
(in such capacity, the "Co-Syndication Agents"), and THE CHASE MANHATTAN BANK
("Chase" and, in such capacity, the "Administrative Agent"), as administrative
agent.
WITNESSETH:
WHEREAS, TWTC, the Borrower, the Lenders, Chase, as
administrative agent, Bank of America, N.A., as syndication agent, and ABN Amro
Bank N.V., as documentation agent, are parties to the Credit Agreement, dated as
of April 10, 2000 (the "Existing Credit Agreement");
WHEREAS, TWTC and the Borrower have requested that the Lenders
and the Administrative Agent (i) amend certain provisions of the Existing Credit
Agreement to, among other things, obtain an additional $525,000,000 of credit
facilities in connection with TWTC's proposed acquisition of the assets of GST
Telecommunications, Inc., a Canadian corporation ("GST"), and certain affiliates
of GST, and (ii) restate the Existing Credit Agreement in its entirety as set
forth herein; and
WHEREAS, the Lenders and the Administrative Agent are willing
to amend and restate the Existing Credit Agreement and 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 agree as follows:
SECTION 1. DEFINITIONS
1.1. Defined Terms. As used in this Agreement, the terms
listed in this Section 1.1 shall have the respective meanings set forth in this
Section 1.1.
"ABR": for any day, a rate per annum (rounded upwards, if
necessary, to the next 1/16th 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.
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"ABR Loans": Loans the rate of interest applicable to which is
based upon the ABR.
"Acquisition": the acquisition of certain assets (the
"Assets") of GST and certain of its affiliates by one or more Wholly Owned
Subsidiaries of TWTC pursuant to the GST Asset Purchase Agreement.
"Additional Extensions of Credit": as defined in Section 10.1.
"Additional Financing": any offering(s) by TWTC of debt or
equity securities (or bridge financing(s) in respect thereof) that has been
disclosed to the Administrative Agent and the Arrangers prior to the date
hereof, or any offering(s) by TWTC of debt or equity securities to replace such
bridge financing(s), including the issuance of any Rollover Notes or
refinancings or replacements thereof, in each case, in form and substance, and
pursuant to documentation, reasonably satisfactory to the Administrative Agent
and the Arrangers, that will, in the aggregate, raise no less than $700,000,000
in proceeds to be used to fund the Acquisition and the business plan as
described in the Confidential Information Memorandum.
"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 Co-Syndication
Agents, the Documentation Agent and the Administrative Agent.
"Aggregate Exposure": with respect to any Lender at any time,
an amount equal to the sum of (a) the aggregate unpaid principal amount of such
Lender's Term Loans, (b) the amount of such Lender's unutilized Delayed-Draw
Term Commitment then in effect and (c) amount of such Lender's Revolving
Commitment then in effect or, if the Revolving Commitments have been terminated,
the amount of such Lender's Revolving Extensions of Credit then outstanding.
"Aggregate Exposure Percentage": with respect to any Lender at
any time, the ratio (expressed as a percentage) of such Lender's Aggregate
Exposure at such time to the Aggregate Exposure of all Lenders at such time.
"Agreement": this Amended and Restated Credit Agreement, as
amended, supplemented or otherwise modified from time to time.
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"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 (a)
any Delayed-Draw Term Loans or Revolving Loans, as the case may be, the
applicable rate per annum set forth in the Pricing Grid; provided that prior to
the first Adjustment Date occurring after the first anniversary of the
Restatement Effective Date, such applicable rate shall be (i) in the case of ABR
Loans, 1.75%, and (ii) in the case of Eurodollar Loans, 2.75%, and (b) any
Tranche B Term Loans, (i) 3.00% per annum, in the case of ABR Loans, and (ii)
4.00% per annum, in the case of Eurodollar Loans
"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.
"Arranger": Morgan Stanley Senior Funding, Inc.
"Arrangers": the collective reference to the Sole Lead
Arranger and the Arranger.
"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.
"Assets": as defined in the definition of "Acquisition".
"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 Delayed-Draw Term Commitment": as to any
Delayed-Draw Term Lender at any time, an amount equal to the excess, if any, of
(a) such Lender's Delayed-Draw Term Commitment then in effect over (b) such
Lender's Delayed-Draw Term Loans then outstanding.
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"Available Revolving Commitment": as to any Revolving Lender
at any time, an amount equal to the excess, if any, of (a) such Lender's
Revolving Commitment then in effect over (b) such Lender's Revolving Extensions
of Credit then outstanding; provided, that in calculating any Lender's Revolving
Extensions of Credit for the purpose of determining such Lender's Available
Revolving Commitment pursuant to Section 2.6(a), the aggregate principal amount
of Swingline Loans then outstanding shall be deemed to be zero.
"Benefitted Lender": as defined in Section 10.7(a).
"Board": the Board of Governors of the Federal Reserve System
of the United States (or any successor).
"Borrower": as defined in the preamble hereto.
"Borrowing Date": any Business Day specified by the Borrower
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
<PAGE> 10
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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.
"Cash Pay Preferred Stock": any class or series of Capital
Stock of any Person that by its terms or otherwise (i) is 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) is redeemable at the option of the holder of such class or
series of Capital Stock at any time prior to the Expiration Date, (iii) is
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 or that would require
cash payment of interest prior to the Expiration Date or (iv) provides for
payment of dividends (other than dividends payable solely in common stock or in
Non-Cash Pay Preferred Stock of TWTC) prior to the Expiration Date; provided,
that no Capital Stock shall constitute Cash Pay Preferred 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).
"Chase": as defined in the preamble hereto.
"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 Delayed-Draw
Term Commitment, the Tranche B Term Commitment, the Revolving Commitment and the
Incremental Commitment, if any, of such Lender.
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"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 Commitment hereunder.
"Confidential Information Memorandum": the Confidential
Information Memorandum dated October 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 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
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Revolving 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, and (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, plus, in the case of such non-cash losses on sales of the Assets or any
non-cash losses on minority investments or investments in unconsolidated
Subsidiaries, $30,000,000 for the term of this Agreement and minus, to the
extent included in the statement of such Consolidated Net Income for such
period, the sum of (a) interest income and (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 (and cash dividends on Cash Pay Preferred Stock) 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
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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.
"Consolidated Net Senior Debt": as of any day, the excess of
(i) Consolidated Senior Debt at such date over (ii) the aggregate amount of cash
and Cash Equivalents reflected on a consolidated balance sheet of the
Subsidiaries of TWTC at such date in excess of $50,000,000.
"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 Senior Debt": at any date, the aggregate
principal amount of all Senior 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 the
Subsidiaries of TWTC at such date taken as a whole, determined on a consolidated
basis in accordance with GAAP.
"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
Restatement Effective 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.
<PAGE> 14
9
"Co-Syndication Agents": as defined in the preamble hereto.
"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.
"Delayed-Draw Aggregate Funded Amount": the aggregate
principal amount of Delayed-Draw Term Loans made pursuant to Section 2.1(a).
"Delayed-Draw Commitment Termination Date": the date that is
the second anniversary of the Restatement Effective Date or the Business Day
following such date if such date is not a Business Day.
"Delayed-Draw Term Commitment": as to any Delayed-Draw Term
Lender, the obligation of such Lender to make one or more Delayed-Draw Term
Loans to the Borrower hereunder in an aggregate principal amount not to exceed
the amount set forth under the heading "Delayed-Draw Term 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 aggregate amount of the Total
Delayed-Draw Term Commitments is $275,000,000.
"Delayed-Draw Term Facility": as defined in the definition of
"Facility".
"Delayed-Draw Term Lender": each Lender that has a
Delayed-Draw Term Commitment or is the holder of a Delayed-Draw Term Loan.
"Delayed-Draw Term Loan": as defined in Section 2.1(a).
"Delayed-Draw Term Percentage": as to any Delayed-Draw Term
Lender at any time, the percentage which the aggregate principal amount of such
Lender's Delayed-Draw Term Loans then outstanding constitutes of the aggregate
principal amount of the Delayed-Draw Term Loans then outstanding.
"Disposition": with respect to any property, any sale, lease,
sale and leaseback, assignment, conveyance, transfer or other disposition
thereof, including pursuant to an exchange for other property. The terms
"Dispose" and "Disposed of" shall have correlative meanings.
"Documentation Agent": as defined in the preamble hereto.
"Dollars" and "$": 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,
<PAGE> 15
10
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 requirements in effect on such day
(including basic, supplemental, marginal and emergency reserves under any
regulations of the Board or other Governmental Authority having jurisdiction
with respect thereto) dealing with reserve requirements prescribed for
eurocurrency funding (currently referred to as "Eurocurrency Liabilities" in
Regulation D of the Board) maintained by a member bank of the Federal Reserve
System.
"Eurodollar Base Rate": with respect to each day during each
Interest Period pertaining to a Eurodollar Loan, the rate per annum determined
on the basis of the rate for deposits in Dollars for a period equal to such
Interest Period commencing on the first day of such Interest Period appearing on
Page 3750 of the Telerate screen as of 11:00 A.M., London time, two Business
Days prior to the beginning of such Interest Period. In the event that such rate
does not appear on Page 3750 of the Telerate screen (or otherwise on such
screen), the "Eurodollar Base Rate" shall be determined by reference to such
other comparable publicly available service for displaying eurodollar rates as
may be selected by the Administrative Agent or, in the absence of such
availability, by reference to the rate at which the Administrative Agent is
offered Dollar deposits at or about 11:00 A.M., New York City time, two Business
Days prior to the beginning of such Interest Period in the interbank eurodollar
market where its eurodollar and foreign currency and exchange operations are
then being conducted for delivery on the first day of such Interest Period for
the number of days comprised therein.
"Eurodollar Loans": Loans 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.
<PAGE> 16
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"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 than in respect
of any revolving credit facility to the extent there is not an equivalent
permanent reduction in commitments thereunder and other than in respect of any
bridge financing to the extent of any refinancing thereof), (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(c).
"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 and network 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.
"Existing Credit Agreement": as defined in the Preamble.
"Expiration Date": as defined in the definition of the term
"Cash Pay Preferred Stock".
<PAGE> 17
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"Facility": each of (a) the Delayed-Draw Term Commitments and
the Delayed-Draw Term Loans made thereunder (the "Delayed-Draw Term Facility"),
(b) the Tranche B Term Commitments and the Tranche B Term Loans made thereunder
(the "Tranche B Term Facility"), (c) the Revolving Commitments and the
extensions of credit made thereunder (the "Revolving Facility") and (d) the
Incremental Facility, 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 and, in the case of TWTC, the bridge financing(s) described in the
definition of Additional Financing, taken together with any refinancings
thereof.
"Funding Office": the office of the Administrative Agent
specified in Section 10.2 or such other office as may be specified from time to
time by the Administrative Agent as its funding office by written notice to the
Borrower and the Lenders.
"GAAP": generally accepted accounting principles in the United
States as in effect from time to time, except that for purposes of Section 7.1,
GAAP shall be determined on the basis of such principles in effect on the date
hereof and consistent with those used in the preparation of the most recent
audited financial statements referred to in Section 4.1(b). 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
<PAGE> 18
13
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).
"GST": as defined in the recitals hereto.
"GST Asset Purchase Agreement": the Asset Purchase Agreement,
dated as of September 11, 2000, among TWTC, GST, GST USA, Inc. and the other
parties named therein.
"Guarantee and Collateral Agreement": the Amended and Restated
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
<PAGE> 19
14
such guaranteeing person's maximum reasonably anticipated liability in respect
thereof as determined by the Borrower in good faith.
"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(d).
"Incremental Facility": as defined in Section 2.1(d).
"Incremental Loans": as defined in Section 2.1(d).
"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) all Cash Pay Preferred 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). For purposes of this
definition, the principal amount of any Cash Pay Preferred Stock shall be deemed
to be its liquidation value. 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.
<PAGE> 20
15
"Indenture Indebtedness Basket": as defined in Section 6.2(b).
"Insolvency": with respect to any Multiemployer Plan, the
condition that such Plan is insolvent within the meaning of Section 4245 of
ERISA.
"Insolvent": pertaining to a condition of Insolvency.
"Intellectual Property": the collective reference to all
rights, priorities and privileges relating to intellectual property, whether
arising under United States, multinational or foreign laws or otherwise,
including copyrights, copyright licenses, patents, patent licenses, trademarks,
trademark licenses, technology, know-how and processes, and all rights to sue at
law or in equity for any infringement or other impairment thereof, including the
right to receive all proceeds and damages therefrom.
"Intercompany 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;
<PAGE> 21
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(ii) the Borrower may not select an Interest Period
under a particular Facility that would extend beyond the
Revolving Termination Date or beyond the date final payment is
due on the Delayed-Draw Term Loans or the Tranche B Term
Loans, as the case may be;
(iii) any Interest Period that begins on the last
Business Day of a calendar month (or on a day for which there
is no numerically corresponding day in the calendar month at
the end of such Interest Period) shall end on the last
Business Day of a calendar month; and
(iv) the Borrower shall select Interest Periods so as
not to require a payment or prepayment of any Eurodollar Loan
during an Interest Period for such Loan.
"Investments": as defined in Section 7.8.
"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.
"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.
<PAGE> 22
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"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.
"Majority Facility Lenders": with respect to any Facility, the
holders of more than 50% of the aggregate unpaid principal amount of the Term
Loans or the Total Revolving Extensions of Credit, as the case may be,
outstanding under such Facility (or, in the case of the Revolving Facility,
prior to any termination of the Revolving Commitments, the holders of more than
50% of the Total Revolving Commitments). For purposes of this definition, any
unutilized Delayed-Draw Term Commitments shall be deemed to have been borrowed
as Delayed-Draw Term Loans until the Delayed-Draw Commitment Termination Date.
"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 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.
<PAGE> 23
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"New Lender": as defined in Section 2.1(e).
"New Lender Supplement": as defined in Section 2.1(e).
"Non-Cash Pay Preferred Stock": any preferred stock of a
Person that does not qualify as Cash Pay Preferred Stock.
