SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (Date of earliest event reported):
July 6, 1995
TIME WARNER INC.
(Exact name of registrant as specified in its charter)
Delaware 1-8637 13-1388520
(State or other jurisdiction (Commission (I.R.S. Employer
of incorporation) File Number) Identification No.)
75 Rockefeller Plaza, New York, NY 10019
(Address of principal executive offices) (zip code)
(212) 484-8000
(Registrant's telephone number, including area code)
Not Applicable
(Former name or former address, if changed since last report)
<PAGE>
Item 2. Acquisition or Disposition of Assets.
On July 6, 1995, Time Warner Inc. ("Time Warner")
closed the acquisition of KBLCOM Incorporated ("KBLCOM"),
formerly a subsidiary of Houston Industries Incorporated
("Houston Industries"). The closing was pursuant to certain
agreements entered into by Time Warner, Houston Industries
and KBLCOM, which were previously reported on the Form 8-K
of Time Warner dated January 26, 1995. At the closing, Time
Warner (i) issued 1,000,000 shares of its common stock and
11,000,000 shares of its Series D Preferred Stock to Houston
Industries and (ii) assumed or incurred approximately $1.2
billion of indebtedness. Funds for the acquisition were
obtained pursuant to a credit agreement among certain
affiliates of Time Warner, as borrowers, Chemical Bank, as
administrative agent, and the documentation and syndication
agents and lending institutions named in such agreement, a
copy of which is filed as an exhibit hereto. KBLCOM, which
has been renamed "TWI Cable Inc.", owns cable television
systems serving approximately 700,000 subscribers in San
Antonio and Laredo, Texas, the Minneapolis metropolitan
area, Portland, Oregon and Orange County, California. KBLCOM
also owns 50% of Paragon Communications ("Paragon"), with
the other 50% owned by Time Warner Entertainment Company,
L.P. Paragon serves approximately 972,000 cable subscribers
including systems in Tampa, Florida and northern Manhattan.
Item 7. Financial Statements and Exhibits.
(a) and (b) The financial statements of
KBLCOM and the pro forma financial information of
Time Warner required by this item were previously
filed as exhibits to the Form 8-K of Time Warner
dated May 30, 1995.
(c) Exhibits:
Exhibit 2(a): Agreement and Plan of
Merger dated as of January 26, 1995, among KBLCOM
Incorporated, Houston Industries Incorporated,
Time Warner Inc. and TW KBLCOM Acquisition Sub
(incorporated by reference to Exhibit 2(a) of the
Form 8-K of Time Warner dated January 26, 1995).
Exhibit 10(a): Credit Agreement among
Time Warner Entertainment Company, L.P., Time
Warner Entertainment-Advance/Newhouse Partnership
and TWI Cable Inc., as borrowers, Chemical Bank,
as administrative agent, Bank of America National
Trust and Savings Association, The Bank of New
York and Morgan Guaranty Trust Company of New
York, as documentation and syndication agents, and
the lending institutions named therein, dated as
of June 30, 1995.
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SIGNATURE
Pursuant to the requirements of the Securities
Exchange Act of 1934, the registrant has duly caused this
report to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of New York, State of
New York, on July 20, 1995.
TIME WARNER INC.,
By: /s/ Richard J. Bressler
-------------------------
Name: Richard J. Bressler
Title: Senior Vice President
and Chief Financial
Officer
<PAGE>
EXHIBIT INDEX
Exhibit No. Description of Exhibit Sequential
Page Number
2(a) Agreement and Plan of Merger dated
as of January 26, 1995, among
KBLCOM Incorporated, Houston
Industries Incorporated, Time
Warner Inc. and TW KBLCOM
Acquisition Sub (incorporated by
reference to Exhibit 2(a) of the
Form 8-K of Time Warner dated
January 26, 1995)
10(a) Credit Agreement among Time Warner
Entertainment Company, L.P., Time
Warner Entertainment-Advance/
Newhouse Partnership and TWI Cable
Inc., as borrowers, Chemical Bank,
as administrative agent, Bank of
America National Trust and Savings
Association, The Bank of New York
and Morgan Guaranty Trust Company
of New York, as documentation and
syndication agents, and the
lending institutions named
therein, dated as of June 30, 1995
Exhibit 2(a)
<PAGE>
Agreement and Plan of Merger dated as of
January 26, 1995, among KBLCOM Incorporated,
Houston Industries Incorporated, Time Warner Inc. and
TW KBLCOM Acquisition Sub (incorporated by
reference to Exhibit 2(a) of the Form 8-K of
Time Warner dated January 26, 1995)
Exhibit 10(a)
<PAGE>
$8,300,000,000
CREDIT AGREEMENT
among
TIME WARNER ENTERTAINMENT COMPANY, L.P.
TIME WARNER ENTERTAINMENT-ADVANCE/NEWHOUSE PARTNERSHIP
TWI CABLE INC.
As Borrowers
and
CHEMICAL BANK
As Administrative Agent
and
BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION
THE BANK OF NEW YORK
MORGAN GUARANTY TRUST COMPANY OF NEW YORK
As Documentation and Syndication Agents
and
THE LENDING INSTITUTIONS LISTED HEREIN
Dated as of June 30, 1995
<PAGE>
CREDIT AGREEMENT ("Agreement") dated as of
June 30, 1995 among TIME WARNER ENTERTAINMENT COMPANY,
L.P., a Delaware limited partnership ("TWE"), TIME WARNER
ENTERTAINMENT-ADVANCE/NEWHOUSE PARTNERSHIP, a New York
general partnership ("TWEAN"), TWI CABLE INC., a Delaware
corporation ("TWI Cable"), the lenders listed in Schedule
2.01 (each, a "Lender" and collectively, the "Lenders"),
CHEMICAL BANK, a New York banking corporation, as
administrative agent for the Lenders (in such capacity,
the "Administrative Agent"), and the Documentation and
Syndication Agents. Unless otherwise defined herein, all
capitalized terms used herein and defined in Article I are
used herein as so defined.
The Borrowers have requested the Lenders to extend credit in
order to enable the Borrowers to borrow on a revolving credit basis,
on and after the Closing Date and at any time and from time to time
prior to the Commitment Termination Date, an aggregate principal
amount not to exceed $8,300,000,000 at any time outstanding.
Proceeds of Loans may be used for general corporate
purposes, including, without limitation, capital expenditures,
distributions and (x) in the case of TWI Cable and TWEAN, to repay
indebtedness assumed in connection with the Acquisitions (including
the repayment or refinancing of indebtedness assumed in connection
with the Summit Acquisition, which was consummated in May 1995) and
pay related fees and expenses and (y) in the case of TWE and TWEAN, to
provide for the assumption of indebtedness in connection with the
Transfers, all as set forth herein.
TWE has further requested the Administrative Agent to make
Swingline Loans to it, after the Closing Date and at any time and from
time to time until the Business Day next preceding the Swingline
Maturity Date, in an aggregate principal amount not to exceed the
lesser of (x) the Swingline Loan Commitment and (y) the Total
Unutilized Commitment at any time outstanding.
The Lenders are willing to extend credit on the terms and
subject to the conditions herein set forth. With respect to TWE, this
Agreement will replace the Existing TWE Credit Agreement.
Accordingly, the parties hereto agree as follows:
<PAGE>
ARTICLE I
DEFINITIONS
SECTION 1.01. Defined Terms. As used in this Agreement, the
following terms shall have the meanings specified below:
"Acquired Cable Businesses" shall mean KBLCOM, Summit, CVI
and the Gerry Subs, collectively; and "Acquired Cable Business" shall
mean any of them.
"Acquired Indebtedness" shall mean (i) Indebtedness of an
entity, which entity is acquired by any Borrower or any of its
Subsidiaries after the Closing Date; provided, however, that such
Indebtedness shall be outstanding at the time of the acquisition of
such entity, shall not be created in contemplation of such acquisition
and shall not be, directly or indirectly, recourse (including by way
of setoff) to such Borrower or any of its Subsidiaries or any of their
respective assets other than to the entity and its Subsidiaries so
acquired and the assets of the entity and its Subsidiaries so acquired
or (ii) Indebtedness of any Borrower that is not, directly or
indirectly, recourse (including by way of setoff) to such Borrower and
its Subsidiaries or any of their respective assets other than to
specified assets acquired by such Borrower after the Closing Date,
which Indebtedness is outstanding at the time of the acquisition of
such assets and is not created in contemplation of such acquisition
and the holder of which waives, for the benefit of the other lenders
thereto, any claims against any other assets of such Borrower and its
Subsidiaries or against the general credit of such Borrower and its
Subsidiaries (which waiver shall, in the judgment of the
Administrative Agent after consultation with its counsel, constitute a
satisfactory waiver under Section 1111(b) of the Bankruptcy Code).
"Acquiring Borrower" shall mean TWI Cable or, if TWEAN shall
acquire the Gerry Subs in the Gerry Acquisition, TWEAN.
"Acquisition Documents" shall mean the CVI Acquisition
Documents, the Gerry Acquisition Documents, the KBLCOM Acquisition
Documents and the Summit Acquisition Documents, collectively.
"Acquisition Funding Date" shall mean the date of funding of
any Acquisition Loan.
<PAGE>
"Acquisition Loan" shall mean any Loan made in connection
with the CVI Acquisition, Gerry Acquisition or the KBLCOM Acquisition
or any Loan made to repay or refinance the Summit Assumed
Indebtedness.
"Acquisitions" shall mean the CVI Acquisition, the Gerry
Acquisition, the KBLCOM Acquisition and the Summit Acquisition; and
"Acquisition" shall mean any of them.
"additional amount" shall have the meaning provided in
Section 2.18(a).
"Adjusted Eurodollar Rate" shall mean, for any Interest Rate
Determination Date, the rate (rounded upward to the nearest 1/100 of
1%) obtained by dividing (i) the Eurodollar Rate for that date by (ii)
a percentage equal to 100% minus the stated maximum rate of all
reserves required to be maintained against "Eurocurrency liabilities"
as specified in Regulation D (or against any other category of
liabilities which includes deposits by reference to which the interest
rate on Eurodollar Loans is determined or any category of extensions
of credit or other assets which includes loans by a non-United States
office of any Lender to United States residents).
"Adjusted Financial Statements" shall mean, of any Person
for any period, (x) balance sheets of such Person and its Restricted
Subsidiaries (showing Unrestricted Subsidiaries as an equity
investment) as of the end of such period and (y) the related
statements of operations, stockholders' or partners' equity and cash
flows for such period and, if such period is not a fiscal year, for
the then elapsed portion of the fiscal year.
"Adjusted Floating CD Rate" shall mean, on any day, the sum
(rounded upward to the nearest 1/100th of 1%) of (1) the rate obtained
by dividing (x) the most recent weekly average dealer offering rate
for negotiable certificates of deposit with a three-month maturity in
the secondary market as published in the most recent Federal Reserve
System publication entitled "Select Interest Rates," published weekly
on Form H.15(519) as of the date hereof, or if such publication or a
substitute containing the foregoing rate information shall not be
published by the Federal Reserve System for any week, the weekly
average offering rate determined by the Administrative Agent on the
basis of quotations for such certificates received by it from three
certificate of deposit dealers in New York of recognized standing or,
if such quotations are
<PAGE>
unavailable, then on the basis of other sources reasonably selected by
the Administrative Agent, by (y) a percentage equal to 100% minus the
stated maximum rate of all reserve requirements as specified in
Regulation D applicable on such day to a three-month certificate of
deposit of a member bank of the Federal Reserve System in excess of
$100,000 (including any marginal, emergency, supplemental, special or
other reserves), plus (2) the then daily net annual assessment rate as
estimated by the Administrative Agent for determining the current
annual assessment payable by the Administrative Agent to the Federal
Deposit Insurance Corporation for insuring three-month certificates of
deposit.