"Non-Excluded Taxes": as defined in Section 2.17(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 Encumbrances": means with respect to or upon any of
the Assets, any (1) easement, encroachment or similar reservation which does not
impair the current use, occupancy, or value, or the marketability of title, of
such Asset and which would not individually (or in the aggregate with others) be
reasonably expected to have a material adverse effect on or materially impair
the use or enjoyment of such Asset; (2) liens securing the performance of bids,
tenders, leases, contracts (other than for the repayment of debt), statutory
obligations, surety, customs and appeal bonds and other obligations of like
nature, incurred as an incident to and in the ordinary course of GST's business;
(3) liens imposed by law, such as carriers', warehouseman's, mechanics',
materialmen's, landlords', laborers', suppliers' and vendors' liens,
<PAGE> 24
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incurred in good faith in the ordinary course of GST's business and securing
obligations which are not yet due or which are being contested in good faith by
appropriate proceedings as to which GST and its affiliates and/or TWTC and its
affiliates shall, to the extent required by GAAP, have set aside on its books
appropriate provision for liability; and (4) extensions, renewals and
replacements of liens referred to in (1) through (3) of this sentence; provided,
that any such extension, renewal or replacement lien shall be limited to the
property or assets covered by the lien extended, renewed or replaced and that
the obligations secured by any such extension, renewal or replacement lien shall
be in an amount not greater than the amount of the obligations secured by the
original lien extended, renewed or replaced, none of which, individually or in
the aggregate, materially impair the value of the property subject thereto or
the use to which such property is presently put.
"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).
"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.
"Prepayment Date": as defined in Section 2.9(e).
"Prepayment Option Notice": as defined in Section 2.9(e).
"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).
"Pro Forma Balance Sheet": as defined in Section 4.1(a).
"Projections": as defined in Section 6.2(c).
"Properties": as defined in Section 4.17(a).
<PAGE> 25
20
"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.
"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".
"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 prepay the Term Loans or reduce the Revolving Commitments and the
Delayed-Draw Term 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.
<PAGE> 26
21
"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 aggregate unpaid principal amount of the Term Loans then
outstanding, (b) the aggregate unutilized Delayed-Draw Term Commitments then in
effect, (c) the Total Revolving Commitments then in effect or, if the Revolving
Commitments have been terminated, the Total Revolving Extensions of Credit then
outstanding and (d) 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.
"Restatement Effective Date": the date on which the conditions
precedent set forth in Section 5.1 shall have been satisfied, which date shall
not be later than February 15, 2001.
"Restricted Payments": as defined in Section 7.6.
"Revolving Aggregate Committed Amount": the sum of the Total
Revolving Commitments as in effect on the Restatement Effective Date and the
amount of any increases therein effected pursuant to Section 2.1(c).
"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 Restatement Effective Date to the Revolving Termination Date.
<PAGE> 27
22
"Revolving Extensions of Credit": as to any Revolving Lender
at any time, an amount equal to the sum of (a) the aggregate principal amount of
all Revolving Loans held by such Lender then outstanding, (b) such Lender's
Revolving Percentage of the L/C Obligations then outstanding and (c) such
Lender's Revolving Percentage of the aggregate principal amount of Swingline
Loans then outstanding.
"Revolving Facility": as defined in the definition of
"Facility".
"Revolving Lender": each Lender that has a Revolving
Commitment or that holds Revolving Loans.
"Revolving Loans": as defined in Section 2.1(b).
"Revolving Percentage": as to any Revolving Lender at any
time, the percentage which such Lender's Revolving Commitment then constitutes
of the Total Revolving Commitments (or, at any time after the Revolving
Commitments shall have expired or terminated, the percentage which the aggregate
principal amount of such Lender's Revolving Loans then outstanding constitutes
of the aggregate principal amount of the Revolving Loans then outstanding).
"Revolving Termination Date": December 31, 2007.
"Rollover Notes": any Indebtedness required to be issued by
TWTC on or after the maturity date of any bridge advances in exchange for such
bridge advances in accordance with the terms of the bridge financing.
"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 (including
mortgages) 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 Indebtedness": any Indebtedness of any Subsidiary of
TWTC that is not contractually subordinated to the Indebtedness under this
Agreement. For the avoidance of doubt, any Indebtedness represented by an
Intercompany Subordinated Note will not constitute Senior Indebtedness
hereunder.
"Senior Leverage Ratio": as of any day, the ratio of (a)
Consolidated Net Senior Debt on such day to (b) Annualized Consolidated EBITDA
for the most recent complete fiscal quarter of TWTC.
"Senior Notes": the 9-3/4% Senior Notes issued under the
Indenture.
<PAGE> 28
23
"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.
"Sole Lead Arranger": Chase Securities Inc.
"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 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; provided, however, that unless TWT
New Jersey has signed the Guarantee and Collateral Agreement on or prior to the
Restatement Effective Date, it will not
<PAGE> 29
24
be deemed to be a Subsidiary Guarantor until the date that is 90 days following
the date upon which it becomes a party to the Guarantee and Collateral
Agreement.
"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(c).
"Term Lenders": the collective reference to the Delayed-Draw
Term Lenders and the Tranche B Term Lenders.
"Term Loans": the collective reference to the Delayed-Draw
Term Loans and the Tranche B Term Loans.
"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 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 trade name license
agreement between TWTC and Time Warner Inc. and its affiliates.
"Total Delayed-Draw Term Commitments": at any time, the
aggregate amount of the Delayed-Draw Term Commitments then in effect.
"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.
<PAGE> 30
25
"Tranche B Aggregate Funded Amount": the aggregate principal
amount of Tranche B Term Loans made pursuant to Section 2.1(a).
"Tranche B Prepayment Amount": as defined in Section 2.9(e).
"Tranche B Term Commitment": as to any Tranche B Term Lender,
the obligation of such Lender to make a Tranche B Term Loan to the Borrower
hereunder in a principal amount not to exceed the amount set forth under the
heading "Tranche B Term 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 aggregate amount of the Tranche B Term Commitments is
$250,000,000.
"Tranche B Term Facility": as defined in the definition of
"Facility".
"Tranche B Term Lender": each Lender that has a Tranche B Term
Commitment or is the holder of a Tranche B Term Loan.
"Tranche B Term Loan": as defined in Section 2.1(a).
"Tranche B Term Percentage": as to any Tranche B Term Lender
at any time, the percentage which the aggregate principal amount of such
Lender's Tranche B Term Loans then outstanding constitutes of the aggregate
principal amount of all Tranche B Term Loans then outstanding.
"Transferee": any Assignee or Participant.
"TWTC": as defined in the preamble hereto.
"TWT New Jersey": Time Warner Telecom of New Jersey, L.P., a
Delaware limited partnership.
"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.
1.2. Other Definitional Provisions. (a) Unless otherwise
specified therein, all terms defined in this Agreement shall have the defined
meanings when used in the other Loan Documents or any certificate or other
document made or delivered pursuant hereto or thereto.
<PAGE> 31
26
(b) As used herein and in the other Loan Documents, and any
certificate or other document made or delivered pursuant hereto or thereto, (i)
accounting terms relating to 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.
(c) The words "hereof", "herein" and "hereunder" and words of
similar import when used in this Agreement shall refer to this Agreement as a
whole and not to any particular provision of this Agreement, and Section,
Schedule and Exhibit references are to this Agreement unless otherwise
specified.
(d) The meanings given to terms defined herein shall be
equally applicable to both the singular and plural forms of such terms.
SECTION 2. AMOUNT AND TERMS OF COMMITMENTS
2.1. Commitments; Additional Commitments; Incremental
Facility. (a) Subject to the terms and conditions hereof, (i) each Delayed-Draw
Term Lender severally agrees to make one or more term loans (each, a
"Delayed-Draw Term Loan") to the Borrower in an aggregate amount not to exceed
the amount of the Delayed-Draw Term Commitment of such Lender and (ii) each
Tranche B Term Lender severally agrees to make a term loan (each, a "Tranche B
Term Loan") to the Borrower in an amount not to exceed the amount of the Tranche
B Term Commitment of such Lender. The Delayed-Draw Term Loans may be made on any
date during the period from and including the Restatement Effective Date to and
including the Delayed-Draw Commitment Termination Date, in up to 10 drawings.
Any unutilized Delayed-Draw Term Commitments shall automatically terminate on
the Delayed-Draw Commitment Termination Date. The Tranche B Term Loans may only
be made on the Restatement Effective Date. The Delayed-Draw Term Loans and the
Tranche B Term 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) Subject to the terms and conditions hereof, each Revolving
Lender severally agrees to continue (if applicable), through the amendment,
restatement and continuation described in paragraph (g) below, and 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
<PAGE> 32
27
Commitments by borrowing, prepaying the Revolving Loans in whole or in part, and
reborrowing, all in accordance with the terms and conditions hereof. The
Revolving Loans may from time to time be Eurodollar Loans or ABR Loans, as
determined by the Borrower and notified to the Administrative Agent in
accordance with Sections 2.2 and 2.10.
(c) The Borrower and any one or more Lenders (including New
Lenders) may, with the consent of the Administrative Agent, at any time after
the Restatement Effective Date and prior to April 10, 2004, 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 $250,000,000 (minus the amount of any
Incremental Loans provided under Section 2.1(d) 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 in writing to do so in its sole discretion.
(d) As an alternative or in addition to Section 2.1(c) 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 Restatement Effective
Date and prior to April 10, 2004, 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 $250,000,000 (minus the amount of
any additional Revolving Commitments provided under Section 2.1(c) above), (ii)
the Incremental Loans shall not have a stated maturity prior to 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 and TWTC shall be in pro forma compliance with the covenants
contained in Section 7.1. No Lender shall have any obligation to participate in
any increase described in this paragraph unless it agrees in writing to do so in
its sole discretion.
(e) Any additional bank, financial institution or other entity
which, with the consent of the Borrower and the Administrative Agent (which
consent shall not be unreasonably withheld), elects to become a "Lender" under
this Agreement in connection with any transaction described in Section 2.1(c) or
2.1(d) 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") 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.
<PAGE> 33
28
(f) Unless otherwise agreed by the Administrative Agent, the
Borrower shall borrow Revolving Loans under the additional Revolving Commitments
provided under Section 2.1(c) 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).
(g) On the Restatement Effective Date, any Revolving Loans
outstanding under, and as defined in, the Existing Credit Agreement shall
continue outstanding as Revolving Loans hereunder.
2.2. 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 Facility
under which such Loan is to be borrowed, (ii) the amount and Type of Loans to be
borrowed, (iii) the requested Borrowing Date and (iv) in the case of Eurodollar
Loans, the respective amounts of each such Type of Loan and the respective
lengths of the initial Interest Period therefor. Each borrowing under the
Revolving Facility shall be in an aggregate amount equal to (w) 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 (x) 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. Each
borrowing under the Delayed-Draw Term Facility shall be in an aggregate amount
equal to (y) 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 Delayed-Draw
Term Commitments are less than $5,000,000, such lesser amount) and (z) in the
case of Eurodollar Loans, $5,000,000 or a whole multiple of $1,000,000 in excess
thereof. 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.
2.3. Repayment of Loans. (a) The Delayed-Draw Term Loans of
each Delayed-Draw Term Lender shall mature in 20 quarterly installments,
commencing on
<PAGE> 34
29
March 31, 2003, each of which shall be in an amount equal to such Lender's
Delayed-Draw Term Percentage multiplied by the percentage of the Delayed-Draw
Aggregate Funded Amount set forth below opposite such installment:
<TABLE>
<CAPTION>
Installment Percentage
----------- ----------
<S> <C>
March 31, 2003 2.50%
June 30, 2003 2.50%
September 30, 2003 2.50%
December 31, 2003 2.50%
March 31, 2004 3.75%
June 30, 2004 3.75%
September 30, 2004 3.75%
December 31, 2004 3.75%
March 31, 2005 5.00%
June 30, 2005 5.00%
September 30, 2005 5.00%
December 31, 2005 5.00%
March 31, 2006 6.25%
June 30, 2006 6.25%
September 30, 2006 6.25%
December 31, 2006 6.25%
March 31, 2007 7.50%
June 30, 2007 7.50%
September 30, 2007 7.50%
December 31, 2007 7.50%
</TABLE>
(b) The Tranche B Term Loans of each Tranche B Term Lender
shall mature in 21 consecutive quarterly installments (each due on the last day
of each calendar quarter), commencing on March 31, 2003, each of which shall be
in an amount equal to such Lender's Tranche B Term Percentage multiplied by (i)
in the case of the first 20 such installments, 0.25% of the Tranche B Aggregate
Funded Amount and (ii) in the case of the last such installment (which shall be
due on March 31, 2008), 95.0% of the Tranche B Aggregate Funded Amount.
(c) The Total Revolving Commitments shall be permanently
reduced on the last day of each fiscal year of TWTC set forth below by an
aggregate amount equal to the percentage of the Revolving Aggregate Committed
Amount set forth opposite such date:
<TABLE>
<CAPTION>
Fiscal Year Percentage
----------- ----------
<S> <C>
2004 5.0%
2005 15.0%
2006 30.0%
2007 50.0%
</TABLE>
(d) (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
<PAGE> 35
30
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 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.
2.4. Swingline Commitment. (a) 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 of Swingline Loans outstanding at any time shall not exceed the Swingline
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.
(b) The Borrower shall repay all outstanding Swingline Loans
on the Revolving Termination Date.
2.5. Procedure for Swingline Borrowing; Refunding of Swingline
Loans. (a) Whenever the Borrower desires that the Swingline Lender make
Swingline Loans it shall give the Swingline Lender irrevocable telephonic notice
confirmed promptly in writing (which telephonic notice must be received by the
Swingline Lender not later than 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
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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).
(b) 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 Administrative Agent to the Swingline
Lender for application by the Swingline Lender to the repayment of the Refunded
Swingline Loans. The Borrower irrevocably authorizes the Swingline Lender to
charge the Borrower's accounts with the Administrative Agent (up to the amount
available in each such account) in order to immediately pay the amount of such
Refunded Swingline Loans to the extent amounts received from the Revolving
Lenders are not sufficient to repay in full such Refunded Swingline Loans.