"Administrative Agent" shall have the meaning provided in
the first paragraph hereof.
"Administrative Questionnaire" shall mean an Administrative
Questionnaire attached as Exhibit L.
"Advance" shall mean Advance Communication Corp., a Delaware
corporation.
"Advance/Newhouse" shall mean Advance/Newhouse Partnership,
a New York general partnership, of which Advance and Newhouse are
general partners.
"Advance/Newhouse Assets" shall have the meaning provided in
the TWEAN Contribution Agreement.
"Affected Principal Amount" shall have the meaning provided
in Section 2.15.
"Affiliate" shall mean, with respect to any Person, any
other Person directly or indirectly controlling, controlled by, or
under direct or indirect common control with such Person; provided,
however, that Persons shall not be deemed Affiliates solely by reason
of an individual being a director and/or officer of each such Person.
A Person shall be deemed to control another Person if such Person
possesses, directly or indirectly, the power (i) to vote 25% or more
of the securities having ordinary voting power for the election of
directors (or other comparable position if not a corporation) of such
Person or (ii) to direct or cause the direction of the management and
policies of such corporation, whether through the ownership of voting
securities, by contract or otherwise.
<PAGE>
"Agreement" shall have the meaning provided in the first
paragraph hereof.
"Allocated Loans" shall have the meaning provided in the
definition of "Transfer."
"Applicable Acquired Cable Business" shall mean the Acquired
Cable Business to be acquired in the Applicable Acquisition or to be
transferred in the Applicable Transfer.
"Applicable Acquisition" shall mean, for any representation
or warranty or any condition precedent, the Acquisition in connection
with which a Borrowing is being made on the date such representation
or warranty is being made or such condition precedent being satisfied.
"Applicable Acquisition Documents" shall mean, for the
Applicable Acquisition, the Acquisition Documents relating to such
Applicable Acquisition.
"Applicable Acquisition Funding Date" shall mean the
Acquisition Funding Date for the Applicable Acquisition.
"Applicable Fee Percentage", for any Borrower, shall mean
when such Borrower's Debt Ratings are as set forth below, the
percentage per annum set forth opposite such Debt Ratings below:
Debt Ratings Applicable
S&P Moody's Fee Percentage
BB or lower Ba2 or lower 0.3500%
BB+ Ba1 0.3125
BBB- Baa3 0.2000
BBB Baa2 0.1875
BBB+ or higher Baa1 or higher 0.1500
Any change in a Debt Rating of such Borrower shall be effective to
adjust the Applicable Fee Percentage as of the date such change is
announced by any Rating Agency, as evidenced in an Interest Rate
Certificate delivered pursuant to Section 5.01(e)(ii). If a Borrower
shall, at any time, have no Debt Rating, the Applicable Fee Percentage
for such Borrower, during
<PAGE>
such time, shall mean, when the Leverage Ratio of such Borrower is as
set forth below, the percentage per annum set forth opposite such
Leverage Ratio below:
Applicable
Leverage Ratio Fee Percentage
greater than or equal to 5.0 0.3500%
less than 5.0 and
greater than or equal to 4.0 0.3125
less than 4.0 0.2000
; provided, however, that if such Borrower shall cease to have Debt
Ratings solely because such Borrower elects not to participate or
otherwise cooperate in the ratings process of either Rating Agency,
the Applicable Fee Percentage for such Borrower shall not be less than
that before both of such Borrower's Debt Ratings became unavailable.
Any change in the Leverage Ratio of such Borrower shall be effective
to adjust the Applicable Fee Percentage as of the date for which the
Leverage Ratio is calculated in the Interest Rate Certificate
delivered pursuant to Section 5.01(e)(i) or (iii).
"Applicable Margin", for any Borrower, shall mean, when such
Borrower's Debt Ratings are as set forth below, the percentage set
forth opposite such Debt Rating below:
Debt Ratings Applicable Margin
S&P Moody's
B+ or lower B1 or lower 1.250%
BB- Ba3 1.000
BB Ba2 0.875
BB+ Ba1 0.750
BBB- Baa3 0.500
BBB Baa2 0.450
BBB+ or higher Baa1 or higher 0.375
<PAGE>
Any change in a Debt Rating of such Borrower shall be effective to
adjust the Applicable Margin as of the date such change is announced
by any Rating Agency, as evidenced in an Interest Rate Certificate
delivered pursuant to Section 5.01(e)(ii). If a Borrower shall, at any
time, have no Debt Rating, the Applicable Margin for such Borrower,
during such time, shall mean, when the Leverage Ratio of such Borrower
is as set forth below, the percentage set forth opposite such Leverage
Ratio below:
Leverage Ratio Applicable Margin
greater than or equal to 5.0 0.875%
less than 5.0 and
greater than or equal to 4.0 0.750
less than 4.0 0.500
; provided, however, that if such Borrower shall cease to have Debt
Ratings solely because such Borrower elects not to participate or
otherwise cooperate in the ratings process of either Rating Agency,
the Applicable Margin for such Borrower shall not be less than that
before both of such Borrower's Debt Ratings became unavailable. Any
change in the Leverage Ratio of such Borrower shall be effective to
adjust the Applicable Margin as of the date for which the Leverage
Ratio is calculated in the Interest Rate Certificate delivered
pursuant to Section 5.01(e)(i) or (iii).
"Applicable Transaction" shall mean the Applicable
Acquisition or the Applicable Transfer.
"Applicable Transaction Date" shall mean the date of the
Applicable Transaction.
"Applicable Transaction Documents" shall mean the Applicable
Acquisition Documents or the Applicable Transfer Documents.
"Applicable Transfer" shall mean, for any representation or
warranty or any condition precedent, the Transfer being consummated on
the date such representation or warranty is being made or such
condition precedent being satisfied.
"Applicable Transfer Date" shall mean the date of the
Applicable Transfer.
<PAGE>
"Applicable Transfer Documents" shall mean, for the
Applicable Transfer, the Transfer Documents relating to such
Applicable Transfer.
"Approved Lender" shall have the meaning provided in the
definition of "Cash Equivalents."
"Asset Sale" shall mean any sale, transfer or other
disposition, or series of related sales, transfers or other
dispositions, by TWI Cable or any of its Subsidiaries to any Person
other than TWI Cable or any of its Wholly Owned Subsidiaries, of any
asset or group of related assets; provided, however, that no Transfer
or series of Transfers shall be deemed an Asset Sale.
"Assignment and Acceptance" shall mean an Assignment and
Acceptance delivered pursuant to Section 9.04, substantially in the
form of Exhibit M.
"Assumed Indebtedness" shall mean the CVI Assumed
Indebtedness, the Gerry Assumed Indebtedness, the KBLCOM Assumed
Indebtedness and the Summit Assumed Indebtedness.
"Assumption" shall mean the assumption of the Allocated
Loans of TWI Cable by a Transferee Borrower in a Transfer. For
purposes of Article III, each Assumption shall be deemed a making of a
Loan.
"Assumption Date" shall mean the date of any Assumption.
"Authorized Officer" shall mean, with respect to any Person,
any senior officer of such Person, designated as such in writing to
the Administrative Agent by such Person.
"Availability" shall mean, with respect to any Borrower,
such Borrower's Available Borrowing Cap after giving effect to Section
2.01(a)(ii), but in no event shall the aggregate Availability of all
the Borrowers at any time exceed the Total Unutilized Commitment then
in effect. In allocating Availability among Borrowers for purposes of
determining the Commitment Fee, Availability shall first be allocated
to the Borrower with the highest Applicable Fee Percentage then in
effect, next to the Borrower with the next highest Applicable Fee
Percentage then in effect, and the remainder to the Borrower with the
lowest Applicable Fee Percentage then in effect.
<PAGE>
"Available Borrowing Cap" shall mean, with respect to any
Borrower, the excess, if any, of such Borrower's Borrowing Cap then in
effect over the aggregate amount of Loans then outstanding to such
Borrower.
"Bankruptcy Code" shall have the meaning provided in Section
7.05.
"Base Rate" shall mean a fluctuating interest rate equal to,
at any time, the highest of (i) the highest of the publicly announced
prime rate, base rate and reference rate of the Administrative Agent,
(ii) 1/2 of 1% per annum in excess of the Adjusted Floating CD Rate as
in effect at such time, and (iii) 1/2 of 1% per annum above the
weighted average of the rates on overnight Federal funds transactions
with members of the Federal Reserve System arranged by Federal funds
brokers (it being understood that the Base Rate is not necessarily
intended to be the lowest rate of interest determined by Chemical Bank
in connection with extensions of credit).
"Base Rate Borrowing" shall mean a Borrowing comprised of
Base Rate Loans.
"Base Rate Loans" shall mean a Loan which is specified as a
Base Rate Loan in the Notice of Borrowing or Notice of
Continuation/Conversion with respect to such Loan or which is deemed a
Base Rate Loan pursuant to Section 2.04 or 2.06 and which bears
interest at the rate provided in Section 2.07(a).
"Beneficial Assets" shall mean the TWE Beneficial Assets and
the TWEAN Beneficial Assets, and the related net cash flows.
"Beneficial Subsidiary" shall have the meaning provided in
Section 9.15(a).
"Borrower Material Adverse Effect" shall mean a material
adverse effect on (i) the condition (financial or other), business,
results of operations, properties or liabilities of any Borrower and
its Subsidiaries taken as a whole or (ii) the rights or remedies of
the Lenders or the ability of any Borrower to perform its obligations
to the Lenders under any Credit Document to which it is, or will be, a
party.
"Borrowers" shall mean TWE, TWEAN and TWI Cable,
collectively; and "Borrower" shall mean any of them.
<PAGE>
"Borrowing" shall mean a group of Revolving Loans of a
single Type made by the Lenders on a single date and as to which a
single Interest Period is in effect.
"Borrowing Cap" shall mean, (i) with respect to TWE,
$8,300,000,000, (ii) with respect to TWEAN, $5,000,000,000 and (iii)
with respect to TWI Cable, $4,000,000,000, in each case, as such
amount may be reduced from time to time pursuant to Section 2.09.
"Business Day" shall mean (i) any day excluding Saturday,
Sunday and any day which shall be in The City of New York, New York a
legal holiday or a day on which banking institutions are authorized by
law or other governmental actions to close; and (ii) with respect to
notices and determinations in connection with Eurodollar Loans, any
day which is a business day described in clause (i) above and which is
also a day for trading by and between banks in U.S. Dollar deposits in
London, England.
"Cable Business" shall mean a business substantially all of
which consists of the construction, ownership, operation, management,
promotion, extension or other utilization of any type of cable
television distribution system or any similar distribution business,
including the obtaining of a license or franchise to operate such a
system or business.
"Capital Lease" as applied to any Person, shall mean any
lease of any property (whether real, personal or mixed) by that Person
as lessee which, in conformity with GAAP, is, or is required to be,
accounted for as a capital lease on the balance sheet of that Person.
"Capital Stock" shall mean, with respect to any Person, any
and all shares, partnership interests, or other equivalents (however
designated and whether voting or non-voting) of, such Person's capital
stock, whether outstanding on the date hereof or hereafter issued, and
any and all rights, warrants or options exchangeable for or
convertible into such capital stock.
"Capitalized Lease Obligations" shall mean all obligations
under Capital Leases of such Person or any of its Subsidiaries, in
each case taken at the amount thereof accounted for as liabilities in
accordance with GAAP.
<PAGE>
"Cash Balance" means, with respect to any Borrower, the
excess (if any) of (i) the aggregate amount of cash and Cash
Equivalents held by such Borrower in excess of $100,000,000 in the
case of TWE, and $25,000,000 in the case of TWEAN or TWI Cable, over
(ii) the aggregate amount (determined without regard to write-offs) of
investments in such Borrower and its Subsidiaries (including loans and
equity investments) made by any Affiliate of such Borrower on and
after the date hereof.
"Cash Equivalents" shall mean (i) securities issued or
directly and fully guaranteed or insured by the United States of
America or any agency or instrumentality thereof (provided that the
full faith and credit of the United States of America is pledged in
support thereof) that (a) have maturities of not more than six months
from the date of acquisition thereof or (b) are subject to a
repurchase agreement with an institution described in clause (ii)(x)
or (y) below exercisable within six months from the date of
acquisition thereof, (ii) U.S. Dollar denominated time deposits,
certificates of deposit, Eurodollar time deposits, Eurodollar
certificates of deposit and bankers' acceptances of (x) any domestic
commercial bank of recognized standing having capital and surplus in
excess of $500,000,000 or (y) any bank whose short-term commercial
paper rating from S&P is at least A-2 or the equivalent thereof or
from Moody's is at least P-2 or the equivalent thereof (any such bank,
an "Approved Lender"), in each case with maturities of not more than
six months from the date of acquisition thereof, (iii) commercial
paper and variable and fixed rate notes issued by any Lender or
Approved Lender or by the parent company of any Lender or Approved
Lender and commercial paper and variable rate notes issued by, or
guaranteed by, any industrial or financial company with a short-term
commercial paper rating of at least A-2 or the equivalent thereof by
S&P or at least P-2 or the equivalent thereof by Moody's, and in each
case maturing within six months after the date of acquisition thereof,
and (iv) tax-exempt commercial paper of United States municipal, state
or local governments rated at least A-2 or the equivalent thereof by
S&P or at least P-2 or the equivalent thereof by Moody's and maturing
within six months after the date of acquisition thereof.
"Change of Control" shall mean any of the following:
(i) with respect to TWI, either (a) a Person or "group"
within the meaning of Sections 13(d) and 14(d) of the Exchange Act)
acquiring or having beneficial ownership
<PAGE>
(it being understood that a tender of shares or other equity
interests shall not be deemed acquired or giving beneficial ownership
until such shares or other equity interests have been accepted for
payment) of securities (including options) having a majority of the
ordinary voting power of TWI (including options to acquire such voting
power) or (b) persons who are the directors of TWI (or who constitute
the executive committee thereof) on the Effective Date constituting
that percentage necessary to approve corporate action ceasing to be
directors of TWI or directors designated or approved by such directors
or directors approved by such directors;
(ii) with respect to TWE, (a) TWI ceasing to own
beneficially, directly or indirectly through Subsidiaries, at
least 43-3/4% of the total equity in TWE, (b) a Person or
"group" (within the meaning of the Exchange Act) owning an
equity interest in TWE greater than that owned by TWI and its
Subsidiaries or (c) there being any managing General Partner of
TWE other than TWI and/or one or more of its Wholly Owned
Subsidiaries;
(iii) with respect to TWEAN, (a) TWE and TWI together
ceasing to own beneficially, directly or indirectly, a majority
of the TWEAN Partnership Interests, (b) TWE ceasing to own
beneficially, directly or indirectly, at least 40% of the TWEAN
Partnership Interests or (c) TWE ceasing to have management or
operational control over TWEAN under the TWEAN Partnership
Agreement comparable to such control on the Closing Date (it
being understood that a liquidation of TWEAN permitted under
Section 6.02(b) shall not be deemed a Change of Control); or
(iv) with respect to TWI Cable, (a) until the Leverage
Ratio of TWI Cable is less than 3.5:1.0, TWI Cable ceasing to be
a direct or indirect Wholly Owned Subsidiary of TWI, (b) after
the time specified in clause (a), TWI ceasing to own
beneficially, directly or indirectly through Subsidiaries,
securities having at least 66-2/3% of the ordinary voting power
of TWI Cable or (c) TWI ceasing to have the managerial and
operational control over TWI Cable that it would have if TWI
Cable were a Subsidiary of TWE or TWEAN.
"Closing Date" shall mean the date of the Initial Loans.
<PAGE>
"Code" shall mean the Internal Revenue Code of 1986.
"Combined Cash Flow" shall mean, for any period, the amount
calculated by combining, without duplication and otherwise in
accordance with GAAP, the Consolidated Cash Flow of each of the
Borrowers for such period.
"Combined Indebtedness" shall mean, at any date, the amount
calculated by combining, without duplication and otherwise in
accordance with GAAP, the Consolidated Total Debt of each of the
Borrowers at such date.
"Combined Leverage Ratio" shall mean, as of any date, the
ratio of Combined Indebtedness as of such date to Combined Cash Flow
for the Four Quarter Period ending on such date.
"Commercial Paper" shall have the meaning given to the term
"commercial paper" under Section 3(a)(3) of the Securities Act.
"Commitment" shall mean, with respect to each Lender, the
amount set forth opposite such Lender's name in Schedule 2.01, as the
same may be permanently terminated or reduced from time to time
pursuant to Section 2.09.
"Commitment Fee" shall have the meaning provided in Section
2.08(a).
"Commitment Termination Date" shall mean the Business Day
immediately preceding the Final Maturity Date.
"Companies" shall mean each of the Borrowers and their
respective Subsidiaries, collectively; and "Company" shall mean any of
them.
"Confidential Information" shall have the meaning specified
in Section 9.10.
"Confidential Information Memorandum" shall mean the
Confidential Information Memorandum dated April 1995 relating to the
loan facility hereunder.
"Consolidated Amortization Expense" shall mean, for any
period, for any Person, the amortization expense of such Person and
its consolidated Subsidiaries, determined on a consolidated basis in
accordance with GAAP.
<PAGE>
"Consolidated Cash Flow" shall mean, for any period, for any
Person, (A) the Consolidated Net Income of such Person for such period
plus (B) (to the extent deducted in calculating Consolidated Net
Income) the sum of (i) Consolidated Depreciation Expense, (ii)
Consolidated Amortization Expense (excluding amortization of film
inventory which does not constitute amortization of capitalized
interest expense, capitalized depreciation expense or purchase price
amortization resulting from the merger of a Subsidiary of Time
Incorporated and WCI), (iii) Consolidated Interest Expense, (iv)
income tax expenses of such Person and its Subsidiaries, each as
determined on a consolidated basis in accordance with GAAP after
eliminating all intercompany items, and (v) non-recurring non-cash
items (other than items referred to in clause (iii) or (iv) of the
definition of "Consolidated Net Income," which shall not be added
back) minus (C) the sum of (i) to the extent included in calculating
Consolidated Net Income, interest income (including interest on cash
or Cash Equivalents) and (ii) to the extent not previously deducted as
an expense in determining Consolidated Net Income, Management Fees
actually paid in cash or other consideration in such period by such
Person or its Subsidiaries, all as determined on a consolidated basis
for such Person and its Subsidiaries in accordance with GAAP.
"Consolidated Cash Interest Expense" shall mean, for any
period, for any Person, Consolidated Interest Expense for such Person,
but excluding, to the extent otherwise included therein, interest
expense to the extent not payable in cash (e.g., interest or dividends
on securities paid in additional securities, imputed interest and
amortization of original issue discount), amortization of discount and
deferred financing costs.
"Consolidated Depreciation Expense" shall mean, for any
period, for any Person, the depreciation expense of such Person and
its consolidated Subsidiaries, determined on a consolidated basis in
accordance with GAAP.
"Consolidated Interest Expense" shall mean, for any period,
for any Person, the interest expense of such Person and its
consolidated Subsidiaries, including, without duplication, total
interest expense for such period (including that attributable to
Capital Leases in accordance with GAAP) with respect to all
outstanding Indebtedness of such Person and its consolidated
Subsidiaries, including all capitalized interest, all commissions,
discounts and other fees and charges owed with respect to letters of
credit and bankers' acceptance financing,
<PAGE>
as such amount may be increased or decreased by the net income or loss
from Interest Rate Agreements for such period determined in accordance
with GAAP, but excluding, without duplication, any amounts payable
pursuant to Section 2.08 (other than amounts payable pursuant to
Section 2.08(b)), all determined on a consolidated basis for such
period taken as a single accounting period.
"Consolidated Net Income" shall mean, for any period, for
any Person, the net income (or loss) of such Person and its
Subsidiaries on a consolidated basis for such period taken as a single
accounting period determined in conformity with GAAP; provided,
however, that the following, without duplication, shall be excluded:
(i) the income (or loss) of any Person that is not a Subsidiary of
such Person and in which any other Person (other than such Person or
any of its Subsidiaries) has a joint interest, (ii) the income (or
loss) of any Person accrued prior to the date it becomes a Subsidiary
of such Person or is merged into or consolidated with such Person or
any of its Subsidiaries or that Person's assets are acquired by such
Person or any of its Subsidiaries, (iii) the income of any Subsidiary
of such Person to the extent that the declaration or payment of
dividends or similar distributions by that Subsidiary of that income
is not at the time permitted by operation of the terms of its charter
or any agreement or instrument (other than, in the case of TWEAN, the
provisions of Section 6.06(a)), judgment, decree, order, statute, rule
or governmental regulation applicable to that Subsidiary, (iv)
dividends, interest, income or other distributions or payments on any
investment in or with respect to any Unrestricted Subsidiary or with
respect to any other Person which is not a Subsidiary of such Person
(other than with respect to calculations made pursuant to Section
6.11(b) to the extent any such dividends, interest, or other
distributions or payments are actually paid or made), (v) the income
(or loss) realized by such Person or any of its Subsidiaries from
dispositions of assets otherwise than in the ordinary course of
business (including as the result of the sale of any business assets,
business segment, business operation or Investment), (vi) the income
resulting from any write-up of any asset, (vii) the aggregate net gain
(or loss) during such period arising from any revaluation (but not
sale) of readily marketable securities, (viii) the aggregate net gain
(or loss) during such period arising from extraordinary transactions
and (ix) the income (or loss) from discontinued operations.
<PAGE>
"Consolidated Total Debt" of any Person shall mean, as at
any time of determination, the total Indebtedness of such Person and
its consolidated Subsidiaries, determined on a consolidated basis in
accordance with GAAP, as at such time.