(c) If prior to the time a Revolving Loan would have otherwise
been made pursuant to Section 2.5(b), one of the events described in Section
8(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.
(d) Whenever, at any time after the Swingline Lender has
received from any Revolving Lender such Lender's Swingline Participation Amount,
the Swingline Lender receives any payment on account of the Swingline Loans, the
Swingline Lender will distribute to such Lender its Swingline Participation
Amount (appropriately adjusted, in the case of interest payments, to reflect the
period of time during which such Lender's participating interest was outstanding
and funded and, in the case of principal and interest payments, to reflect such
Lender's pro rata portion of such payment if such payment is not sufficient to
pay the principal of and interest on all Swingline Loans then due); provided,
however, that in the event that such payment received by the Swingline Lender is
required to be returned, such Revolving Lender will return to the Swingline
Lender any portion thereof previously distributed to it by the Swingline Lender.
(e) Each Revolving Lender's obligation to make the Loans
referred to in Section 2.5(b) and to purchase participating interests pursuant
to Section 2.5(c) shall be absolute and
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unconditional and shall not be affected by any circumstance, including (i) any
setoff, counterclaim, recoupment, defense or other right that such Revolving
Lender or the Borrower may have against the Swingline Lender, the Borrower or
any other Person for any reason whatsoever; (ii) the occurrence or continuance
of a Default or an Event of Default or the failure to satisfy any of the other
conditions specified in Section 5; (iii) any adverse change in the condition
(financial or otherwise) of the Borrower; (iv) any breach of this Agreement or
any other Loan Document by the Borrower, any other Loan Party or any other
Revolving Lender; or (v) any other circumstance, happening or event whatsoever,
whether or not similar to any of the foregoing.
2.6. Commitment Fees, etc. (a) The Borrower agrees to pay to
the Administrative Agent for the account of each Revolving Lender a commitment
fee for the period from and including the Restatement Effective 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.
(b) The Borrower agrees to pay to the Administrative Agent for
the account of each Delayed-Draw Term Lender a commitment fee for the period
from and including the Restatement Effective Date to the date on which the
Delayed-Draw Term Commitments have been fully utilized or terminated, computed
at the Commitment Fee Rate on the average daily amount of the Available
Delayed-Draw Term Commitments 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 date on which the Delayed-Draw Term
Commitments have been fully utilized or terminated, commencing on the first of
such dates to occur after the date hereof.
(c) The Borrower agrees to pay to the Administrative Agent the
fees in the amounts and on the dates previously agreed to in writing by the
Borrower and the Administrative Agent.
2.7. Optional Termination or Reduction of 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 and Delayed-Draw Term Commitments or, from time to time, to reduce
the amount of the Revolving Commitments and Delayed-Draw Term 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 ratably and permanently the Revolving
Commitments and Delayed-Draw Term Commitments then in effect.
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2.8. Optional Prepayments. Subject to Section 2.9(d), 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 Term Loans and 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.
2.9. 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 prepay the Term Loans and permanently reduce the Revolving
Commitments and the Delayed-Draw Term Commitments as follows:
(a) Except to the extent required to refinance or replace any
bridge financings or Rollover Notes pursuant to the terms of any Additional
Financing, if any Capital Stock or Indebtedness shall be issued or incurred by
TWTC or any of its Subsidiaries (excluding any Indebtedness permitted under
Section 7.2, the Net Cash Proceeds of any issuance of TWTC's Capital Stock to
the extent used to finance the cost of capital expenditures permitted under
Section 7.7 or the business plan as described in the Confidential Information
Memorandum) after the Restatement Effective Date, 100% of the Net Cash Proceeds
thereof shall be applied on the date of such issuance or incurrence toward the
prepayment of the Term Loans and the reduction of the Revolving Commitments and
the Delayed-Draw Term Commitments as set forth in accordance with Section
2.9(d).
(b) 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 Term Loans and the reduction of the Revolving Commitments
and the Delayed-Draw Term Commitments as set forth in Section 2.9(d); 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, other than with respect to Asset Sales permitted under
Section 7.5(i), at any time (in each case, 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
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Prepayment Amount with respect to the relevant Reinvestment Event shall be
applied toward the prepayment of the Term Loans and the reduction of the
Revolving Commitments and the Delayed-Draw Term Commitments as set forth in
Section 2.9(d).
(c) If, for any fiscal year of TWTC commencing with the 2003
fiscal year, 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 Term Loans and the reduction of
the Revolving Commitments and the Delayed-Draw Term Commitments as set forth in
Section 2.9(d). 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.
(d) Amounts to be applied in connection with prepayments of
Term Loans and reductions of Revolving Commitments and Delayed-Draw Term
Commitments made pursuant to Section 2.9 shall be applied, first, to the
prepayment of the Term Loans and, second, to reduce ratably and permanently the
Revolving Commitments and the Delayed-Draw Term 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.
(e) Notwithstanding anything to the contrary in Section 2.8,
2.9(d) or 2.15, with respect to the amount of optional or mandatory prepayment
described in Section 2.8 and Section 2.9, respectively, that is allocated to
Tranche B Term Loans (such amount, the "Tranche B Prepayment Amount"), at any
time when Delayed-Draw Term Loans remain outstanding, the Borrower will, in lieu
of applying automatically such amount to the prepayment of Tranche B Term Loans,
as provided in Section 2.8 or Section 2.9(d), as the case may be, at least five
Business Days prior to the date on which the Borrower expects to make such
prepayment, give the Administrative Agent telephonic notice (promptly confirmed
in writing) requesting that the Administrative Agent prepare and provide to each
Tranche B Term Lender a notice (each, a "Prepayment Option Notice") as described
below. As promptly as practicable after receiving such notice from the Borrower,
the Administrative Agent will send to each Tranche B Term Lender a Prepayment
Option Notice, which shall be in the form of Exhibit F, and shall include an
offer by the Borrower to prepay the relevant Tranche B Term Loans of such Lender
by an amount equal to such Lender's Tranche B Term Percentage multiplied by the
Tranche B
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Prepayment Amount on the date of such expected prepayment (each, a "Prepayment
Date"). Each Tranche B Term Lender shall give notice to the Administrative Agent
prior to the applicable Prepayment Date if it elects to accept all or any
portion of such prepayment, and each Tranche B Term Lender which has not
notified the Administrative Agent of whether or not it elects to accept such
prepayment shall be deemed to have accepted such prepayment. On the Prepayment
Date, (i) the Borrower shall pay to the relevant Tranche B Term Lenders that
have not expressly rejected their Prepayment Option Notice the amount indicated
in such Notice, and such amount shall be applied toward the prepayment of the
Tranche B Term Loans and (ii) the Borrower shall pay to the Delayed-Draw Term
Lenders an amount equal to the portion of the Tranche B Prepayment Amount
expressly rejected by the relevant Tranche B Term Lenders, and such amount shall
be applied toward the prepayment of the Delayed-Draw Term Loans.
2.10. Conversion and Continuation Options. (a) The Borrower
may elect from time to time to convert Eurodollar Loans to ABR Loans by giving
the Administrative Agent at least two Business Days' prior irrevocable notice of
such election, provided that any such conversion of Eurodollar Loans may only be
made on the last day of an Interest Period with respect thereto. The Borrower
may elect 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 has or the Majority Facility Lenders in respect of such
Facility 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 Majority Facility Lenders in respect of such Facility 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.
2.11. 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 20 Eurodollar Tranches shall be outstanding at any one time.
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2.12. Interest Rates and Payment Dates. (a) Each Eurodollar
Loan shall bear interest for each day during each Interest Period with respect
thereto at a rate per annum equal to the Eurodollar Rate determined for such day
plus the Applicable Margin.
(b) Each ABR Loan shall bear interest at a rate per annum
equal to the ABR plus the Applicable Margin.
(c) (i) If all or a portion of the principal amount of any
Loan or Reimbursement Obligation shall not be paid when due (whether at the
stated maturity, by acceleration or otherwise), such 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 under the Revolving Facility plus 2%, and (ii) if
all or a portion of any interest payable on any Loan or Reimbursement Obligation
or any commitment fee or other amount payable hereunder shall not be paid when
due (whether at the stated maturity, by acceleration or otherwise), such overdue
amount shall bear interest at a rate per annum equal to the rate then applicable
to ABR Loans under the relevant Facility plus 2% (or, in the case of any such
other amounts that do not relate to a particular Facility, the rate then
applicable to ABR Loans under the Revolving Facility plus 2%), in each case,
with respect to clauses (i) and (ii) above, from the date of such non-payment
until such amount is paid in full (as well after as before judgment).
(d) Interest shall be payable in arrears on each Interest
Payment Date, provided that interest accruing pursuant to paragraph (c) of this
Section shall be payable from time to time on demand.
2.13. Computation of Interest and Fees. (a) Interest and fees
payable pursuant hereto shall be calculated on the basis of a 360-day year for
the actual days elapsed, except that, with respect to ABR Loans the rate of
interest on which is calculated on the basis of the Prime Rate, the interest
thereon shall be calculated on the basis of a 365- (or 366-, as the case may be)
day year for the actual days elapsed. The Administrative Agent shall as soon as
practicable notify the Borrower and the relevant Lenders of each determination
of a Eurodollar Rate. Any change in the interest rate on a Loan resulting from a
change in the ABR or the Eurocurrency Reserve Requirements shall become
effective as of the opening of business on the day on which such change becomes
effective. The Administrative Agent shall as soon as practicable notify the
Borrower and the relevant Lenders of the effective date and the amount of each
such change in interest rate.
(b) Each determination of an interest rate by the
Administrative Agent pursuant to any provision of this Agreement shall be
conclusive and binding on the Borrower and the Lenders in the absence of
manifest error. The Administrative Agent shall, at the request of the Borrower,
deliver to the Borrower a statement showing the quotations used by the
Administrative Agent in determining any interest rate pursuant to Section 2.12.
2.14. Inability to Determine Interest Rate. If prior to the
first day of any Interest Period:
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(a) the Administrative Agent shall have determined (which
determination shall be conclusive and binding upon the Borrower) that,
by reason of circumstances affecting the relevant market, adequate and
reasonable means do not exist for ascertaining the Eurodollar Rate for
such Interest Period, or
(b) the Administrative Agent shall have received notice from
the Required Lenders that the Eurodollar Rate determined or to be
determined for such Interest Period will not adequately and fairly
reflect the cost to such Lenders (as conclusively certified by such
Lenders) of making or maintaining their affected Loans during such
Interest Period,
the Administrative Agent shall give telecopy or telephonic notice thereof to the
Borrower and the relevant Lenders as soon as practicable thereafter. If such
notice is given (x) 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 Eurodollar Loans shall be made or continued as such, nor shall the
Borrower have the right to convert Loans to Eurodollar Loans.
2.15. Pro Rata Treatment and Payments. (a) Each borrowing by
the Borrower from the Lenders hereunder, each payment by the Borrower on account
of any commitment fee and any reduction of the Commitments of the Lenders shall
be made pro rata according to the respective Delayed-Draw Term Percentages,
Tranche B Term Percentages or Revolving Percentages, as the case may be, of the
relevant Lenders.
(b) Each payment other than an optional prepayment (including
each mandatory prepayment) by the Borrower on account of principal of and
interest on the Term Loans shall be made pro rata according to the respective
outstanding principal amounts of the Term Loans then held by the Term Lenders
(except as otherwise provided in Section 2.9(e)). The amount of each mandatory
principal prepayment of the Term Loans shall be applied to reduce the then
remaining installments of the Delayed-Draw Term Loans and Tranche B Term Loans,
as the case may be, pro rata based upon the then remaining principal amount
thereof. Notwithstanding anything to the contrary herein, each optional
prepayment of the Delayed-Draw Term Loans and Tranche B Term Loans shall be
applied first, towards the next scheduled installment payment of such Term Loans
pursuant to Section 2.3 and second, to reduce the then remaining installments of
such Term Loans pro rata based upon the then remaining principal amount thereof.
Amounts paid on account of the Term Loans may not be reborrowed.
(c) Each payment (including each prepayment) by the Borrower
on account of principal of and interest on the Revolving Loans shall be made pro
rata according to the respective outstanding principal amounts of the Revolving
Loans then held by the Revolving Lenders.
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(d) All payments (including prepayments) to be made by the
Borrower hereunder, whether on account of principal, interest, fees or
otherwise, shall be made without setoff or counterclaim and shall be made prior
to 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.
(e) Unless the Administrative Agent shall have been notified
in writing by any Lender prior to a borrowing that such Lender will not make the
amount that would constitute its share of such borrowing available to the
Administrative Agent, the Administrative Agent may assume that such Lender is
making such amount available to the Administrative Agent, and the Administrative
Agent may, in reliance upon such assumption, make available to the Borrower a
corresponding amount. If such amount is not made available to the Administrative
Agent by the required time on the Borrowing Date therefor, such Lender shall pay
to the Administrative Agent, on demand, such amount with interest thereon at a
rate equal to the daily average Federal Funds Effective Rate for the period
until such Lender makes such amount immediately available to the Administrative
Agent. A certificate of the Administrative Agent submitted to any Lender with
respect to any amounts owing under this paragraph shall be conclusive in the
absence of manifest error. If such Lender's share of such borrowing is not made
available to the Administrative Agent by such Lender within three Business Days
of such Borrowing Date, the Administrative Agent shall also be entitled to
recover such amount with interest thereon at the rate per annum applicable to
ABR Loans under the relevant Facility, on demand, from the Borrower.