"Contingent Obligations", as applied to any Person, shall
mean any direct or indirect liability, contingent or otherwise, of
that Person (x) with respect to any indebtedness, lease, dividend,
letter of credit or other obligation of another if the primary purpose
or intent thereof by the Person incurring the Contingent Obligation is
to provide assurance to the obligee of such obligation of another that
such obligation of another will be paid or discharged, or that any
agreements relating thereto will be complied with, or that the holders
of such obligation will be protected (in whole or in part) against
loss in respect thereof, (y) under any letter of credit issued for the
account of that Person or for which that Person is otherwise liable
for reimbursement thereof, or (z) under Currency Agreements or
Interest Rate Agreements. Contingent Obligations shall include (a) the
direct or indirect guarantee, endorsement (otherwise than for
collection or deposit in the ordinary course of business), co-making,
discounting with recourse or sale with recourse by such Person of the
obligation of another, and (b) any liability of such Person for the
obligations of another through any agreement (contingent or otherwise)
(i) to purchase, repurchase, or otherwise acquire such obligation or
any security therefor, or to provide funds for the payment or
discharge of such obligation (whether in the form of loans, advances,
stock purchases, capital contributions or otherwise), (ii) to maintain
the solvency or any balance sheet item, level of income or financial
condition of another, or (iii) to make take-or-pay or similar payments
if required regardless of non-performance by any other party or
parties to an agreement, if in the case of any agreement described
under clause (i) or (ii) the primary purpose or intent thereof is as
described in the preceding sentence. The amount of any Contingent
Obligation shall be equal to the amount of the obligation so
guaranteed or otherwise supported.
"Convertible Intercompany Debt" shall mean any Indebtedness
for money borrowed of (a) any Borrower owing to TWI or any of its
Subsidiaries in each case, or (b) any Foreign Subsidiary owing to TWI
that, in each case, (i) is issued on terms, including as to
subordination, reasonably satisfactory to the Administrative Agent,
(ii) if owed to a Person other than a Borrower or a Restricted
Subsidiary of a Borrower, is convertible into equity of the Borrower
owing such Indebtedness
<PAGE>
upon (x) its liquidation or dissolution, (y) failure to repay any
Loans at final maturity or (z) acceleration of the maturity of any
Loans hereunder, and (iii) provides that principal thereof and
interest thereon may not be paid except to the extent permitted under
Section 6.06.
"Coverage Ratio" as of any date shall mean, with respect to
any Borrower, the ratio of Consolidated Cash Flow to Consolidated Cash
Interest Expense of such Borrower, in each case for the Four Quarter
Period ending on such date.
"Credit Documents" shall mean this Agreement, each of the
Notes and each of the Guarantees, including the exhibits, schedules
and any other attachments hereto and thereto.
"Credit Parties" shall mean the Borrowers and the
Guarantors; and "Credit Party" shall mean any of them. For purposes of
Section 3.02(d)(i), the term "Credit Party" shall include, at any
Acquisition Funding Date, any Person that is to become a Credit Party
on such Acquisition Funding Date.
"Currency Agreement" shall mean any foreign exchange
contract, currency swap agreement, futures contract, option contract,
synthetic cap or other similar agreement designed to protect the
Persons entering into the same against fluctuations in currency
values.
"CVI" shall mean Cablevision Industries Corporation, a
Delaware corporation, and its Subsidiaries.
"CVI Acquisition" shall mean the acquisition of CVI by a
Wholly Owned Subsidiary of TWI pursuant to the CVI Acquisition
Documents.
"CVI Acquisition Documents" shall mean the documents
identified as such on Schedule A.
"CVI Assumed Indebtedness" shall mean the Indebtedness of
CVI which is to be outstanding at the time of the CVI Acquisition, as
set forth on Schedule 4.05.
"Debt Ratings" shall mean, for any Borrower, the ratings of
such Borrower's Long Term Debt Issues assigned by the Rating Agencies;
provided, however, that, for purposes of determining the Applicable
Margin and the Applicable Fee Percentage, (i) if the ratings assigned
by the Rating Agencies shall differ by one level (including numerical
modifiers and
<PAGE>
(+) and (-) as levels), the rating which is the higher level shall be
used, (ii) if the ratings assigned by the Rating Agencies shall differ
by more than one level (including numerical modifiers and (+) and (-)
as levels), the rating which is one level lower than the higher rating
shall be used and (iii) if such Borrower's Long Term Debt Issues are
rated by only one Rating Agency, subject to the first proviso of each
of the definitions of "Applicable Fee Percentage" and "Applicable
Margin," the rating assigned by such Rating Agency shall be used.
"Default" shall mean any event, act or condition which with
notice or lapse of time, or both, would constitute an Event of
Default.
"Documentation and Syndication Agents" shall mean the
Persons identified as such on the cover page hereof.
"Documents" shall mean the Credit Documents and the
Transaction Documents.
"Effective Date" shall have the meaning set forth in Section
9.04(a).
"ERISA" shall mean the Employee Retirement Income Security
Act of 1974. Section references to ERISA are to ERISA as in effect at
the date of this Agreement and any subsequent provisions of ERISA
amendatory thereof, supplemental thereto or substituted therefor.
"ERISA Affiliate" shall mean, of any Person, each person (as
defined in Section 3(9) of ERISA) which together with such Person
would be deemed to be a single "employer" within the meaning of
Section 414(b), (c), (m) or (o) of the Code.
"ERISA Entity" shall mean the Credit Parties and each of
their respective ERISA Affiliates, collectively; and "ERISA Entity"
shall mean any of them.
"Eurodollar Borrowing" shall mean a Borrowing comprised of
Eurodollar Loans.
"Eurodollar Loans" shall mean a Loan which is specified as a
Eurodollar Loan in the Notice of Borrowing or Notice of
Continuation/Conversion with respect to such Loan and which bears
interest at the rate provided in Section 2.07(a).
<PAGE>
"Eurodollar Rate" shall mean, for any Interest Rate
Determination Date, the arithmetic average (rounded to the nearest
1/16 of 1%) of the offered quotation, if any, to first class banks in
the interbank Eurodollar market by the Administrative Agent for U.S.
Dollar deposits of amounts comparable to the principal amount of the
Eurodollar Loan of the Administrative Agent for which the Eurodollar
Rate is being determined with maturities comparable to the Interest
Period for which such Eurodollar Rate will apply as of approximately
10:00 A.M. two Business Days prior to the commencement of such
Interest Period.
"Event of Default" shall have the meaning provided in
Article VII.
"Exchange Act" shall mean the Securities Exchange Act of
1934.
"Existing Issues" shall have the meaning specified in the
definition of "Long Term Debt Issues."
"Existing TWE Credit Agreement" shall mean the Amended and
Restated Credit Agreement dated as of June 23, 1992 among TWE and the
banks, managing agents, agents and co-agents party thereto.
"Expiration Date" shall mean the close of business on
September 30, 1995.
"Expired Put Indebtedness" shall have the meaning provided
in Section 2.01(b).
"Facility Fee" shall have the meaning provided in Section
2.08(b).
"FCC" shall mean the Federal Communications Commission.
"Federal Funds Effective Rate" shall mean, for any period, a
fluctuating interest rate equal for each day during such period to 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 for such day (or, if such day is not a Business
Day, for the next preceding Business Day) by the Federal Reserve Bank
of New York, or, if such rate is not so published for any day which is
a Business Day, the average of the quotations for such day on
<PAGE>
such transactions received by the Administrative Agent
from three Federal funds brokers of recognized standing selected by
the Administrative Agent.
"Fees" shall mean all fees payable pursuant to or referred
to in Section 2.08.
"Film Financing" shall mean, without duplication, (i)
monetary obligations arising out of transactions in which so-called
tax-based financing groups or other third-party investors provide
financing for the acquisition, production or distribution of motion
pictures, television programs, sound recordings or books or rights
with respect thereto in exchange, in part, for certain tax or other
benefits which are derived from such motion pictures, television
programs, sound recordings, books or rights; provided, however, that
no such monetary obligations shall be, directly or indirectly,
recourse (including by way of set-off) to any of the Borrowers or
their Restricted Subsidiaries or any of their respective assets other
than to the profits or distribution rights related to such motion
pictures, television programs, sound recordings, books or rights and
other than to a Subsidiary of TWE substantially all of the assets of
which consist of the motion pictures, video and television programming
or rights which are the subject of such transaction and related cash
and cash equivalents and (ii) guarantees by any Company of any
monetary obligations described in clause (i).
"Final Maturity Date" shall mean June 30, 2000.
"Financial Statements" shall mean, of any Person for any
period, (x) balance sheets of such Person and its Subsidiaries, on a
consolidated basis, as of the end of such period and (y) the related
statements of operations, stockholders' or partners' equity and cash
flows for such period and, if such period is not a fiscal year, for
the then elapsed portion of the fiscal year.
"Foreign Subsidiary" shall mean any Subsidiary of a Borrower
that is incorporated or organized under the laws of any jurisdiction
other than the United States or any state thereof, the U.S. Virgin
Islands and Puerto Rico and does substantially all of its business
outside the United States, the U.S. Virgin Islands and Puerto Rico.
"Four Quarter Period" shall mean a period consisting of four
full consecutive fiscal quarters.
<PAGE>
"Franchise" shall mean, with respect to any Person, a
franchise, license, authorization or right to construct, own, operate,
manage, promote, extend or otherwise utilize any cable television
distribution system operated or to be operated by such Person or any
of its Subsidiaries granted by any state, county, city, town, village
or other local government authority or by the FCC, but shall not
include any such franchise, license, authorization or right which is
incidentally required for the purpose of installing, constructing or
extending a cable television system.
"Funding Date" shall mean the date of the making of any
Loan, including the Closing Date, any Acquisition Funding Date and any
Assumption Date (it being understood that no continuation or
conversion of a Loan shall be deemed to be a making of a Loan).
"GAAP" shall mean generally accepted accounting principles
in the United States of America.
"General Partner" shall mean any Person defined as such in
the TWE Partnership Agreement or any TWEAN Partner.
"Gerry Acquisition" shall mean the acquisition of the Gerry
Subs by either TWEAN or TWI Cable pursuant to the Gerry Acquisition
Documents.
"Gerry Acquisition Documents" shall mean the documents
identified as such in Schedule A.
"Gerry Assumed Indebtedness" shall mean the Indebtedness of
the Gerry Subs which is to be outstanding at the time of the Gerry
Acquisition, as set forth in Schedule 4.05.
"Gerry Subs" shall mean the cable systems listed in Schedule
B, which are owned, directly or indirectly, by Alan Gerry.
"Governmental Authority" shall mean any Federal, state,
local or foreign court or governmental agency, authority,
instrumentality or regulatory body or any subdivision thereof.
"guarantee" shall mean any obligation, contingent or
otherwise, of any Person directly or indirectly guaranteeing any
Indebtedness or Film Financing or other obligation for the payment of
money of any other Person and, without limiting the
<PAGE>
generality of the foregoing, any obligation, direct or indirect,
contingent or otherwise, of such Person (i) to purchase or pay (or
advance or supply funds for the purchase or payment of) such
Indebtedness or other obligation of such other Person (whether arising
by virtue of partnership arrangements, by agreement to keep-well, to
purchase assets, goods, securities or services, to take-or-pay, or to
maintain financial statement conditions or otherwise) or (ii) entered
into for the purpose of assuring in any other manner the obligee of
such Indebtedness or other obligation of the payment thereof or to
protect such obligee against loss in respect thereof (in whole or in
part); provided, however, that the term "guarantee" shall not include
endorsements for collection or deposit in the ordinary course of
business. The term "guarantee" used as a verb has a corresponding
meaning.
"Guarantee" shall mean a TWE Partner Guarantee, Holder
Guarantee, Subsidiary Guarantee, TWE Guarantee or Paragon Guarantee.
"Guaranteed Percentage" shall mean, with respect to any TWE
Partner Guarantor, the percentage of the obligations of TWE hereunder
being guaranteed by such TWE Partner Guarantor, as set forth opposite
such TWE Partner Guarantor's name on Schedule 3.01 or such other
percentage designated by TWE from time to time in writing and
reasonably satisfactory to the Administrative Agent; provided,
however, that (i) with respect to any TWE Partner Guarantor, the
Guaranteed Percentage may be changed only in connection with the
merger or consolidation of such TWE Partner Guarantor, (ii) at all
times the sum of the Guaranteed Percentages of all TWE Partner
Guarantors shall equal 100% and (iii) with respect to any TWE Partner
Guarantor that owns, directly or indirectly, any Beneficial Assets,
such TWE Partner Guarantor's Guaranteed Percentage may not be changed
unless at the time of such change the representations and warranties
contained in Section 4.19(a) shall be true and correct.
"Guarantor" shall mean any TWE Partner Guarantor, any Holder
Guarantor, any Subsidiary Guarantor, TWE in its capacity as a
guarantor of the Obligations of TWEAN or Paragon in its capacity as a
guarantor of the Obligations of TWEAN and TWI Cable, each of which is
designated as such on Schedule C.
"Holder Guarantee" shall mean a guarantee by a Holder
Guarantor of the Guarantee of the TWE Partner Guarantor that is
<PAGE>
its most immediate direct or indirect parent, substantially
in the form of Exhibit G-3.
"Holder Guarantor" shall have the meaning provided in
Section 3.01(i).
"Incur" shall mean, with respect to any Indebtedness, to
incur, create, issue, assume, guarantee or otherwise become liable for
or with respect to, or become responsible for the payment of,
contingently or otherwise, such Indebtedness; provided, however, that
the term "Incur" shall not include conversions or continuations of
Loans.
"Indebtedness" of any Person shall mean, without
duplication, (i) all indebtedness of such Person for borrowed money or
evidenced by bonds, notes, debentures or similar instruments, (ii) the
deferred purchase price of any acquisition of a business, operation,
business segment or other group of operating or revenue-producing
assets (including any obligations with respect to non-compete or other
similar arrangements entered into in connection with such
acquisition), whether or not such acquisition was made in the ordinary
course of business, (iii) the face amount of all letters of credit
issued for the account of such Person to the extent of all drafts
drawn thereunder, (iv) all indebtedness of a second Person secured by
any Lien on any property owned by such first Person, whether or not
such indebtedness has been assumed (but only to the extent of the
lesser of the fair market value of the property subject to such Lien
and the amount of indebtedness of such second Person), (v) all
Capitalized Lease Obligations of such Person, (vi) all obligations of
such Person to pay a specified purchase price for goods or services
whether or not delivered or accepted (i.e., take-or-pay and similar
obligations) (other than where the obligation is classified on such
Person's financial statements in accordance with GAAP as an account
payable), (vii) all Contingent Obligations of such Person to the
extent such Contingent Obligations relate to any obligation that would
otherwise constitute Indebtedness and (viii) Film Financings and all
other obligations that would otherwise be Film Financings but for the
proviso contained in the definition thereof, but, in the case of TWE,
only to the extent that Film Financings and such other obligations
exceed $250,000,000 in the aggregate at any time outstanding;
provided, however, that in each of the foregoing clauses (i) through
(viii) Indebtedness shall not include (a) obligations in respect of
trade payables and accrued expenses, in each case arising in the
ordinary course of business (including up to $65,000,000 in the
<PAGE>
aggregate at any time outstanding for all of the Borrowers of
obligations with respect to letters of credit supporting lease payment
obligations, insurance premium payment obligations and other trade
payables entered into in the ordinary course of business that, in each
case, are not secured by the related assets); (b) any obligation of
such Person or any Subsidiary thereof to purchase products and
services utilized in its business pursuant to agreements entered into
the ordinary course of business; (c) any obligation of such Person to
guarantee performance of, or enter into indemnification agreements
with respect to, obligations, entered into in the ordinary course of
business, under any and all Franchises, leases, performance bonds,
franchise bonds, obligations to reimburse drawings under letters of
credit issued in lieu of performance or franchise bonds; (d)
completion bonds or guarantees or indemnities of a similar nature
issued in the ordinary course of business in connection with the
production of motion pictures and video and television programming;
(e) obligations, if any, to make payments described under clause (b)
of the second sentence of the definition of "Restricted Payments"; and
(f) amounts owed to TWI by any TWE Partner Guarantor or any holder of
TWE Material Beneficial Assets arising in the ordinary course of
business with respect to deferred tax payments arising out of assets
(other than Beneficial Assets) held by such holder but only if such
obligations are subordinated to the Guarantee of such holder.
"Indemnitee" shall have the meaning provided in Section
9.05(b).
"Initial Loans" shall mean the initial Loans to be made
hereunder on the Closing Date.
"Interest Payment Date" shall mean, with respect to any
Loan, (i) the last day of each Interest Period applicable thereto and,
in the case of a Eurodollar Loan with an Interest Period of more than
three months' duration, each day that would have been an Interest
Payment Date for such Loan had successive Interest Periods of three
months' duration been applicable to such Loan and (ii) the date of any
prepayment or repayment of a Loan or conversion of a Loan to a Loan of
a different Type.
"Interest Period" shall mean (a) as to any Eurodollar
Borrowing of any Borrower, the period commencing on the date of such
Borrowing or on the last day of the immediately preceding Interest
Period applicable to such Borrowing, as the case may be, and ending on
the numerically corresponding day (or, if there is no numerically
corresponding day, on the last day) in
<PAGE>
the calendar month that is (i) one, two, three or six months
thereafter, as such Borrower may elect, (ii) twelve months thereafter
if such Borrower shall have so elected and the Administrative Agent,
after consultation with the Lenders, shall have determined in good
faith based on then prevailing conditions in the interbank Eurodollar
market that U.S. Dollar deposits are generally then being offered to
first class banks in the interbank Eurodollar market for a comparable
maturity and all of the Lenders shall have agreed to such Interest
Period or (iii) one month thereafter if such Borrower shall have made
no election as to the Interest Period; and (b) as to any Base Rate
Borrowing, the period commencing on the date of such Borrowing or on
the last day of the immediately preceding Interest Period applicable
to such Borrowing, as the case may be, and ending on the earliest of
(i) the next succeeding March 31, June 30, September 30 or December
31, (ii) the Final Maturity Date, and (iii) the date such Borrowing is
converted to a Borrowing of a different Type in accordance with
Section 2.06 or repaid or prepaid in accordance with Section 2.10 or
2.11; provided, however, that if any Interest Period would end on a
day other than a Business Day, such Interest Period shall be extended
to the next succeeding Business Day unless, in the case of Eurodollar
Loans only, such next succeeding Business Day would fall in the next
calendar month, in which case such Interest Period shall end on the
next preceding Business Day.
"Interest Rate Agreement" shall mean any interest rate swap
agreement, interest rate cap agreement, interest rate collar
agreement, interest rate futures contract, interest rate option
contract or other similar agreement or arrangement designed to manage
the exposure of a Person or any of its Subsidiaries to fluctuating
interest rates.
"Interest Rate Certificate" shall mean an Officers'
Certificate substantially in the form of Exhibit E, delivered pursuant
to Section 3.01(a)(iii) or 5.01(e).
"Interest Rate Determination Date" shall mean each date for
calculating the Eurodollar Rate for purposes of determining the
interest rate in respect of an Interest Period. The Interest Rate
Determination Date shall be the second Business Day prior to the first
day of the related Interest Period.
"Investment" by any Person means any direct or indirect (i)
loan, advance or other extension of credit or contribution to any
other Person (by means of transfers of cash or other property to
others, payments for property or services for
<PAGE>
the account or use of others, mergers or otherwise), (ii) purchase or
acquisition of Capital Stock, bonds, notes, debentures or other
securities or evidences of Indebtedness issued by any other Person
(whether by merger, consolidation, amalgamation or otherwise and
whether or not purchased directly from the issuer of such securities
or evidences of Indebtedness), and (iii) all other items that would be
classified as investments on a balance sheet of such Person prepared
in accordance with GAAP. Investments shall exclude extensions of trade
credit and advances to customers and suppliers to the extent in the
ordinary course of business and made in accordance with customary
industry practice. The amount of any Investment shall be the original
cost of such Investment plus the cost of all additions thereto,
without any adjustments for increases or decreases in value, or
write-ups, write-downs or write-offs with respect to such Investment.
"KBLCOM" shall mean KBLCOM Incorporated, a Delaware
corporation, and its Subsidiaries.
"KBLCOM Acquisition shall mean the acquisition of KBLCOM by
TWI Cable pursuant to the KBLCOM Acquisition Documents.
"KBLCOM Acquisition Documents" shall mean the documents
identified as such on Schedule A.
"KBLCOM Assumed Indebtedness" shall mean the Indebtedness of
KBLCOM which is to be outstanding at the time of the KBLCOM
Acquisition, as set forth on Schedule 4.05.
"Lender" shall have the meaning provided in the first
paragraph hereof.
"Leverage Ratio" shall mean, as of any date, (i) with
respect to any Borrower, the ratio of Net Total Debt of such Borrower
as of such date to Consolidated Cash Flow of such Borrower for the
Four Quarter Period ending on such date, and (ii) with respect to TWI,
the ratio of Consolidated Total Debt of TWI as of such date to
Consolidated Cash Flow of TWI for the Four Quarter Period ending on
such date.
"LIBID Rate" shall mean, with respect to a Eurodollar Loan
for the relevant Interest Period, the bid quotation (or if there shall
be more than one bid quotation, the arithmetic mean of such
quotations) that appears on the "LIBO" page of the Reuter Monitor
System (or a successor page displaying the
<PAGE>
London interbank bid rates) as of 11:00 a.m. on the date of
determination, for U.S. Dollar deposits for a period comparable to
such Interest Period.
"Lien" shall mean any mortgage, pledge, security interest,
encumbrance, lien or charge of any kind (including any agreement to
give any of the foregoing (other than equal and ratable lien
provisions), any conditional sale or other title retention agreement
or any lease in the nature thereof).
"Loans" shall mean the Revolving Loans and the Swingline
Loans.
"Long Term Debt Issues", of any Borrower, shall mean each
separate issuance or series of outstanding long term debt of such
Borrower that is (a) unsecured, (b) not subordinated in right of
payment to any other Indebtedness of such Borrower and (c) not
guaranteed or does not have credit support provided, directly or
indirectly, by any other Person; provided, however, that (x) if at any
time no such Indebtedness shall be outstanding and (y) for purposes of
Section 5.01(e)(ii), Long Term Debt Issues shall include the Revolving
Loans; provided, further, however, the foregoing clause (c) shall not
prevent (A) any issue of long term debt of TWE Incurred under an
indenture dated as of April 30, 1992, as supplemented by supplemental
indentures dated as of June 30, 1992, December 9, 1992, October 12,
1993 and March 29, 1994, which debt is outstanding on the date hereof
(the "Existing Issues"), from qualifying as a Long Term Debt Issue,
but only so long as such issue shall not have greater credit support
than it does on the date hereof or (B) any other issue of long term
debt of TWE Incurred under such indenture having terms (other than
interest rate and maturity) substantially similar to the Existing
Issues from qualifying as a Long Term Debt Issue.