(f) Unless the Administrative Agent shall have been notified
in writing by the Borrower prior to the date of any payment being made hereunder
that the Borrower will not make such payment to the Administrative Agent, the
Administrative Agent may assume that the Borrower is making such payment, and
the Administrative Agent may, but shall not be required to, in reliance upon
such assumption, make available to the Lenders their respective pro rata shares
of a corresponding amount. If such payment is not made to the Administrative
Agent by the Borrower within three Business Days of such required date, the
Administrative Agent shall be entitled to recover, on demand, from each Lender
to which any amount which was made available pursuant to the preceding sentence,
such amount with interest thereon at the rate per annum equal to the daily
average Federal Funds Effective Rate. Nothing herein shall be deemed to limit
the rights of the Administrative Agent or any Lender against the Borrower.
2.16. Requirements of Law. (a) If the adoption of or any
change in any Requirement of Law or in the interpretation or application thereof
or compliance by any Lender
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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);
(ii) shall impose, modify or hold applicable any reserve,
special deposit, compulsory loan or similar requirement against assets
held by, deposits or other liabilities in or for the account of,
advances, loans or other extensions of credit by, or any other
acquisition of funds by, any office of such Lender that is not
otherwise included in the determination of the Eurodollar Rate
hereunder; or
(iii) shall impose on such Lender any other condition;
and the result of any of the foregoing is to increase the cost to such Lender,
by an amount that such Lender deems to be material, of making, converting into,
continuing or maintaining Eurodollar Loans or issuing or participating in
Letters of Credit, or to reduce any amount receivable hereunder in respect
thereof, then, in any such case, the Borrower shall promptly pay such Lender,
upon its demand, any additional amounts necessary to compensate such Lender for
such increased cost 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.
(b) If any Lender shall have determined that the adoption of
or any change in any Requirement of Law regarding capital adequacy or in the
interpretation or application thereof or compliance by such Lender or any
corporation controlling such Lender with any request or directive regarding
capital adequacy (whether or not having the force of law) from any Governmental
Authority made subsequent to the 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.
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(c) 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.
2.17. Taxes. (a) All payments made by the Borrower under this
Agreement shall be made free and clear of, and without deduction or withholding
for or on account of, any present or future income, stamp or other taxes,
levies, imposts, duties, charges, fees, deductions or withholdings, now or
hereafter imposed, levied, collected, withheld or assessed by any Governmental
Authority, excluding net income taxes and franchise taxes (imposed in lieu of
net income taxes) imposed on the Administrative Agent or any Lender as a result
of a present or former connection between the Administrative Agent or such
Lender and the jurisdiction of the Governmental Authority imposing such tax or
any political subdivision or taxing authority thereof or therein (other than any
such connection arising solely from the Administrative Agent or such Lender
having executed, delivered or performed its obligations or received a payment
under, or enforced, this Agreement or any other Loan Document). If any such
non-excluded taxes, levies, imposts, duties, charges, fees, deductions or
withholdings ("Non-Excluded Taxes") or Other Taxes are required to be withheld
from any amounts payable to the Administrative Agent or any Lender hereunder,
the amounts so payable to the Administrative Agent or such Lender shall be
increased to the extent necessary to yield to the Administrative Agent or such
Lender (after payment of all Non-Excluded Taxes and Other Taxes) interest or any
such other amounts payable hereunder at the rates or in the amounts specified in
this Agreement, provided, however, that the Borrower shall not be required to
increase any such amounts payable to any Lender with respect to any Non-Excluded
Taxes (i) that are attributable to such Lender's failure to comply with the
requirements of paragraph (d) or (e) of this Section or (ii) that are United
States withholding taxes imposed on amounts payable to such Lender at the time
the Lender becomes a party to this Agreement, except to the extent that such
Lender's assignor (if any) was entitled, at the time of assignment, to receive
additional amounts from the Borrower with respect to such Non-Excluded Taxes
pursuant to this paragraph.
(b) In addition, the Borrower shall pay any Other Taxes to the
relevant Governmental Authority in accordance with applicable law.
(c) Whenever any Non-Excluded Taxes or Other Taxes are payable
by the Borrower, as promptly as possible thereafter the Borrower shall send to
the Administrative Agent for its own account or for the account of the relevant
Lender, as the case may be, a certified copy of an original official receipt
received by the Borrower showing payment thereof. If the Borrower fails to pay
any Non-Excluded Taxes or Other Taxes when due to the appropriate taxing
authority or fails to remit to the Administrative Agent the required receipts or
other required documentary evidence, the Borrower shall indemnify the
Administrative Agent and the Lenders for any incremental taxes, interest or
penalties that may become payable by the Administrative Agent or any Lender as a
result of any such failure.
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(d) Each Lender (or Transferee) that is not a "U.S. Person" as
defined in Section 7701(a)(30) of the Code (a "Non-U.S. Lender") shall deliver
to the Borrower and the Administrative Agent (or, in the case of a Participant,
to the Lender from which the related participation shall have been purchased)
two copies of either U.S. Internal Revenue Service Form W-8BEN or Form W-8ECI,
or, in the case of a Non-U.S. Lender claiming exemption from U.S. federal
withholding tax under Section 871(h) or 881(c) of the Code with respect to
payments of "portfolio interest", a statement substantially in the form of
Exhibit G and a Form W-8BEN, or any subsequent versions thereof or successors
thereto, properly completed and duly executed by such Non-U.S. Lender claiming
complete exemption from, 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.
(e) 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.
(f) 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.
(g) The agreements in this Section shall survive the
termination of this Agreement and the payment of the Loans and all other amounts
payable hereunder.
2.18. Indemnity. The Borrower agrees to indemnify each Lender
and to hold each Lender harmless from any loss or expense that such Lender may
sustain or incur as a consequence of (a) default by the Borrower in making a
borrowing of, conversion into or continuation of Eurodollar Loans after the
Borrower has given a notice requesting the same in
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accordance with the provisions of this Agreement, (b) default by the Borrower in
making any prepayment of or conversion from Eurodollar Loans after the Borrower
has given a notice thereof in accordance with the provisions of this Agreement
or (c) the making of a prepayment of Eurodollar Loans on a day that is not the
last day of an Interest Period with respect thereto. Such indemnification may
include an amount equal to the excess, if any, of (i) the amount of interest
that would have accrued on the amount so prepaid, or not so borrowed, converted
or continued, for the period from the date of such prepayment or of such failure
to borrow, convert or continue to the last day of such Interest Period (or, in
the case of a failure to borrow, convert or continue, the Interest Period that
would have commenced on the date of such failure) in each case at the applicable
rate of interest for such Loans provided for herein (excluding, however, the
Applicable Margin included therein, if any) over (ii) the amount of interest (as
reasonably determined by such Lender) that would have accrued to such Lender on
such amount by placing such amount on deposit for a comparable period with
leading banks in the interbank eurodollar market. A certificate as to any
amounts payable pursuant to this Section submitted to the Borrower by any Lender
shall be conclusive in the absence of manifest error. This covenant shall
survive the termination of this Agreement and the payment of the Loans and all
other amounts payable hereunder.
2.19. Change of Lending Office. Each Lender agrees that, upon
the occurrence of any event giving rise to the operation of Section 2.16 or
2.17(a) with respect to such Lender, it will, if requested by the Borrower, use
reasonable efforts (subject to overall policy considerations of such Lender) to
designate another lending office for any Loans affected by such event with the
object of avoiding the consequences of such event; provided, that such
designation is made on terms that, in the sole judgment of such Lender, cause
such Lender and its lending office(s) to suffer no economic, legal or regulatory
disadvantage, and provided, further, that nothing in this Section shall affect
or postpone any of the obligations of any Borrower or the rights of any Lender
pursuant to Section 2.16 or 2.17(a).
2.20. Replacement of Lenders. The Borrower shall be permitted
to replace any Lender that (a) requests reimbursement for amounts owing pursuant
to Section 2.16 or 2.17(a) or (b) defaults in its obligation to make Loans
hereunder, with a replacement financial institution; provided that (i) such
replacement does not conflict with any Requirement of Law, (ii) no Event of
Default shall have occurred and be continuing at the time of such replacement,
(iii) prior to any such replacement, such Lender shall 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
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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.
SECTION 3. LETTERS OF CREDIT
3.1. L/C Commitment. (a) 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).
(b) 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.
3.2. 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).
3.3. Fees and Other Charges. (a) The Borrower will pay a fee
on all outstanding Letters of Credit at a per annum rate equal to the Applicable
Margin then in effect with respect to Eurodollar Loans under the Revolving
Facility, shared ratably among the Revolving Lenders and payable quarterly in
arrears on each L/C Fee Payment Date after the issuance date. In addition, the
Borrower shall pay to the Issuing Lender for its own account a
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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.
(b) 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.
3.4. L/C Participations. (a) 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.
(b) 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 (i) such amount, times (ii) the daily average
Federal Funds Effective Rate during the period from and including the date such
payment is required to the date on which such payment is immediately available
to the Issuing Lender, times (iii) a fraction the numerator of which is the
number of days that elapse during such period and the denominator of which is
360. If any such amount required to be paid by any L/C Participant pursuant to
Section 3.4(a) is not made available to the 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.
(c) 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
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returned by the Issuing Lender, such L/C Participant shall return to the Issuing
Lender the portion thereof previously distributed by the Issuing Lender to it.
3.5. 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).
3.6. Obligations Absolute. The Borrower's obligations under
this Section 3 shall be absolute and unconditional under any and all
circumstances and irrespective of any setoff, counterclaim or defense to payment
that the Borrower may have or have had against 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.
3.7. 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.
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3.8. Applications. To the extent that any provision of any
Application related to any Letter of Credit is inconsistent with the provisions
of this Section 3, the provisions of this Section 3 shall apply.
SECTION 4. REPRESENTATIONS AND WARRANTIES
To induce the Administrative Agent and the Lenders to enter
into this Agreement and to make the Loans and issue or participate in the
Letters of Credit, TWTC and the Borrower hereby jointly and severally represent
and warrant to the Administrative Agent and each Lender that:
4.1. Financial Condition. (a) The unaudited pro forma
consolidated balance sheet of TWTC and its consolidated Subsidiaries as at June
30, 2000 (including the notes thereto) (the "Pro Forma Balance Sheet"), copies
of which have heretofore been furnished to each Lender, has been prepared giving
effect (as if such events had occurred on such date) to (i) the consummation of
the Acquisition, (ii) the Loans expected to be made on the Restatement Effective
Date as of the date on which the Pro Forma Balance Sheet was delivered and
certain Additional Financing in connection with the Acquisition and/or the
business plan of TWTC as described in the Confidential Information Memorandum
and the use of proceeds thereof and (iii) the payment of fees and expenses in
connection with the foregoing. The Pro Forma Balance Sheet has been prepared
based on information and assumptions believed by TWTC to be reasonable as of the
date of delivery thereof, and presents fairly, based on such information and
assumptions, on a pro forma basis the estimated financial position of TWTC and
its consolidated Subsidiaries as at June 30, 2000, assuming that the events
specified in the preceding sentence had actually occurred at such date.
(b) 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 June 30, 2000, and the related unaudited consolidated statements of
income and cash flows for the six-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
six-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 June
30, 2000 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.
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4.2. No Change. Since June 30, 2000, there has been no
development or event that has had or could reasonably be expected to have a
Material Adverse Effect.
4.3. 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 power and
authority under its constitutive documents, 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, partnership or limited liability company, 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.
4.4. Power; Authorization; Enforceable Obligations. Each Loan
Party has the power and authority under its constitutive documents, and the
legal right, to make, deliver and perform the Loan Documents to which it is a
party and, in the case of the Borrower, to obtain extensions of credit
hereunder. Each Loan Party has taken all necessary organizational action under
its constitutive documents to authorize the execution, delivery and performance
of the Loan Documents to which it is a party and, in the case of the Borrower,
to authorize the 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
have been obtained or made and are in full force and effect unless otherwise
indicated on Schedule 4.4 and (ii) the filings referred to in Section 4.19. Each
Loan Document has been duly executed and delivered on behalf of each Loan Party
party thereto. This Agreement constitutes, and each other Loan Document upon
execution will constitute, a legal, valid and binding obligation of each Loan
Party party thereto, enforceable against each such Loan Party in accordance with
its terms, except as enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting the enforcement
of creditors' rights generally and by general equitable principles (whether
enforcement is sought by proceedings in equity or at law).
4.5. No Legal Bar. The execution, delivery and performance of
this Agreement and the other Loan Documents, the issuance of Letters of Credit,
the borrowings hereunder and the use of the proceeds thereof will not violate
any 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
permitted under Section 7.3). 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.
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4.6. 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.
4.7. 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.
4.8. 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. TWTC has no Lien on the assets of any of its limited
partnership Subsidiaries pursuant to its limited partnership interests or
otherwise and any claim or interest that TWTC has in such assets is subordinated
and junior in right to that of the Lenders.
4.9. 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.
4.10. 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 which 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 (except, in each
case, for taxes in respect of GST or its affiliates in an aggregate amount not
to exceed the amount held back from the purchase price paid by TWTC to GST and
its affiliates in connection with the Acquisition).
4.11. 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
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49
to the Administrative Agent and each Lender a statement to the foregoing effect
in conformity with the requirements of FR Form G-3 or FR Form U-1, as
applicable, referred to in Regulation U.
4.12. Labor Matters. Except as, in the aggregate, could not
reasonably be expected to have a Material Adverse Effect: (a) there are no
strikes or other labor disputes against 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.
4.13. 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.
4.14. Investment Company Act; Other Regulations. No Loan Party
is an "investment company", or a company "controlled" by an "investment
company", within the meaning of the Investment Company Act of 1940, as amended.
No Loan Party is subject to regulation under any Requirement of Law (other than
Regulation X of the Board) that limits its ability to incur Indebtedness.
4.15. Subsidiaries. Except as disclosed to the Administrative
Agent by the Borrower in writing from time to time after the Restatement
Effective Date, (a) 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 (b) 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'
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50
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.
4.16. Use of Proceeds. The proceeds of the Term Loans shall be
used to finance the Acquisition and to pay related fees and expenses. The
remaining portion of the proceeds of the Term Loans, if any, and the proceeds of
the Revolving Loans, 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, fiber network construction and any business reasonably related to the
foregoing.