"Management Fees" shall mean (i) the management fees payable
by TWE to TWI pursuant to Section 12.10 of the TWE Partnership
Agreement, in an amount equal to $5,000,000 per month, as adjusted to
reflect increases in the Consumer Price Index from January 1, 1991,
(ii) without duplication of any amounts paid under clause (iii) below,
the management fees payable by TWE to USW pursuant to Section 8(h) of
the Admission Agreement dated as of May 16, 1993 between TWE and USW,
in an aggregate amount equal to $130,000,000, of which (A) no more
than $10,000,000 shall be paid prior to September 15, 1995, (B) no
more than an additional $20,000,000 shall be paid prior to September
15, 1996, (C) no more than an additional
<PAGE>
$40,000,000 shall be paid prior to September 15, 1997 and (D) no more
than $60,000,000 shall be paid prior to , 1998, (iii) the management
fees payable by TWEAN to TWE pursuant to Section 3.1(h) of the TWEAN
Partnership Agreement, and (iv) the management fees paid by TWI Cable
to TWE in consideration of TWE's managing the Acquired Cable
Businesses owned by TWI Cable, which consideration shall be determined
on an arms' length basis.
"Margin Stock" shall have the meaning provided in Regulation U.
"Material Asset" shall mean, at any date of determination
for any Borrower, any asset, related group of assets, business or
division of such Borrower or any of its Subsidiaries (including any
capital stock of any Subsidiary of such Borrower) which (i) for the
most recently ended fiscal year of such Borrower accounted or would
have accounted for more than 5% of the Consolidated Cash Flow
(determined on a Pro Forma Basis after giving effect to the
acquisition or disposition of such asset, group of assets, business or
division) of such Borrower and its Subsidiaries taken as a whole for
such period or (ii) had a book or fair market value greater than
$250,000,000, $100,000,000 or $50,000,000 in the case of TWE, TWEAN or
TWI Cable, respectively.
"Material Beneficial Asset" shall mean a TWE Material
Beneficial Asset or a TWEAN Material Beneficial Asset.
"Material Plan" shall have the meaning provided in Section
7.06.
"Material Subsidiary", of any Person, shall mean each
Subsidiary of such Person which, either alone or together with the
Subsidiaries of such Subsidiary, meets any of the following
conditions:
(i) The investments of such Person and its Subsidiaries in, or
their proportionate share (based on their equity
interests) of the fair value or book value of the total
assets (after intercompany eliminations) of, the
Subsidiary in question exceeds 5% of the fair market or
book value, respectively, of the total assets of such
Person and its Subsidiaries;
(ii) The equity of such Person and its Subsidiaries in the
revenues of the Subsidiary in question exceeds 5% of
<PAGE>
the revenues from continuing operations of such Person and its
Subsidiaries (on a consolidated basis) for the twelve-month period
ending on the last day of such Person's most recently ended fiscal
quarter; or
(iii) The equity of such Person and its Subsidiaries in the
Consolidated Cash Flow of the Subsidiary in question
exceeds 5% of the Consolidated Cash Flow of such Person
and its Subsidiaries for the twelve-month period ended on
the last day of such Person's most recently ended fiscal
quarter.
"Maximum Permitted Indebtedness" means, with respect to any
Borrower at any time, the maximum amount of Indebtedness that such
Borrower could then have outstanding pursuant to this Agreement
without giving rise to a Default or Event of Default.
"Minimum Borrowing Amount" shall mean $20,000,000.
"Moody's" shall mean Moody's Investors Service, Inc.
"Multiemployer Plan" shall mean a "multiemployer plan", as
defined in Section 4001(a)(3) of ERISA, (i) to which any of the Credit
Parties or any of their respective ERISA Affiliates is contributing,
or at any time within the immediately preceding five calendar years
has contributed, (ii) to which any of the Credit Parties or any of
their respective ERISA Affiliates has, or, at any time within the
immediately preceding five calendar years has had, an obligation to
contribute or (iii) with respect to which any of the Credit Parties
retains any liability.
"Net Proceeds" shall mean, with respect to any Asset Sale,
an amount equal to the Sale Proceeds less reasonable fees and
out-of-pocket expenses directly incurred as a result of such Asset
Sale or the receipt of such Sale Proceeds, including payment of the
outstanding principal amount of or premium or penalty, if any, on any
Indebtedness (other than Loans) which is required to be repaid as a
result of such Asset Sale, incremental income taxes and sales and
other taxes paid or payable as a direct result thereof, as such amount
is determined in good faith by TWI Cable, and certified in an
Officers' Certificate by TWI Cable to the Administrative Agent.
"Net Total Debt" shall mean, for any Borrower, the excess,
if any, over the Cash Balance of the sum of, without duplication, (i)
Consolidated Total Debt of such Borrower,
<PAGE>
(ii) any unpaid Tax Distributions, whether or not accrued or required
to be accrued under applicable accounting principles and (iii) in the
case of TWE or TWEAN, any Indebtedness of any holder of TWE Material
Beneficial Assets or TWEAN Material Beneficial Assets, as the case may
be, other than (x) the Specified Holders and (y) in the case of TWEAN,
TWE and its Restricted Subsidiaries (other than TWEAN).
"New Lending Office" shall have the meaning provided in
Section 2.18(g).
"Newhouse" shall mean Newhouse Broadcasting Corporation, a
New York corporation.
"New York Court" shall have the meaning specified in Section
9.13.
"Non-Recourse Entities" shall mean, with respect to any
Borrower, (i) Unrestricted Subsidiaries of such Borrower and (ii)
joint ventures or other entities (a) in which such Borrower and/or any
of its Subsidiaries own 50% or less of the voting or economic interest
in such entity (without regard to any contingency), (b) the
liabilities and other obligations of which are not, directly or
indirectly, recourse (including by way of set off) to such Borrower
and its Subsidiaries or any of their respective assets (other than to
other Non-Recourse Entities) and (c) the results of operations of
which are not otherwise consolidated with such Borrower in the
consolidated financial statements of such Borrower.
"Non-U.S. Lender" shall have the meaning provided in Section
2.18(g).
"Notes" shall mean the Revolving Notes and the Swingline
Notes.
"Notice of Borrowing" shall mean an irrevocable notice
substantially in the form of Exhibit A.
"Notice of Conversion/Continuation" shall mean an
irrevocable notice substantially in the form of Exhibit B.
"Obligations" shall mean all amounts, direct or indirect,
contingent or absolute, of every type or description, and at any time
existing, owing to the Administrative Agent or any Lender pursuant to
the terms of any Credit Document.
<PAGE>
"Officers' Certificate" shall mean, with respect to any
Person, a certificate executed on behalf of such Person by one of its
Authorized Officers and by its Chief Financial Officer, its Treasurer
or any other officer reasonably acceptable to the Administrative
Agent; provided, however, that every Officers' Certificate with
respect to the compliance with a condition precedent to the making of
any Loan hereunder shall include (i) a statement that the officer or
officers making or giving such Officers' Certificate have read such
condition and any definitions or other provisions contained in this
Agreement relating thereto, (ii) a statement that in the opinion of
the signers, they have made or have caused to be made such examination
or investigation as is necessary to enable them to express an informed
opinion as to whether or not such condition has been complied with,
and (iii) a statement as to whether, in the opinion of the signers,
such condition has been complied with.
"Officer's Solvency Certificate" shall mean a solvency
certificate signed by the Chief Financial Officer (or its equivalent)
of a Borrower, substantially in the form of Exhibit D.
"Organizational Documents" shall mean (i) the Certificate of
Limited Partnership of TWE filed with the Secretary of State of the
State of Delaware, (ii) the Partnership Agreements, (iii) the TWEAN
Contribution Agreement, (iv) the articles of incorporation of each
Credit Party that is a corporation, which for purposes of Section
3.01(d) shall be certified as of a recent date by the Secretary of
State of the state of incorporation of such Credit Party, (v) the
bylaws of each Credit Party that is a corporation, which for purposes
of Section 3.01(d) shall be certified as of a recent date by the
corporate secretary or assistant secretary of such Credit Party, and
(vi) the organizational documents of each Credit Party (other than any
Borrower) that is not a corporation.
"Other Taxes" shall have the meaning provided in Section
2.18(b).
"Paragon" shall mean Paragon Communications, a Colorado
general partnership.
"Paragon Guarantee" shall mean a guarantee by Paragon of all
of the Obligations of TWI Cable and of 50% of the Obligations of
TWEAN, substantially in the form of Exhibit G-4.
<PAGE>
"Partner" shall mean a TWE Partner or a TWEAN Partner.
"Partnership Agreements" shall mean the TWE Partnership
Agreement and the TWEAN Partnership Agreement; and "Partnership
Agreement" shall mean either of them.
"Partnership Interest" shall mean a TWE Partnership Interest
or a TWEAN Partnership Interest.
"Payment Office" shall mean 270 Park Avenue, New York, New
York 10017 or such other place as shall be designated by the
Administrative Agent to the Borrowers in writing.
"PBGC" shall mean the Pension Benefit Guaranty Corporation
established pursuant to Section 4002 of ERISA.
"Pension Plan" shall mean any "employee pension benefit
plan" as defined in Section 3(2) of ERISA which is covered by Title IV
of ERISA or subject to the minimum funding standards under Section 412
of ERISA (other than a Multiemployer Plan) and (i) which is maintained
or contributed to by any of the Credit Parties or any Person which is
an ERISA Affiliate of a Credit Party or (ii) with respect to which any
Credit Party retains any liability.
"Person" shall mean any individual, partnership, joint
venture, firm, corporation, limited liability company, association,
trust or other legal entity or any government or political subdivision
or any agency, department or instrumentality thereof.
"Pro Forma Basis" shall mean, with respect to any
calculation to determine compliance with any provision hereof on such
basis or to any financial statements to be prepared on such basis on
any date, such calculation being made or such financial statements
being prepared in accordance with GAAP as of the immediately preceding
fiscal quarter for which Financial Statements have been or should have
been delivered pursuant to Section 4.12(b) or 5.01(a), after giving
effect to the given transaction, all other Testable Events and
Incurrences and repayments of Indebtedness from the end of such fiscal
quarter to such date, as if such transaction, Testable Events,
Incurrences and repayments occurred on the first day of such fiscal
quarter (or for purposes of calculating Consolidated Cash Flow,
Consolidated Interest Expense, Combined Cash Flow and Combined
Interest Expense, on the first day of the four
<PAGE>
full fiscal quarter period ending with such fiscal quarter (the "Test
Period")).
In giving effect to the acquisition by any Borrower of an
Acquired Cable Business (or cable system thereof) in an Acquisition or
a Transfer or the acquisition by any Company of a Material Asset, if a
Test Period includes a period of time prior to the Acquisition or
receipt in a Transfer of such Acquired Cable Business by a Borrower or
the acquisition of such Material Asset by a Company, as the case may
be, the financial covenants shall be calculated on a combined basis
using the actual results of operations of such Acquired Cable Business
(or such cable system) prior to its Acquisition or Transfer or of such
Material Asset prior to its acquisition, as the case may be.
In the event that any Material Asset (including any Acquired
Cable Business) is sold, transferred or otherwise disposed of by any
Person or any consolidated Subsidiary of such Person during any Test
Period, Consolidated Cash Flow shall be adjusted to give effect to
such sale, transfer or other disposition by excluding from
Consolidated Cash Flow of such Person all Consolidated Cash Flow
derived from such Material Asset for that portion of such Test Period
occurring before the disposition of the Material Asset.
Any calculation pursuant to the foregoing shall be made in
good faith by the relevant Borrower and shall be set forth in an
Officers' Certificate promptly furnished to the Lenders showing such
calculation (and the methodology used) in reasonable detail (with
supporting schedules as to the results of operations of the assets
acquired or disposed of), which calculation and methodology shall be
reasonably satisfactory to the Administrative Agent.
"Pro Rata Share" shall mean, with respect to any Lender at
any time, the percentage obtained by dividing such Lender's Commitment
by the Total Commitment or, if the Total Commitment shall have been
terminated and Loans are outstanding, the percentage obtained by
dividing such Lender's Loans by the aggregate amount of all Loans
outstanding.
"Projected Financial Statements" shall have the meaning
provided in Section 4.12(b)(v).
"Rating Agency" shall mean each of Moody's and S&P.
<PAGE>
"Register" shall have the meaning provided in Section
9.04(d).
"Regulation D" shall mean Regulation D of the Board of
Governors of the Federal Reserve System as from time to time in effect
and any successor to all or a portion thereof establishing reserve
requirements.
"Regulation U" shall mean Regulation U of the Board of
Governors of the Federal Reserve System as from time to time in effect
and any successor to all or a portion thereof establishing margin
requirements.
"Remaining Period" shall have the meaning provided in
Section 2.15.
"Replaced Lender" shall have the meaning provided in Section
2.19(b).
"Replacement Lender" shall have the meaning provided in
Section 2.19(b).
"Reportable Event" shall mean an event described in Section
4043(b) of ERISA with respect to a Pension Plan as to which the 30-day
notice requirement has not been waived by the PBGC by regulation or by
written PBGC administrative pronouncement.
"Requesting Borrower" shall mean the Borrower requesting a
Loan or a conversion or a continuation of a Loan.
"Required Lenders" shall mean, at any time, (x) Lenders
having Commitments representing a majority of the Total Commitment or
(y) if the Total Commitment has been reduced to zero, Lenders holding
Loans and participations in Swingline Loans (but without duplication)
representing a majority of the outstanding principal amount of Loans.
"Restricted Material Subsidiary" is a Material Subsidiary
that is a Restricted Subsidiary.
"Restricted Payments" shall mean any of the following,
whether direct or indirect: (i) any dividend or other payment or
distribution on account of or with respect to any equity interest
(including, in the case of TWE, with respect to A, B, C or D
sub-accounts, senior sub-accounts, special sub-accounts or common
sub-accounts) in any Company (other than
<PAGE>
any Unrestricted Subsidiary), now or hereafter outstanding, except a
dividend payable solely in additional equity interests to the holders
of any class of equity interest, including payments by TWE under
Article VIII, XIII or XV of the TWE Partnership Agreement, (ii) any
redemption, retirement, sinking fund or similar payment, purchase or
other acquisition for value of any equity interest in any Company
(other than any Unrestricted Subsidiary) by such Company now or
hereafter outstanding, except any redemption, retirement, sinking fund
or similar payment payable solely in additional such equity interests
to the holders of that class of interest or rights in respect of such
class of interest (including, in the case of TWE, payments under
Article VIII, XIII or XV of the TWE Partnership Agreement), (iii) any
payment made to retire, or to obtain the surrender of, any outstanding
warrants, options or other rights to acquire additional such equity
interests of a Borrower or in the case of TWE any of its Subsidiaries
now or hereafter outstanding (including, in the case of TWE, payments
under Article VIII, XIII or XV of the TWE Partnership Agreement), (iv)
any payment, including as to principal or interest, on or with respect
to (including any forgiveness thereof) Convertible Intercompany Debt
(other than any payment by any Subsidiary of a Borrower to any Wholly
Owned Subsidiary of such Borrower or to such Borrower), (v)
Investments by any Company in any of its Affiliates other than a
Person that, after giving effect to such Investment, would be a
Restricted Subsidiary of such Company and (vi) payments to be made to
TWI or TWE upon exercise of options with respect to securities of TWI
by certain employees of TWE and TWEAN as contemplated by Section 17.7
of the TWE Partnership Agreement and Section 3.1 of the TWEAN
Partnership Agreement, but only to the extent that all such payments
made by TWE and TWEAN in the aggregate (but without duplication)
exceed $25,000,000 in any fiscal quarter; provided, however, that
Restricted Payments of a Borrower under clauses (i), (ii) and (iii)
shall not include pro rata distributions to all the shareholders or
equity holders of any Subsidiary of a Borrower that is not a Wholly
Owned Subsidiary of such Borrower. Notwithstanding the foregoing, so
long as no Default or Event of Default is continuing or would occur
after giving effect to such transaction, the following shall not
constitute a Restricted Payment: (a) payment of Management Fees in
accordance with the terms of the definition thereof, (b) payment of
Tax Distributions in accordance with the terms of the definition
thereof, (c) loans or payments from TWE in an aggregate amount not
greater than the actual amount contributed to TWE by USW, plus the
return thereon calculated in accordance with the terms of the TWE
Partnership Agreement and (d) cash
<PAGE>
distributions by TWE to the TWE Partners with respect to their B
Sub-Accounts pursuant to Section 8.4(f) of the TWE Partnership
Agreement but only up to $50,000,000 per annum, which cash
distributions shall be used only to fund the operations of certain
sister partnerships in accordance with the TWE Partnership Agreement.
"Restricted Subsidiaries" of any Borrower shall mean (i) all
Subsidiaries of such Borrower on the Effective Date that are not
designated as Unrestricted Subsidiaries by such Borrower on or prior
to the Effective Date and (ii) all Subsidiaries of such Borrower that
are created or acquired by such Borrower after the Effective Date and
(a) are not then designated as Unrestricted Subsidiaries by such
Borrower or (b) are then designated by such Borrower as Unrestricted
Subsidiaries but subsequently redesignated by such Borrower as
Restricted Subsidiaries.
"Revolving Loans" shall have the meaning provided in Section
2.01.
"Revolving Notes" shall mean the promissory notes of the
Borrowers issued pursuant to Section 2.11 substantially in the form of
Exhibit C-1, as the same may be modified, endorsed or amended from
time to time.
"S&P" shall mean Standard & Poor's Ratings Group.
"Sale Proceeds" shall mean all cash, Cash Equivalents and
the fair market value of all other consideration received in an Asset
Sale.
"SEC" shall mean the Securities and Exchange Commission.
"SEC Regulation D" shall mean Regulation D as promulgated
under the Securities Act.
"Securities Act" shall mean the Securities Act of 1933.
"Significant Asset Sale" shall mean any Asset Sale of assets
or group of related assets having an original cost or generating Sale
Proceeds of at least $25,000,000; provided, however, that the exchange
of assets constituting a Cable Business or portion thereof by TWI
Cable or any of its Subsidiaries for assets constituting a Cable
Business or portion thereof
<PAGE>
owned by a Person other than TWI Cable or any of its Subsidiaries
shall not be deemed a Significant Asset Sale; provided, further,
however, that if such exchange includes the receipt of Sale Proceeds
(other than Sale Proceeds consisting of a Cable Business) of at least
$25,000,000, such exchange shall be treated as a Significant Asset
Sale to the extent of such Sale Proceeds.
"Six Flags" shall mean Six Flags Entertainment Corporation,
a Delaware corporation.
"Six Flags Contingent Obligations" shall mean the Contingent
Obligations of TWE related to the Zero Coupon Senior Notes due 1999 of
Six Flags (it being understood that Contingent Obligations shall
include the accretion on such outstanding notes in accordance with
their terms).
"Specified Holders" shall mean WCI, Advance, Newhouse and
Advance/Newhouse.
"Subsidiary" of any Person shall mean and include (a) (i)
any corporation more than 50% of whose Capital Stock of any class or
classes having by the terms thereof ordinary voting power to elect a
majority of the directors of such corporation (irrespective of whether
or not at the time stock of any class or classes of such corporation
shall have or might have voting power by reason of the happening of
any contingency) is at the time owned by such Person directly or
indirectly through Subsidiaries and (ii) any partnership, association,
joint venture or other entity in which such Person directly or
indirectly through Subsidiaries has more than a 50% equity interest at
the time, (b) with respect to TWI Cable, Paragon so long as Paragon
shall be consolidated with TWI Cable pursuant to Section 9.15(c)(iii),
(c) with respect to TWE, any Person who owns any TWE Beneficial Assets
or any Guarantor that owns a Subsidiary that owns TWE Beneficial
Assets, to the extent set forth in, and subject to the terms of,
Section 9.15(a) (provided that WCI shall not be deemed a Subsidiary of
TWE) or (d) with respect to TWEAN, any Person who owns any TWEAN
Beneficial Assets (provided that none of the Specified Holders, TWE or
any TWE Partner shall be deemed a Subsidiary of TWEAN).
"Subsidiary Guarantee" shall mean (x) a guarantee by a
Subsidiary Guarantor of the Obligations of the Borrower that is its
most immediate direct or indirect parent or (y) a guarantee by a
holder of TWEAN Material Beneficial Assets, substantially in the form
of Exhibit G-1.
<PAGE>
"Subsidiary Guarantor" shall mean a Subsidiary of any
Borrower or a holder of TWEAN Material Beneficial Assets that is
required to execute and deliver a Subsidiary Guarantee pursuant to
Section 3.01(i), 3.02(e), 3.03(h) or 5.12.
"Summit" shall mean Summit Communications Group, Inc., a
Delaware corporation, and its Subsidiaries.
"Summit Acquisition shall mean the acquisition of Summit by
a Wholly Owned Subsidiary of TWI pursuant to the Summit Acquisition
Documents.
"Summit Acquisition Commitment" shall have the meaning
provided in Section 2.01(b).
"Summit Acquisition Documents" shall mean the documents
identified as such on Schedule A.
"Summit Assumed Indebtedness" shall mean the Indebtedness of
Summit which is to be outstanding at the time of the Summit
Acquisition, as set forth on Schedule 4.05.
"Summit Indenture" shall mean the Indenture dated as of
April 15, 1993 between Summit Communications Group, Inc. and Shawmut
Bank Connecticut, National Association, as Trustee.
"Swingline Loan" shall have the meaning provided in Section
2.02.
"Swingline Loan Commitment" shall mean $50,000,000.
"Swingline Maturity Date" shall mean the date which is five
Business Days prior to the Final Maturity Date.
"Swingline Notes" shall mean the promissory note of TWE
issued pursuant to Section 2.11 in substantially the form of Exhibit
C-2, as the same may be modified, endorsed or amended from time to
time.
"Tax Distributions" shall mean, with respect to any period,
distributions made (x) to TWE Partners by TWE on or with respect to
income and other taxes under the TWE Partnership Agreement or (y) to
TWEAN Partners by TWEAN on or with respect to income and other taxes
under the TWEAN Partnership Agreement, in each case, which
distributions are calculated in accordance with, and made no earlier
than as required by, the terms of the applicable agreement.
<PAGE>
"Taxes" shall have the meaning provided in Section 2.18(a).
"Test Period" shall have the meaning provided in the
definition of "Pro Forma Basis."