4.17. 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
<PAGE> 56
51
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.
4.18. 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. To the best knowledge
of TWTC and the Borrower, as of the Restatement Effective Date, the
representations and warranties contained in the GST Asset Purchase Agreement are
true and correct in all material respects. 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 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.
4.19. Security Documents. The Guarantee and Collateral
Agreement is effective to create or continue 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).
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52
4.20. Solvency. Except for any Shell Subsidiaries, each Loan
Party is, and after giving effect to the Acquisition and the incurrence of all
Indebtedness and obligations being incurred in connection herewith and therewith
will be and will continue to be, Solvent.
4.21. Certain Documents. The Borrower has delivered to the
Administrative Agent a complete and correct copy of the GST Asset Purchase
Agreement, including any amendments, supplements or modifications with respect
to any of the foregoing.
SECTION 5. CONDITIONS PRECEDENT
5.1. Conditions to the Initial Extension of Credit on or After
the Restatement Effective Date. 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
Restatement Effective 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.
(b) Additional Financing. The Administrative Agent shall have
received evidence, in form, scope and substance reasonably satisfactory
to the Administrative Agent and the Arranger, that TWTC shall have
received cash proceeds of the Additional Financing in an aggregate
amount of no less than $700,000,000, and that all such funds shall have
been made available.
(c) Approvals. All material governmental and third party
approvals (other than in connection with the consummation of the
Acquisition) necessary or, in the reasonable discretion of the
Administrative Agent, advisable 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.
(d) Closing Certificate. The Administrative Agent shall have
received, with a counterpart for each Lender, a certificate of each
Loan Party, dated the Restatement Effective Date, substantially in the
form of Exhibit C, with appropriate insertions and attachments.
(e) Legal Opinions. The Administrative Agent shall have
received the following executed legal opinions:
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53
(i) the legal opinion of Cravath, Swaine & Moore,
counsel to TWTC and its Subsidiaries, in form and substance
reasonably satisfactory to the Administrative Agent;
(ii) 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
(iii) 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.
(f) Lien Searches. The Administrative Agent shall have
received the results of a recent Uniform Commercial Code lien search in
each relevant jurisdiction with respect to the assets to be owned by
TWTC and its Subsidiaries as of the Restatement Effective 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 or discharged on
or prior to the Restatement Effective Date pursuant to documentation
satisfactory to the Administrative Agent.
(g) 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.
(h) 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.
(i) Insurance. The Administrative Agent shall have received
insurance certificates satisfying the requirements of Section 5.2(b) of
the Guarantee and Collateral Agreement.
(j) 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 Restatement Effective
Date.
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54
(k) Intercompany Debt. All Indebtedness of the Borrower or any
Subsidiary to TWTC shall be evidenced by an Intercompany Subordinated
Note.
(l) Pro Forma Balance Sheet; Financial Statements. The Lenders
shall have received (i) the Pro Forma Balance Sheet and (ii) the
financial statements referred to in Section 4.1(b).
(m) 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.
5.2. Conditions to Each Extension of Credit. The agreement of
each Lender to make any extension of credit requested to be made by it on any
date (including its initial extension of credit) is subject to the satisfaction
of the following conditions precedent:
(a) Representations and Warranties. Each of the
representations and warranties made by any Loan Party in or pursuant to
the Loan Documents shall be true and correct on and as of such date as
if made on and as of such date.
(b) No Default. No Default or Event of Default shall have
occurred and be continuing on such date or after giving effect to the
extensions of credit requested to be made on such date.
(c) No Violation of the Indenture. TWTC shall certify 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 5.2 have been satisfied.
SECTION 6. 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:
6.1. 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
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55
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
(b) 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
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.
6.2. Certificates; Other Information. Furnish to the
Administrative Agent for duplication and distribution to the Lenders (or, in the
case of clause (f), 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;
(b) concurrently with the delivery of any financial statements
pursuant to Section 6.1, (i) a certificate of a Responsible Officer
stating that, to the best of each such Responsible Officer's knowledge,
each Loan Party during such period has observed or performed 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
<PAGE> 61
56
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 Restatement Effective Date);
(c) 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);
(d) 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;
(e) 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 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
(f) 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
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57
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.
6.3. Payment of Obligations. Pay, discharge or otherwise
satisfy at or before maturity or before they become delinquent, as the case may
be, all its 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.
6.4. 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.
6.5. Maintenance of Property; Insurance. (a) 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.
6.6. Inspection of Property; Books and Records; Discussions.
(a) Keep proper books of records and account in which full, true and correct
entries in conformity with GAAP and all Requirements of Law shall be made of all
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.
6.7. Notices. Promptly give notice to the Administrative Agent
of:
(a) the occurrence of any Default or Event of Default;
(b) 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
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58
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;
(c) 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;
(d) 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
(e) 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.
6.8. Environmental Laws. (a) 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.
(b) 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.
6.9. Additional Collateral, etc. (a) With respect to any
property acquired after the Restatement Effective 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
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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.
(b) 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 Restatement Effective 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.
(c) With respect to any new Subsidiary (other than an Excluded
Foreign Subsidiary) created or acquired after the Restatement Effective 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
<PAGE> 65
60
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 Restatement Effective
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.
(d) With respect to any new Excluded Foreign Subsidiary
created or acquired after the Restatement Effective 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 Restatement Effective
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.
SECTION 7. 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:
7.1. Financial Condition Covenants.
(a) Senior Leverage Ratio. Permit the Senior Leverage Ratio as
of the last day of any fiscal quarter of TWTC during the period set forth below
to exceed the ratio set forth below opposite such period:
<TABLE>
<CAPTION>
Senior
Period Leverage Ratio
------ --------------
<S> <C>
Restatement Effective Date - 06/30/01 5.00 to 1.0
07/01/01 - 12/31/01 4.50 to 1.0
01/01/02 - 06/30/02 4.00 to 1.0
07/01/02 - 12/31/02 3.50 to 1.0
01/01/03 - thereafter 3.00 to 1.0
</TABLE>
<PAGE> 66
61
(b) Consolidated Leverage Ratio. Permit the Consolidated
Leverage Ratio as of the last day of any fiscal quarter of TWTC during the
period set forth below to exceed the ratio set forth below opposite such period:
<TABLE>
<CAPTION>
Consolidated
Period Leverage Ratio
------ --------------
<S> <C>
Restatement Effective Date - 16.00 to 1.0
03/31/01
04/01/01 - 06/30/01 15.00 to 1.0
07/01/01 - 09/30/01 13.00 to 1.0
10/01/01 - 12/31/01 12.00 to 1.0
01/01/02 - 03/31/02 10.00 to 1.0
04/01/02 - 06/30/02 8.00 to 1.0
07/01/02 - 09/30/02 7.00 to 1.0
10/01/02 - 12/31/02 6.00 to 1.0
01/01/03 - 03/31/03 5.50 to 1.0
04/01/03 - thereafter 5.00 to 1.0
</TABLE>
(c) 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 during the period set forth
below to be less than the ratio set forth below opposite such period:
<TABLE>
<CAPTION>
Consolidated Interest
Period Coverage Ratio
------ ---------------------
<S> <C>
07/01/02 - 09/30/02 1.00 to 1.0
10/01/02 - 12/31/02 1.25 to 1.0
01/01/03 - 06/30/03 1.50 to 1.0
07/01/03 - thereafter 2.00 to 1.0
</TABLE>
(d) 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.
7.2. Indebtedness. Create, issue, incur, assume, become liable
in respect of or suffer to exist any Indebtedness, except:
(a) Indebtedness of any Loan Party pursuant to any Loan
Document or under the Incremental Facility, if any;
(b) Indebtedness of the Borrower to any Subsidiary and of any
Wholly Owned Subsidiary Guarantor to the Borrower or any other
Subsidiary;
(c) 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
<PAGE> 67
62
Guarantor and (ii) by TWTC of obligations of its Subsidiaries with
respect to such Subsidiaries' real estate leases;
(d) 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);
(e) Indebtedness (including, without limitation, Capital Lease
Obligations other than the Capital Lease Obligations assumed pursuant
to the GST Asset Purchase Agreement) 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;
(f) 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;
(g) 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;
(h) 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;
(i) 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;
<PAGE> 68
63
(j) 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;
(k) Indebtedness of the Borrower or any Wholly Owned
Subsidiary Guarantor to TWTC evidenced by an Intercompany Subordinated
Note;
(l) 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);
(m) 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 $20,000,000 at any one time outstanding;
(n) 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;
(o) any Additional Financing so long as (i) no Default or
Event of Default has occurred and is continuing or would result
therefrom (other than in connection with any refinancings of any bridge
financing, including the issuance of any Rollover Notes), (ii) such
Indebtedness (other than bridge financings in effect on the date hereof
which would allow TWTC to convert such bridge financings into
Indebtedness that would be in compliance with this paragraph) shall not
mature or be redeemable prior to the date that is one year after the
final maturity date of the Loans and the expiration of the Commitments
hereunder, (iii) to the extent the Net Cash Proceeds thereof are not
(x) being used to finance the Acquisition, (y) required to be applied
towards the repayment of any bridge financing pursuant to the terms of
such bridge financing or (z) being used to refinance any Rollover
Notes, 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 (other than in connection with any
refinancings of any bridge financing, including the issuance of any
Rollover Notes) 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;
and
(p) Indebtedness (including, without limitation, Capital Lease
Obligations) assumed pursuant to the GST Asset Purchase Agreement in an
aggregate principal amount not to exceed $30,000,000 at any one time
outstanding.
7.3. Liens. Create, incur, assume or suffer to exist any Lien
upon any of its property, whether now owned or hereafter acquired, except for:
<PAGE> 69
64
(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;
(b) carriers', warehousemen's, mechanics', materialmen's,
repairmen's or other like Liens arising in the ordinary course of
business that are not overdue for a period of more than 30 days or that
are being contested in good faith by appropriate proceedings;
(c) pledges or deposits in connection with workers'
compensation, unemployment insurance and other social security
legislation and deposits securing liability to insurance carriers under
insurance or self-insurance arrangements;
(d) 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;
(e) 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;
(f) 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
Restatement Effective Date and that the amount of Indebtedness secured
thereby is not increased;
(g) 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;
(h) Liens created pursuant to the Security Documents;
(i) 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;
(j) 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
<PAGE> 70
65
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;
(k) 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; and
(l) Permitted Encumbrances with respect to the Assets.
7.4. Fundamental Changes. Enter into any merger, consolidation
or amalgamation, or liquidate, wind up or dissolve itself (or suffer any
liquidation or dissolution), or Dispose of, all or substantially all of its
property or business, except that:
(a) 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);
(b) 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
(c) any Shell Subsidiary may be dissolved.
7.5. 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;
(b) 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;
(c) Dispositions permitted by Section 7.4(b);
(d) the sale or issuance of TWTC's common stock or preferred
stock to any Person, provided that (i) to the extent the Net Cash
Proceeds thereof are not (a) required to be applied towards the
repayment of any bridge financing described in the definition of
Additional Financing pursuant to the terms of such bridge financing,
(b) being used to
<PAGE> 71
66
replace or refinance any Rollover Notes or (c) being used for any
purpose permitted under Section 7.9, 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) and (ii)
if such preferred stock constitutes Cash Pay Preferred Stock, it is
issued in compliance with Section 7.2;
(e) the sale or issuance of any Subsidiary's Capital Stock to
the Borrower or any Wholly Owned Subsidiary Guarantor;
(f) 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);
(g) 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 prepayment of the Term Loans and the permanent
reduction of the Revolving Commitments and the Delayed-Draw Term
Commitments to the extent required by Section 2.9(b);
(h) 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 shall be
applied to the prepayment of the Term Loans and the permanent reduction
of the Revolving Commitments and the Delayed-Draw Term Commitments to
the extent required by Section 2.9(b); and
(i) the Disposition of Assets having a fair market value not
to exceed $200,000,000 in the aggregate, provided that the Net Cash
Proceeds of such Disposition are received on or prior to the second
anniversary of the Restatement Effective Date, and provided further
that the Net Cash Proceeds of such Disposition shall be applied to the
prepayment of the Term Loans and the permanent reduction of the
Revolving Commitments and the Delayed-Draw Term Commitments to the
extent required by Section 2.9(b).
7.6. Restricted Payments. Declare or pay any dividend (other
than dividends payable solely in common stock or Non-Cash Pay Preferred 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, or make any
payment on
<PAGE> 72
67
account of any advance or loan made by TWTC or any Subsidiary, 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;
(b) 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's 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;
(c) the Borrower may pay dividends (or make distributions or
advancements) to TWTC for the purpose of enabling TWTC to make
scheduled interest payments (or, if applicable, dividends) in respect
of any Indebtedness of TWTC incurred pursuant to Section 7.2(g) or
7.2(o), 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 or dividend payment, as the case may
be, is due;
(d) the Borrower may pay dividends (or make distributions or
advancements) to TWTC for the purpose of enabling TWTC to make
scheduled interest payments (or, if applicable, dividends) in respect
of the Senior Notes and other Indebtedness of TWTC that is senior and
is incurred pursuant to Section 7.2(g) or 7.2(o), 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 or dividend payment, as the case
may be, is due;
(e) 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 Non-Cash Pay Preferred Stock;
(f) 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
<PAGE> 73
68
(g) 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 business and (ii)
pay any taxes that are due and payable by TWTC and the Borrower as part
of a consolidated group.
7.7. Capital Expenditures. Unless the ratio of Consolidated
Total Debt to Annualized Consolidated EBITDA as at the last day of 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 of TWTC set forth below the dollar amount set forth below opposite such
fiscal year:
<TABLE>
<CAPTION>
Fiscal Year Amount
----------- ------
<S> <C>
2000 $500,000,000
2001 $790,000,000
2002 $800,000,000
2003 $640,000,000
2004 $680,000,000
2005 $760,000,000
2006 $800,000,000
2007 $850,000,000
2008 $910,000,000
2009 $970,000,000
</TABLE>
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.
7.8. 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;
(b) Investments in Cash Equivalents;
(c) Guarantee Obligations permitted by Section 7.2;
(d) loans and advances to officers, directors or employees of
TWTC or any Subsidiary of TWTC in the ordinary course of business
(including for travel,
<PAGE> 74
69
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;
(e) 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;
(f) 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;
(g) 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;
(h) 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
Non-Cash Pay Preferred Stock; and
(i) 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 $60,000,000 at
any one time; provided, that if TWT New Jersey is a party to the
Guarantee and Collateral Agreement either (i) on the Restatement
Effective Date or (ii) on or prior to January 31, 2001, then on the
date on which it becomes a party, the amount of Investments permitted
by this paragraph shall be increased to $75,000,000.
7.9. 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 any Additional
Financing or other Indebtedness of TWTC permitted by Section 7.2(g) other than
with the proceeds of a refinancing that (i) is on terms not materially less
favorable to the Lenders than the Indebtedness being refinanced and (ii) matures
no earlier than the date that is one year after the final maturity date of the
Loans and the expiration of the Commitments hereunder 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 or any
Additional Financing or other Indebtedness of TWTC permitted by Section 7.2(g)
in any manner materially adverse to the Lenders.
7.10. 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
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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.
7.11. 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 Restatement Effective Date and
permitted by Section 7.3(k) or properties acquired after the Restatement
Effective Date and permitted by Section 7.3(g).
7.12. 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.
7.13. 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
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, and agreements assumed pursuant to
the GST Asset Purchase Agreement granting an indefeasible right of use in fiber
or conduits or providing for joint construction or marketing of fiber or
conduits) 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), (h) the Indenture and (i) the agreements
governing the Additional Financing.
7.14. 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 or of TWTC 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
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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.
7.15. 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, fiber network construction
and sales 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) 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
Restatement Effective Date and providing transitional services to GST, its
affiliates or transferees as required under the GST Asset Purchase Agreement).
7.16. 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.
7.17. Amendments to GST Asset Purchase Agreement. (a) Amend,
supplement or otherwise modify (pursuant to a waiver or otherwise) the terms and
conditions of the indemnities furnished to any Loan Party or any of its
Subsidiaries pursuant to the GST Asset Purchase Agreement in any manner that
could reasonably be expected to have a Material Adverse Effect.
7.18. Assets of TWT New Jersey. In the case of TWT New Jersey,
until such date as it is deemed to be a Subsidiary Guarantor, have properties or
assets (including cash and Cash Equivalents) in an aggregate amount greater than
$15,000,000.
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SECTION 8. EVENTS OF DEFAULT
If any of the following events shall occur and be continuing:
(a) the Borrower shall fail to pay any principal of any Loan
or Reimbursement Obligation when due in accordance with the terms
hereof; or the Borrower shall fail to pay any interest on any Loan or
Reimbursement Obligation, or any other amount payable hereunder or
under any other Loan Document, within five days after any such interest
or other amount becomes due in accordance with the terms hereof; or
(b) any representation or warranty made or deemed made by any
Loan Party herein or in any other Loan Document or that is contained in
any certificate, document or financial or other statement furnished by
it at any time under or in connection with this Agreement or any such
other Loan Document shall prove to have been inaccurate in any material
respect on or as of the date made or deemed made; or
(c) any Loan Party shall default in the observance or
performance of any agreement contained in clause (i) or (ii) of Section
6.4(a) (with respect to 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
(d) any Loan Party shall default in the observance or
performance of any other agreement contained in this Agreement or any
other Loan Document (other than as provided in paragraphs (a) through
(c) of this Section), and such default shall continue unremedied for a
period of 30 days after notice to the Borrower from the Administrative
Agent or the Required Lenders; or
(e) 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
(f) (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
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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
(g) (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
(h) 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,
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$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
(i) 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
(j) 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
(k) 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
(l) (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. is expressly permitted
hereunder and shall not 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
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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.
SECTION 9. THE AGENTS
9.1. Appointment. Each Lender hereby irrevocably designates
and appoints the Administrative Agent as the agent of such Lender under this
Agreement and the other Loan Documents, and each such Lender irrevocably
authorizes the Administrative Agent, in such capacity, to take such action on
its behalf under the provisions of this Agreement and the other Loan Documents
and to exercise such powers and perform such duties as are expressly delegated
to the Administrative Agent by the terms of this Agreement and the other Loan
Documents, together with such other powers as are reasonably incidental thereto.
Notwithstanding any provision to the contrary elsewhere in this Agreement, the
Administrative Agent shall not have any duties or responsibilities, except those
expressly set forth herein, or any fiduciary relationship with any Lender, and
no implied covenants, functions, responsibilities, duties, obligations or
liabilities shall be read into this Agreement or any other Loan Document or
otherwise exist against the Administrative Agent.
9.2. Delegation of Duties. The Administrative Agent may
execute any of its duties under this Agreement and the other Loan Documents by
or through agents or attorneys-in-fact and shall be entitled to advice of
counsel concerning all matters pertaining to such duties. The Administrative
Agent shall not be responsible for the negligence or misconduct of any agents or
attorneys in-fact selected by it with reasonable care.
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9.3. Exculpatory Provisions. Neither any Agent nor any of
their respective officers, directors, employees, agents, attorneys-in-fact or
affiliates shall be (i) liable for any action lawfully taken or omitted to be
taken by it or such Person under or in connection with this Agreement or any
other Loan Document (except to the extent that any of the foregoing are found by
a final and nonappealable decision of a court of competent jurisdiction to have
resulted from its or such Person's own gross negligence or willful misconduct)
or (ii) responsible in any manner to any of the Lenders for any recitals,
statements, representations or warranties made by any Loan Party or any officer
thereof contained in this Agreement or any other Loan Document or in any
certificate, report, statement or other document referred to or provided for in,
or received by the Agents under or in connection with, this Agreement or any
other Loan Document or for the value, validity, effectiveness, genuineness,
enforceability or sufficiency of this Agreement or any other Loan Document or
for any failure of any Loan Party a party thereto to perform its obligations
hereunder or thereunder. The Agents shall not be under any obligation to any
Lender to ascertain or to inquire as to the observance or performance of any of
the agreements contained in, or conditions of, this Agreement or any other Loan
Document, or to inspect the properties, books or records of any Loan Party.
9.4. Reliance by Administrative Agent. The Administrative
Agent shall be entitled to rely, and shall be fully protected in relying, upon
any instrument, writing, resolution, notice, consent, 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.
9.5. Notice of Default. The Administrative Agent shall not be
deemed to have knowledge or notice of the occurrence of any Default or Event of
Default 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
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may (but shall not be obligated to) take such action, or refrain from taking
such action, with respect to such Default or Event of Default as it shall deem
advisable in the best interests of the Lenders.
9.6. Non-Reliance on Agents and Other Lenders. Each Lender
expressly acknowledges that neither the Agents nor any of their respective
officers, directors, employees, agents, attorneys-in-fact or affiliates have
made any representations or warranties to it and that no act by any Agent
hereafter taken, including any review of the affairs of a Loan Party or any
affiliate of a Loan Party, shall be deemed to constitute any representation or
warranty by any Agent to any Lender. Each Lender represents to the Agents that
it has, independently and without reliance upon any Agent or any other Lender,
and based on such documents and information as it has deemed appropriate, made
its own appraisal of and investigation into the business, operations, property,
financial and other condition and creditworthiness of the Loan Parties and their
affiliates and made its own decision to make its Loans hereunder and enter into
this Agreement. Each Lender also represents that it will, independently and
without reliance upon any Agent or any other Lender, and based on such documents
and information as it shall deem appropriate at the time, continue to make its
own credit analysis, appraisals and decisions in taking or not taking action
under this Agreement and the other Loan Documents, and to make such
investigation as it deems necessary to inform itself as to the business,
operations, property, financial and other condition and creditworthiness of the
Loan Parties and their affiliates. Except for notices, reports and other
documents expressly required to be furnished to the Lenders by the
Administrative Agent hereunder, the Administrative Agent shall not have any duty
or responsibility to provide any Lender with any credit or other information
concerning the business, operations, property, condition (financial or
otherwise), prospects or creditworthiness of any Loan Party or any affiliate of
a Loan Party that may come into the possession of the Administrative Agent or
any of its officers, directors, employees, agents, attorneys-in-fact or
affiliates.
9.7. 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 Commitments shall have
terminated and the Loans shall have been paid in full, ratably in accordance
with such Aggregate Exposure Percentages immediately prior to such date), from
and against any and all liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements of any kind
whatsoever that may at any time (whether before or after the payment of the
Loans) be imposed on, incurred by or asserted against such Agent in any way
relating to or arising out of, the Commitments, this Agreement, any of the other
Loan Documents or any documents contemplated by or referred to herein or therein
or the transactions contemplated hereby or thereby or any action taken or
omitted by such Agent under or in connection with any of the foregoing; provided
that no Lender shall be liable for the payment of any portion of such
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements that are found by a final and nonappealable
decision of a court of competent jurisdiction to have resulted from such Agent's
gross negligence or willful misconduct. The
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agreements in this Section shall survive the payment of the Loans and all other
amounts payable hereunder.
9.8. Agent in Its Individual Capacity. Each Agent and its
affiliates may make loans to, accept deposits from and generally engage in any
kind of business with any Loan Party as though such Agent were not an Agent.
With respect to its Loans made or renewed by it and with respect to any Letter
of Credit issued or participated in by it, each Agent shall have the same rights
and powers under this Agreement and the other Loan Documents as any Lender and
may exercise the same as though it were not an Agent, and the terms "Lender" and
"Lenders" shall include each Agent in its individual capacity.
9.9. Successor Administrative Agent. The Administrative Agent
may resign as Administrative Agent upon 30 days' notice to the Lenders and the
Borrower. If the Administrative Agent shall resign as Administrative Agent under
this Agreement and the other Loan Documents, then the Required Lenders shall
appoint from among the Lenders a successor agent for the Lenders, which
successor agent shall (unless an Event of Default under Section 8(a) or Section
8(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 such successor agent effective upon such
appointment and approval, and the former Administrative Agent's rights, powers
and duties as Administrative Agent shall be terminated, without any other or
further act or deed on the part of such former Administrative Agent or any of
the parties to this Agreement or any holders of the Loans. If no successor agent
has accepted appointment as Administrative Agent by the date that is 30 days
following a retiring Administrative Agent's notice of resignation, the retiring
Administrative Agent's resignation shall nevertheless thereupon become effective
and the Lenders shall assume and perform all of the duties of the Administrative
Agent hereunder until such time, if any, as the Required Lenders appoint a
successor agent as provided for above. After any retiring Administrative Agent's
resignation as Administrative Agent, the provisions of this Section 9 shall
inure to its benefit as to any actions taken or omitted to be taken by it while
it was Administrative Agent under this Agreement and the other Loan Documents.
9.10. Documentation Agent and Co-Syndication Agents. Neither
the Documentation Agent nor the Co-Syndication Agents shall have any duties or
responsibilities hereunder in its capacity as such.
SECTION 10. MISCELLANEOUS
10.1. Amendments and Waivers. Neither this Agreement, any
other Loan Document, nor any terms hereof or thereof may be amended,
supplemented or modified except in accordance with the provisions of this
Section 10.1. The Required Lenders and each Loan Party party to the relevant
Loan Document may, or, with the written consent of the Required Lenders, the
Administrative Agent and each Loan Party party to the relevant Loan Document
may, from time to time, (a) enter into written amendments, supplements or
modifications hereto and to the other Loan Documents for the purpose of adding
any provisions to this Agreement or
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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 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(c), extend the
date for any scheduled amortization payment in respect of any Term Loan, 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
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 2.15(a), (b) or (c) without the written consent
of each Lender adversely affected thereby; (v) reduce the percentage specified
in the definition of Majority Facility Lenders with respect to any Facility
without the written consent of all Lenders under such Facility; (vi) amend,
modify or waive any provision of Section 9 without the written consent of the
Administrative Agent; (vii) amend, modify or waive any provision of Section 2.4
or 2.5 without the written consent of the Swingline Lender; or (viii) 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.
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 Term Loans and
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 and the Majority
Facility Lenders.
<PAGE> 85
80
10.2. Notices. All notices, requests and demands to or upon
the respective parties hereto to be effective shall be in writing (including by
telecopy), 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
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
<PAGE> 86
81
provided that any notice, request or demand to or upon the Administrative Agent
or the Lenders shall not be effective until received.
10.3. 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.
10.4. Survival of Representations and Warranties. All
representations and warranties made hereunder, in the other Loan Documents and
in any document, certificate or statement delivered pursuant hereto or in
connection herewith shall survive the execution and delivery of this Agreement
and the making of the Loans and other extensions of credit hereunder.
10.5. Payment of Expenses and Taxes. Each of TWTC and the
Borrower agrees (a) to pay or reimburse the Administrative Agent and the
Arrangers for all their 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
Restatement Effective Date (in the case of amounts to be paid on the Restatement
Effective 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 and the Arrangers, (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, the
Administrative Agent and the Arrangers 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
<PAGE> 87
82
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 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.
10.6. Successors and Assigns; Participations and Assignments.
(a) 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.
(b) 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
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
<PAGE> 88
83
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 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 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.
(c) 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, unless otherwise agreed by the Borrower and the Administrative
Agent, no such assignment to an Assignee (other than any Lender or any affiliate
of any Lender or any Approved Fund) shall be in an aggregate principal amount of
less than $5,000,000 (or, in the case of the Tranche B Term Facility,
$1,000,000), in each case except in the case of an assignment of all of a
Lender's interests under this Agreement. 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 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) except with respect to its obligations under
Section 10.15. 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(a) or 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
<PAGE> 89
84
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).
(d) 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 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.
(e) 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.
(f) 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 any pledge or
assignment by a Lender of any Loan or Note to any Federal Reserve Bank in
accordance with applicable law.
(g) 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.
(h) 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.
<PAGE> 90
85
10.7. Adjustments; Set-off. (a) Except to the extent that this
Agreement expressly provides for payments to be allocated to a particular Lender
or to the Lenders under a particular Facility, if any Lender (a "Benefitted
Lender") shall receive any payment of all or part of the 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.
(b) 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.
10.8. Counterparts. This Agreement may be executed by one or
more of the parties to this Agreement on any number of separate counterparts,
and all of said counterparts taken together shall be deemed to constitute one
and the same instrument. Delivery of an executed signature page of this
Agreement by facsimile transmission shall be effective as delivery of a manually
executed counterpart hereof. A set of the copies of this Agreement signed by all
the parties shall be lodged with the Borrower and the Administrative Agent.
10.9. Severability. Any provision of this Agreement that is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
10.10. Integration. This Agreement and the other Loan
Documents represent the 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,
<PAGE> 91
86
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.
10.11. GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES UNDER THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
10.12. Submission To Jurisdiction; Waivers. Each of 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;
(b) consents that any such action or proceeding may be brought
in such courts and waives any objection that it may now or hereafter
have to the venue of any such action or proceeding in any such court or
that such action or proceeding was brought in an inconvenient court and
agrees not to plead or claim the same;
(c) agrees that service of process in any such action or
proceeding may be effected by mailing a copy thereof by registered or
certified mail (or any substantially similar form of mail), postage
prepaid, to 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;
(d) agrees that nothing herein shall affect the right to
effect service of process in any other manner permitted by law or shall
limit the right to sue in any other jurisdiction; and
(e) waives, to the maximum extent not prohibited by law, any
right it may have to claim or recover in any legal action or proceeding
referred to in this Section any special, exemplary, punitive or
consequential damages.
10.13. 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;
(b) 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> 92
87
(c) no joint venture is created hereby or by the other Loan
Documents or otherwise exists by virtue of the transactions
contemplated hereby among the Lenders or among TWTC, the Borrower and
the Lenders.
10.14. 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 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.
10.15. Confidentiality. Each of the Administrative Agent and
each Lender agrees to keep confidential all non-public information (including
oral 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 (provided that such Affiliate or
Approved Fund expressly agrees to comply with the provisions of this Section),
(b) to any actual or prospective Transferee or Hedge Agreement counterparty that
expressly 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 or
otherwise disclosed to such Person on a non-confidential basis, (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 expressly 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
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88
(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.
10.16. 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> 94
Annex A
PRICING GRID FOR DELAYED-DRAW TERM LOANS, REVOLVING LOANS,
SWINGLINE LOANS AND COMMITMENT FEES
<TABLE>
<CAPTION>
APPLICABLE MARGIN
CONSOLIDATED FOR APPLICABLE MARGIN
LEVERAGE RATIO EURODOLLAR LOANS FOR ABR LOANS COMMITMENT FEE RATE
--------------------------- ----------------------- -------------------------- --------------------------------------
<S> <C> <C> <C>
Greater than or equal to 2.75% 1.75% 1.00% if 33 1/3% or less of the
10.00 to 1.0 relevant Facility Commitments are
utilized;
0.75% if 66 2/3% or less but
greater than 33 1/3% of the
relevant Facility Commitments are
utilized;
0.50% if greater than 66 2/3% of
the relevant Facility Commitments
are utilized
Greater than or equal
to 9.00 to 1.0 but 2.50% 1.50% same as above
less than 10.00 to 1.0
Greater than or equal
to 8.00 to 1.0 but 2.25% 1.25% same as above
less than 9.00 to 1.0
Greater than or equal
to 7.00 to 1.0 but 2.00% 1.00% same as above
less than 8.00 to 1.0
Greater than or equal
to 6.00 to 1.0 but 1.75% 0.75% same as above
less than 7.00 to 1.0
Greater than or equal
to 5.00 to 1.0 but 1.50% 0.50% same as above
less than 6.00 to 1.0
Greater than or equal
to 4.00 to 1.0 but 1.25% 0.25% same as above
less than 5.00 or 1.0
Less than 4.00 to 1.0 1.00% 0.0% same as above
</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
<PAGE> 95
2
date on which financial statements are delivered to the Lenders pursuant to
Section 6.1, 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 Revolving Facility.
<PAGE> 96
EXHIBIT B to the
AMENDED AND RESTATED CREDIT AGREEMENT
FORM OF
COMPLIANCE CERTIFICATE
This Compliance Certificate is delivered pursuant to Section
6.2(b) of the Amended and Restated Credit Agreement, dated as of December __,
2000 (as amended, supplemented or otherwise modified from time to time (the
"Amended and Restated Credit Agreement"), among TIME WARNER TELECOM INC.
("TWTC"), TIME WARNER TELECOM HOLDINGS INC. (the "Borrower"), the Lenders party
thereto, the Documentation Agent and the Co-Syndication Agents named therein and
THE CHASE MANHATTAN BANK, as administrative agent (in such capacity, the
"Administrative Agent"). Unless otherwise defined herein, terms defined in the
Amended and Restated Credit Agreement and used herein shall have the meanings
given to them in the Amended and Restated Credit Agreement.
1. I am the duly elected, qualified and acting [Chief
Financial Officer or Treasurer] of the Borrower.
2. I have reviewed and am familiar with the contents of this
Certificate.
3. I have reviewed the terms of the Amended and Restated
Credit Agreement and the Loan Documents and have made or caused to be made under
my supervision, a review in reasonable detail of the transactions and condition
of TWTC during the accounting period covered by the financial statements
attached hereto as Attachment 1 (the "Financial Statements"). Such review did
not disclose the existence during or at the end of the accounting period covered
by the Financial Statements, and I have no knowledge of the existence, as of the
date of this Certificate, of any condition or event which constitutes a Default
or Event of Default[, except as set forth below].
4. Attached hereto as Attachment 2 are the computations
showing compliance with the covenants set forth in Section 7.1, 7.2, 7.3, 7.5,
7.6, 7.7 and 7.8 of the Amended and Restated Credit Agreement.
5. Attached hereto as Attachment 3 is a report as to the
status of availability of the exception to the indebtedness covenant contained
in the Indenture permitting $300,000,000 of indebtedness (including a statement
as to the amount of the Loans outstanding under the Amended and Restated Credit
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).
IN WITNESS WHEREOF, I have executed this Certificate this
_____ day of ____, 200__.
-------------------------------
Name:
Title:
<PAGE> 97
Attachment 1
to Compliance Certificate
[Attach Financial Statements]
<PAGE> 98
Attachment 2
to Compliance Certificate
The information described herein is as of ______, ____, and pertains to
the period from _________, ____ to ________________ __, ____.
[Set forth Covenant Calculations]
<PAGE> 99
Attachment 3
to Compliance Certificate
[Set forth report re: availability under the Indenture]
<PAGE> 100
EXHIBIT C to the
AMENDED AND RESTATED CREDIT AGREEMENT
FORM OF
CLOSING CERTIFICATE
Pursuant to Section 5.1(d) of the Amended and Restated Credit
Agreement, dated as of December __, 2000 (the "Amended and Restated Credit
Agreement"; terms defined therein being used herein as therein defined), among
TIME WARNER TELECOM INC. ("TWTC"), TIME WARNER TELECOM HOLDINGS INC. (the
"Borrower"), the Lenders party thereto, the Documentation Agent and the
Co-Syndication Agents named therein and THE CHASE MANHATTAN BANK, as
administrative agent (in such capacity, the "Administrative Agent"), the
undersigned [INSERT TITLE OF OFFICER] of [____________, the [managing] general
partner of][____________, the sole member of] [INSERT NAME OF LOAN PARTY] (the
"Certifying Loan Party") hereby certifies as follows:
1. The representations and warranties of the Certifying Loan Party set
forth in each of the Loan Documents to which it is a party or which are
contained in any certificate furnished by or on behalf of the Certifying Loan
Party pursuant to any of the Loan Documents to which it is a party are true and
correct in all material respects on and as of the date hereof with the same
effect as if made on the date hereof, except for representations and warranties
expressly stated to relate to a specific earlier date, in which case such
representations and warranties were true and correct in all material respects as
of such earlier date.
2. ___________________ is the duly elected and qualified Corporate
Secretary of the Certifying Loan Party and the signature set forth for such
officer below is such officer's true and genuine signature.
3. No Default or Event of Default has occurred and is continuing as of
the date hereof or after giving effect to the Loans to be made on the date
hereof and the use of proceeds thereof. [Borrower only]
4. The conditions precedent set forth in Section 5.1 of the Amended and
Restated Credit Agreement were satisfied as of the Restatement Effective Date.
[Borrower only]
The undersigned Secretary [of ____________, the [managing] general
partner][of ___________, the sole member] of the Certifying Loan Party certifies
as follows:
5. There are no liquidation or dissolution proceedings pending or to my
knowledge threatened against the Certifying Loan Party, nor has any other event
occurred adversely affecting or threatening the continued corporate existence of
the Certifying Loan Party.
6. The Certifying Loan Party is a duly organized
[corporation][partnership][limited liability company], validly existing and in
good standing under the laws of the jurisdiction of its organization.
<PAGE> 101
7. Attached hereto as Annex 1 is a true and complete copy of
resolutions duly adopted by the [Board of Directors] of the [managing general
partner of the][member of the] Certifying Loan Party on _________________; such
resolutions have not in any way been amended, modified, revoked or rescinded,
have been in full force and effect since their adoption to and including the
date hereof and are now in full force and effect and are the only corporate
proceedings of the Certifying Loan Party now in force relating to or affecting
the matters referred to therein.
8. Attached hereto as Annex 2 is a true and complete copy of the
[By-Laws][Partnership Agreement][Operating Agreement] of the Certifying Loan
Party as in effect on the date hereof.
9. Attached hereto as Annex 3 is a true and complete copy of the
[Certificate of Incorporation][Certificate of Partnership][Certificate of
Formation] of the Certifying Loan Party as in effect on the date hereof.
10. The following persons are now duly elected and qualified officers
of the [[managing] general partner of the][member of the] Certifying Loan Party
holding the offices indicated next to their respective names below, and the
signatures appearing opposite their respective names below are the true and
genuine signatures of such officers, and each of such officers is duly
authorized to execute and deliver on behalf of the Certifying Loan Party each of
the Loan Documents to which it is a party and any certificate or other document
to be delivered by the Certifying Loan Party pursuant to the Loan Documents to
which it is a party:
<TABLE>
<CAPTION>
Name Office Signature
---- ------ ---------
<S> <C> <C>
</TABLE>
IN WITNESS WHEREOF, the undersigned have hereunto set our names as
of the date set forth below.
------------------------------- ------------------------------------
Name: Name:
Title: Title: Secretary
Date: , 200
------- -- --
<PAGE> 102
ANNEX 1
[Resolutions]
<PAGE> 103
ANNEX 2
[By-Laws/Partnership Agreement/Operating Agreement]
<PAGE> 104
ANNEX 3
[Certificate of Incorporation/Certificate of
Partnership/Certificate of Formation]
<PAGE> 105
EXHIBIT D-1 to the
AMENDED AND RESTATED CREDIT AGREEMENT
FORM OF NEW LENDER SUPPLEMENT
SUPPLEMENT, dated _________________, to the Amended and
Restated Credit Agreement dated as of December __, 2000 (as amended,
supplemented or otherwise modified from time to time, the "Amended and Restated
Credit Agreement"; terms defined therein being used herein are therein defined
unless otherwise defined), among TIME WARNER TELECOM INC. ("TWTC"), TIME WARNER
TELECOM HOLDINGS INC. (the "Borrower"), the lenders parties thereto (the
"Lenders"), the Co-Syndication Agents and the Documentation Agent named therein
and THE CHASE MANHATTAN BANK, as Administrative Agent.
WITNESSETH:
WHEREAS, the Amended and Restated Credit Agreement provides
in Section 2.1(e) thereof that any bank, financial institution or other entity
may become a party to the Amended and Restated Credit Agreement with the consent
of the Borrower and the Administrative Agent (which consent, in the case of the
Administrative Agent, shall not be unreasonably withheld) by executing and
delivering to the Borrower and the Administrative Agent a supplement to the
Amended and Restated Credit Agreement in substantially the form of this
Supplement; and
WHEREAS, the undersigned now desires to become a party to the
Amended and Restated Credit Agreement;
NOW, THEREFORE, the undersigned hereby agrees as follows:
1. The undersigned agrees to be bound by the provisions of the
Amended and Restated Credit Agreement, and agrees that it shall, on the
date this Supplement is accepted by the Borrower and the Administrative
Agent, become a Lender for all purposes of the Amended and Restated
Credit Agreement to the same extent as if originally a party thereto,
with [a Revolving Commitment of $_____________] [an Incremental
Commitment of $____________][Incremental Loans of $_____________].
2. The undersigned (a) represents and warrants that it is
legally authorized to enter into this Supplement; (b) confirms that it
has received a copy of the Amended and Restated Credit Agreement,
together with copies of the financial statements referred to in Section
4.1 thereof and such other documents and information as it has deemed
appropriate to make its own credit analysis and decision to enter into
this Supplement; (c) agrees that it has made and will, independently
and without reliance upon any Agents 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 decisions in taking or not taking
action under the Amended and Restated Credit Agreement or any
instrument or document furnished pursuant hereto or thereto; (d)
appoints and authorizes the Administrative Agent to take such action as
agent on its behalf and to exercise such powers and discretion under
the Amended and Restated Credit Agreement or any instrument or document
furnished pursuant hereto or thereto as are delegated to the
Administrative Agent by the terms thereof, together with such powers as
are incidental thereto; and (e) agrees that it will be bound by the
provisions of the Amended and Restated Credit
<PAGE> 106
Agreement and will perform in accordance with its terms all the
obligations which by the terms of the Amended and Restated Credit
Agreement are required to be performed by it as a Lender including,
without limitation, if it is organized under the laws of a jurisdiction
outside the United States, its obligation pursuant to Section 2.17(d)
of the Amended and Restated Credit Agreement.
3. The undersigned's address for notices for the purposes of
the Amended and Restated Credit Agreement is as follows:
<PAGE> 107
IN WITNESS WHEREOF, the undersigned has caused this Supplement
to be executed and delivered by a duly authorized officer on the date first
above written.
[INSERT NAME OF LENDER]
By :
-----------------------
Title:
Accepted this _____ day of
_______________, ___.
TIME WARNER TELECOM HOLDINGS INC.
By:
-------------------------------
Title:
Accepted this ____ day of
_______________, ___.
THE CHASE MANHATTAN BANK, as Administrative Agent
By:
-------------------------------
Title:
<PAGE> 108
EXHIBIT D-2 to the
AMENDED AND RESTATED CREDIT AGREEMENT
FORM OF INCREASED FACILITY ACTIVATION NOTICE
To: THE CHASE MANHATTAN BANK,
as Administrative Agent under the Amended and Restated Credit Agreement
referred to below
Reference is hereby made to the Amended and Restated Credit
Agreement, dated as of December __, 2000 (as amended, supplemented or otherwise
modified from time to time, the "Amended and Restated Credit Agreement"; terms
defined therein being used herein as therein defined unless otherwise defined),
among TIME WARNER TELECOM INC. ("TWTC"), TIME WARNER TELECOM HOLDINGS INC. (the
"Borrower"), the lenders parties thereto (the "Lenders"), the Co-Syndication
Agents and the Documentation Agent named therein and THE CHASE MANHATTAN BANK,
as Administrative Agent.
This notice is an Increased Facility Activation Notice
referred to in the Amended and Restated Credit Agreement, and the Borrower and
each of the Lenders party hereto hereby notify you that:
1. Each Lender party hereto agrees to make obtain or
increase the amount of its Revolving Commitment as set forth opposite such
Lender's name on the signature pages hereof under the caption "Increased
Facility Amount".
2. The Increased Facility Closing Date is ______.
TIME WARNER TELECOM HOLDINGS INC.
By:
----------------------------------
Name:
Title:
Increased Facility Amount [NAME OF LENDER]
$
By:
----------------------------------
Name:
Title:
<PAGE> 109
CONSENTED TO:
THE CHASE MANHATTAN BANK,
as Administrative Agent
By:
-------------------------------
Name:
Title:
<PAGE> 110
EXHIBIT E to the
AMENDED AND RESTATED CREDIT AGREEMENT
FORM OF
ASSIGNMENT AND ACCEPTANCE
Reference is made to the Amended and Restated Credit
Agreement, dated as of December __, 2000 (as amended, supplemented or otherwise
modified from time to time, the "Amended and Restated Credit Agreement"), among
TIME WARNER TELECOM INC. ("TWTC"), TIME WARNER TELECOM HOLDINGS INC. (the
"Borrower"), the Lenders party thereto, the Documentation Agent and the
Co-Syndication Agents named therein and THE CHASE MANHATTAN BANK, as
administrative agent for the Lenders (in such capacity, the "Administrative
Agent"). Unless otherwise defined herein, terms defined in the Amended and
Restated Credit Agreement and used herein shall have the meanings given to them
in the Amended and Restated Credit Agreement.
The Assignor identified on Schedule l hereto (the "Assignor")
and the Assignee identified on Schedule l hereto (the "Assignee") agree as
follows:
1. The Assignor hereby irrevocably sells and assigns to the Assignee
without recourse to the Assignor, and the Assignee hereby irrevocably purchases
and assumes from the Assignor without recourse to the Assignor, as of the
Effective Date (as defined below), the interest described in Schedule 1 hereto
(the "Assigned Interest") in and to the Assignor's rights and obligations under
the Amended and Restated Credit Agreement with respect to those credit
facilities contained in the Amended and Restated Credit Agreement as are set
forth on Schedule 1 hereto (individually, an "Assigned Facility"; collectively,
the "Assigned Facilities"), in a principal amount for each Assigned Facility as
set forth on Schedule 1 hereto.
2. The Assignor (a) makes no representation or warranty and assumes no
responsibility with respect to any statements, warranties or representations
made in or in connection with the Amended and Restated Credit Agreement or with
respect to the execution, legality, validity, enforceability, genuineness,
sufficiency or value of the Amended and Restated Credit Agreement, any other
Loan Document or any other instrument or document furnished pursuant thereto,
other than that the Assignor has not created any adverse claim upon the interest
being assigned by it hereunder and that such interest is free and clear of any
such adverse claim and (b) makes no representation or warranty and assumes no
responsibility with respect to the financial condition of the Borrower, any of
its Affiliates or any other obligor or the performance or observance by the
Borrower, any of its Affiliates or any other obligor of any of their respective
obligations under the Amended and Restated Credit Agreement or any other Loan
Document or any other instrument or document furnished pursuant hereto or
thereto.
3. The Assignee (a) represents and warrants that it is legally
authorized to enter into this Assignment and Acceptance; (b) confirms that it
has received a copy of the Amended and Restated Credit Agreement, together with
copies of the financial statements delivered pursuant to Section 4.1 thereof and
such other documents and information as it has deemed appropriate to make its
own credit analysis and decision to enter into this Assignment and Acceptance;
(c) agrees that it will, independently and without reliance upon the Assignor,
the Agents or any
<PAGE> 111
5
Lender and based on such documents and information as it shall deem appropriate
at the time, continue to make its own credit decisions in taking or not taking
action under the Amended and Restated Credit Agreement, the other Loan Documents
or any other instrument or document furnished pursuant hereto or thereto; (d)
appoints and authorizes the Administrative Agent to take such action as agent on
its behalf and to exercise such powers and discretion under the Amended and
Restated Credit Agreement, the other Loan Documents or any other instrument or
document furnished pursuant hereto or thereto as are delegated to the
Administrative Agent by the terms thereof, together with such powers as are
incidental thereto; and (e) agrees that it will be bound by the provisions of
the Amended and Restated Credit Agreement, including, without limitation, the
confidentiality provisions under subsection 10.15 thereof, and will perform in
accordance with its terms all the obligations which by the terms of the Amended
and Restated Credit Agreement are required to be performed by it as a Lender
including, if it is organized under the laws of a jurisdiction outside the
United States, its obligation pursuant to Section 2.17(d) of the Amended and
Restated Credit Agreement.
4. The effective date of this Assignment and Acceptance shall be the
Effective Date of Assignment described in Schedule 1 hereto (the "Effective
Date"). Following the execution of this Assignment and Acceptance, it will be
delivered to the Administrative Agent for acceptance by it and recording by the
Administrative Agent pursuant to the Amended and Restated Credit Agreement,
effective as of the Effective Date (which shall not, unless otherwise agreed to
by the Administrative Agent, be earlier than five Business Days after the date
of such acceptance and recording by the Administrative Agent).
5. Upon such acceptance and recording, from and after the Effective
Date, the Administrative Agent shall make all payments in respect of the
Assigned Interest (including payments of principal, interest, fees and other
amounts) to the Assignor for amounts which have accrued to the Effective Date
and to the Assignee for amounts which have accrued subsequent to the Effective
Date.
6. From and after the Effective Date, (a) the Assignee shall be a party
to the Amended and Restated Credit Agreement and, to the extent provided in this
Assignment and Acceptance, have the rights and obligations of a Lender
thereunder and under the other Loan Documents and shall be bound by the
provisions thereof and (b) the Assignor shall, to the extent provided in this
Assignment and Acceptance, relinquish its rights and be released from its
obligations under the Amended and Restated Credit Agreement.
7. This Assignment and Acceptance shall be governed by and construed in
accordance with the laws of the State of New York.
IN WITNESS WHEREOF, the parties hereto have caused this Assignment
and Acceptance to be executed as of the date first above written by their
respective duly authorized officers on Schedule 1 hereto.
<PAGE> 112
Schedule 1
to Assignment and Acceptance with respect to
the Amended and Restated Credit Agreement, dated as of December __, 2000,
among TIME WARNER TELECOM INC. (the "TWTC"),
TIME WARNER TELECOM HOLDINGS INC. (the "Borrower"),
the Lenders party thereto, the Documentation Agent and the
Co-Syndication Agents named
therein and THE CHASE MANHATTAN BANK, as Administrative Agent
Name of Assignor:
-----------------------
Name of Assignee:
-----------------------
Effective Date of Assignment:
-------------------------
<TABLE>
<CAPTION>
Credit Principal
Facility Assigned Amount Assigned Commitment Percentage Assigned
----------------- --------------- ------------------------------
<S> <C> <C>
Revolving Commitment $ . %
-------- -- -------
[Incremental Commitment]
[Incremental Loans]
[Name of Assignee] [Name of Assignor]
By: By:
---------------------- ------------------------
Title: Title:
</TABLE>
<PAGE> 113
Accepted for Recordation in the Register: Required Consents (if any):
THE CHASE MANHATTAN BANK, as TIME WARNER TELECOM HOLDINGS
Administrative Agent INC.
By: By:
-------------------------------------- --------------------------
Title: Title:
THE CHASE MANHATTAN BANK, as
Administrative Agent
By:
--------------------------
Title:
<PAGE> 114
EXHIBIT F to the
AMENDED AND RESTATED CREDIT AGREEMENT
FORM OF
PREPAYMENT OPTION NOTICE
Attention of [ ]
Telecopy No. [ ]
[Date]
Ladies and Gentlemen:
The undersigned, ______________________________, as
administrative agent (in such capacity, the "Administrative Agent"), refers to
the Amended and Restated Credit Agreement, dated as of December __, 2000 (as
amended, supplemented or otherwise modified from time to time (the "Amended and
Restated Credit Agreement"), among TIME WARNER TELECOM INC. ("TWTC"), TIME
WARNER TELECOM HOLDINGS INC. (the "Borrower"), the Lenders party thereto, the
Documentation Agent and the Co-Syndication Agents named therein and THE CHASE
MANHATTAN BANK, as administrative agent. Unless otherwise defined herein, terms
defined in the Amended and Restated Credit Agreement and used herein shall have
the meanings given to them in the Amended and Restated Credit Agreement. The
Administrative Agent hereby gives notice of an offer of prepayment made by the
Borrower pursuant to [Section 2.8][Section 2.9] of the Amended and Restated
Credit Agreement of the Tranche B Prepayment Amount. Amounts applied to prepay
the Tranche B Term Loans shall be applied in accordance with the provisions of
the Amended and Restated Credit Agreement. The portion of the prepayment amount
to be allocated to the Tranche B Term Loan held by you and the date on which
such prepayment will be made to you (should you elect to receive such
prepayment) are set forth below:
(A) Total Tranche B Prepayment Amount
------------
(B) Portion of Tranche B Prepayment
Amount to be received by you
------------
(C) Prepayment Date
------------
IF YOU DO NOT WISH TO RECEIVE ALL OF THE TRANCHE B PREPAYMENT
AMOUNT TO BE ALLOCATED TO YOU ON THE PREPAYMENT DATE INDICATED IN PARAGRAPH (C)
ABOVE, please sign this notice in the space provided below and indicate the
percentage of the Tranche B Prepayment Amount otherwise payable which you do not
wish to receive. Please return this notice as so completed via telecopy to the
attention of [___________________] at The Chase Manhattan Bank, no later than
10:00 a.m., New York City time, on the Prepayment Date, at Telecopy No.
[________________]. IF YOU DO NOT RETURN THIS NOTICE, YOU WILL RECEIVE 100% OF
THE TRANCHE B PREPAYMENT AMOUNT ALLOCATED TO YOU ON THE PREPAYMENT DATE.
<PAGE> 115
THE CHASE MANHATTAN BANK
as Administrative Agent
By:
----------------------------------
Title:
,
---------------------------------
(Name of Lender)
By:
-------------------------------
Title:
Percentage of Tranche B
Prepayment Amount Declined: %
-------
<PAGE> 116
EXHIBIT G to the
AMENDED AND RESTATED CREDIT AGREEMENT
FORM OF EXEMPTION CERTIFICATE
Reference is made to the Amended and Restated Credit
Agreement, dated as of December __, 2000 (as amended, supplemented or otherwise
modified from time to time, the "Amended and Restated Credit Agreement"), among
TIME WARNER TELECOM INC. ("TWTC"), TIME WARNER TELECOM HOLDINGS INC. (the
"Borrower"), the Lenders party thereto, the Documentation Agent and the
Co-Syndication Agents named therein and THE CHASE MANHATTAN BANK, as
administrative agent (in such capacity, the "Administrative Agent"). Unless
otherwise defined herein, terms defined in the Amended and Restated Credit
Agreement and used herein shall have the meanings given to them in the Amended
and Restated Credit Agreement. ______________________ (the "Non-U.S. Lender") is
providing this certificate pursuant to Section 2.17(d) of the Amended and
Restated Credit Agreement. The Non-U.S. Lender hereby represents and warrants
that:
1. The Non-U.S. Lender is the sole record and beneficial owner
of the Loans in respect of which it is providing this certificate.
2. The Non-U.S. Lender is not a "bank" for purposes of Section
881(c)(3)(A) of the Internal Revenue Code of 1986, as amended (the "Code"). In
this regard, the Non-U.S. Lender further represents and warrants that:
(a) the Non-U.S. Lender is not subject to regulatory or other
legal requirements as a bank in any jurisdiction; and
(b) the Non-U.S. Lender has not been treated as a bank for
purposes of any tax, securities law or other filing or submission made
to any Governmental Authority, any application made to a rating agency
or qualification for any exemption from tax, securities law or other
legal requirements.
3. The Non-U.S. Lender is not a 10-percent shareholder of the
Borrower within the meaning of Section 881(c)(3)(B) of the Code.
4. The Non-U.S. Lender is not a controlled foreign corporation
receiving interest from a related person within the meaning of Section
881(c)(3)(C) of the Code.
IN WITNESS WHEREOF, the undersigned has duly executed this
certificate.
[NAME OF NON-U.S. LENDER]
By:
------------------------
Name:
Title:
Date:
----------------------