"Testable Event" shall mean, with respect to any Borrower,
(i) the Incurrence of Indebtedness by such Borrower or any of its
Subsidiaries in excess of $250,000,000, (ii) any Acquisition by such
Borrower, (iii) any Transfer by or to such Borrower, (iv) any
Restricted Payment by such Borrower or any of its Subsidiaries in
excess of $50,000,000, $25,000,000 or $25,000,000 in the case of TWE,
TWEAN or TWI Cable, respectively, or (v) any acquisition or
disposition (or series of related acquisitions or dispositions) by
such Borrower or any of its Subsidiaries of a Material Asset.
"Total Commitment" shall mean, at any date of determination,
the sum of the Commitments then in effect of each of the Lenders and
shall initially equal $8,300,000,000.
"Total Unutilized Commitment" means, at any time, the excess
of the Total Commitment then in effect over the Total Utilized
Commitment at such time.
"Total Utilized Commitment" shall mean, at any time, the sum
of (i) the aggregate principal amount of Revolving Loans then
outstanding and (ii) the aggregate principal amount of Swingline Loans
then outstanding.
"Transaction Documents" shall mean the Acquisition Documents
and the Transfer Documents.
"Transfer" shall mean the transfer to TWE or TWEAN (in any
such case, the "Transferee Borrower") by TWI Cable or any of its
Subsidiaries of one or more Acquired Cable Businesses (or one or more
cable systems comprising parts thereof), together with the portion of
the then outstanding Loans (the "Allocated Loans") of TWI Cable
allocated to the Applicable Acquired Cable Business or applicable
cable system, as the case may be.
"Transfer Documents" shall mean, with respect to any
Transfer, the documents, agreements and instruments relating to, or
delivered in connection with, such Transfer.
<PAGE>
"Transferee" shall have the meaning provided in Section
2.18(a).
"Transferee Borrower" shall have the meaning provided in the
definition of "Transfer."
"TWE" shall have the meaning provided in the first paragraph
hereof.
"TWE Beneficial Asset" shall have the meaning given to the
term "Beneficial Asset" in the TWE Partnership Agreement.
"TWE Guarantee" shall mean a limited recourse guarantee by
TWE of the Obligations of TWEAN, substantially in the form of Exhibit
G-5.
"TWE Material Beneficial Asset" shall mean any TWE
Beneficial Asset that is (i) a cable franchise and related assets that
together have a book or fair market value of greater than $25,000,000
or (ii) any other asset (including Capital Stock), related group of
assets, business or division of TWI or any of its Subsidiaries (other
than TWE and its Subsidiaries) that (x) for the most recently ended
fiscal year of TWE accounted for more than 1% of the Consolidated Cash
Flow of TWE and its Subsidiaries taken as a whole for such period or
(y) has a book or fair market value of greater than $25,000,000.
"TWE Partner" shall mean each Person who shall from time to
time be admitted as a partner of TWE in accordance with the terms
hereof and the TWE Partnership Agreement.
"TWE Partner Guarantee" shall mean a guarantee by a TWE
Partner Guarantor of the obligations of TWE hereunder, substantially
in the form of Exhibit G-2.
"TWE Partner Guarantor" shall mean each TWE Partner listed
in Schedule 3.01.
"TWE Partnership Agreement" shall mean the Agreement of
Limited Partnership of TWE dated as of October 29, 1991 by and among
TWI, Itochu Corporation, a Japanese corporation, Toshiba Corporation,
a Japanese corporation, USW and certain of their respective
subsidiaries.
<PAGE>
"TWE Partnership Interest" shall have the meaning given to
the term "Partnership Interest" in the TWE Partnership Agreement.
"TWE Systems" shall have the meaning provided in the TWEAN
Contribution Agreement.
"TWEAN" shall have the meaning provided in the first
paragraph hereof.
"TWEAN Beneficial Asset" shall have the meaning given to the
term "Beneficial Asset" in the TWEAN Contribution Agreement.
"TWEAN Contribution Agreement" shall mean the Contribution
Agreement dated as of September 9, 1994 by and among TWE, Advance,
Newhouse and Advance/Newhouse.
"TWEAN Material Beneficial Asset" shall mean any TWEAN
Beneficial Asset that is (i) a cable franchise and related assets that
together have a book or fair market value of greater than $25,000,000
or (ii) any other asset (including Capital Stock), related group of
assets, business or division of TWE, Advance/Newhouse or any of their
Subsidiaries (other than TWEAN and its Subsidiaries) that (x) for the
most recently ended fiscal year of TWE or Advance/Newhouse, as the
case may be, would have accounted for more than 1% of the Pro Forma
Consolidated Cash Flow of TWEAN and its Subsidiaries taken as a whole
for such period (determined on a Pro Forma Basis after giving effect
to the acquisition of such TWEAN Beneficial Asset) or (y) has a book
or fair market value of greater than $25,000,000.
"TWEAN Partner" shall mean TWE, Advance/Newhouse and each
other Person who shall from time to time be admitted as a partner of
TWEAN in accordance with the terms hereof and the TWEAN Partnership
Agreement.
"TWEAN Partnership Agreement" shall mean the Partnership
Agreement dated as of September 9, 1994 by and between
Advance/Newhouse and TWE.
"TWEAN Partnership Interest" shall have the meaning given to
the term "Partnership Interest" in the TWEAN Partnership Agreement.
<PAGE>
"TWI" shall mean Time Warner Inc., a Delaware corporation.
"TWI Cable" shall mean the Person defined as such in the
first paragraph hereof, and from and after the closing of the CVI
Acquisition, the Person currently known as Cablevision Industries
Corporation, which shall assume, on terms satisfactory to the
Administrative Agent, all of such Person's rights, obligations and
liabilities under the Credit Documents.
"TWI Material Adverse Effect" shall mean a material adverse
effect on the condition (financial or other), business, results of
operations, properties or liabilities of TWI and its Subsidiaries
taken as a whole.
"Two Thirds Lenders" shall mean, at any time, (x) Lenders
having Commitments representing at least two-thirds of the Total
Commitment or (y) if the Total Commitment has been reduced to zero,
Lenders holding Loans and participations in Swingline Loans (but
without duplication) representing at least two-thirds of the
outstanding principal amount of Loans.
"Type", when used in respect of any Revolving Loan or
Borrowing, shall refer to the Rate by reference to which interest on
such Loan or on the Loans comprising such Borrowing is determined. For
purposes hereof, "Rate" shall include the Eurodollar Rate and the Base
Rate.
"Unfunded Current Liability" shall mean, with respect to any
Pension Plan, at any time, the amount (if any) by which (i) the
present value (using the actuarial assumptions utilized for financial
reporting purposes in accordance with GAAP) of all benefit liabilities
(within the meaning of Section 4001(a)(16) of ERISA) under such
Pension Plan exceeds (ii) the fair market value of the assets of such
Pension Plan, all determined as of the then most recent valuation date
for such Pension Plan.
"Unrestricted Subsidiary" of any Borrower shall mean a
Subsidiary of such Borrower that is not a Restricted Subsidiary;
provided, however, that any Subsidiary that is a "Material
Subsidiary," as that term is defined under the Indenture dated as of
April 30, 1992 among TWI, TWE, the TWE Partners signatory thereto and
The Bank of New York, as trustee, shall not at any time be an
Unrestricted Subsidiary.
<PAGE>
"U.S. Dollars" shall mean dollars in lawful currency of the
United States of America.
"USW" shall mean U S WEST, Inc., a Colorado corporation.
"WCI" shall mean Warner Communications Inc., a Delaware
corporation.
"Wholly Owned Restricted Subsidiary" of any Person shall
mean a Wholly Owned Subsidiary of such Person that is a Restricted
Subsidiary of such Person.
"Wholly Owned Subsidiary" of any Person shall mean any
Subsidiary of such Person to the extent all of the capital stock or
other ownership interests in such Subsidiary, other than directors' or
nominees' qualifying shares, are owned by such Person and its
Subsidiaries.
"written" or "in writing" shall mean any form of written
communication or a communication by means of telex, telecopier device,
telegraph or cable.
SECTION 1.02. Terms Generally. (a) The definitions in
Section 1.01 shall apply equally to both the singular and plural forms
of the terms defined. Whenever the context may require, any pronoun
shall include the corresponding masculine, feminine and neuter forms.
The words "include," "includes" and "including" shall be deemed to be
followed by the phrase "without limitation."
(b) Unless the context shall otherwise require, all
references herein to (i) Articles, Sections, Exhibits and Schedules
shall be deemed references to Articles and Sections of, and Exhibits
and Schedules to, this Agreement, (ii) Persons include their
respective permitted successors and assigns or, in the case of
governmental Persons, Persons succeeding to the relevant functions of
such Persons, (iii) agreements and other contractual instruments
include subsequent amendments, assignments, and other modifications
thereto to the date hereof and thereafter, but in the case of any
amendment, assignment or modification after the date hereof, only to
the extent such amendments, assignments or other modifications thereto
are not prohibited by their terms or the terms of any Credit Document,
(iv) statutes and related regulations include any amendments of same
and any successor statutes and regulations, and (v) time shall be
deemed to be to New York City time.
<PAGE>
SECTION 1.03. Accounting Terms; Calculations. Except as
otherwise expressly provided herein, all terms of an accounting or
financial nature shall be construed in accordance with GAAP, as in
effect from time to time, and calculations shall be made in accordance
with Section 9.15.
ARTICLE II
LOANS
SECTION 2.01. Commitments; Borrowing Caps. (a) Subject to
the terms and conditions set forth herein and relying upon each of the
representations and warranties of each of the Borrowers and the other
Credit Parties set forth in each of the Credit Documents, each Lender
agrees, severally and not jointly, to make revolving loans ("Revolving
Loans") to the Borrowers, at any time and from time to time on and
after the Closing Date and until the earlier of the Commitment
Termination Date and the termination of the Commitment of such Lender,
in an aggregate principal amount at any time outstanding not to exceed
(after giving effect to all Loans made or repaid) an amount equal to
(x) such Lender's Commitment minus (y) such Lender's Pro Rata Share
(based upon its Commitment) of the Swingline Loans then outstanding;
provided, however, that (i) the aggregate amount of Revolving Loans
outstanding to any one Borrower shall at no time exceed its Borrowing
Cap (after giving effect to all Loans made or repaid); (ii) the
aggregate amount of Revolving Loans at any time outstanding to TWI
Cable and TWEAN (after giving effect to all Loans made or repaid)
shall not at any time exceed $5,000,000,000; and (iii) the aggregate
amount of Revolving Loans outstanding to TWE (after giving effect to
all Loans made or repaid) shall not exceed an amount equal to the
Borrowing Cap of TWE minus all Swingline Loans then outstanding (after
giving effect to all Swingline Loans made or repaid).
(b) Notwithstanding anything to the contrary herein, of the
Total Commitment, approximately:
(i) $983,000,000 shall be used only at the time of the CVI
Acquisition, to repay a portion of the CVI Assumed Indebtedness
(plus any make-whole and other premiums relating thereto) and to
pay related fees and expenses;
(ii) $420,000,000 shall be used only at the time of the
Gerry Acquisition, to repay the Gerry Assumed Indebtedness (plus
any make-whole and other premiums relating
<PAGE>
thereto), to pay approximately $200,000,000 (subject to adjustment in
accordance with the Gerry Acquisition Documents) in cash as partial
consideration in the Gerry Acquisition and to pay related fees and
expenses;
(iii) $1,358,000,000 shall be used only at the time of the
KBLCOM Acquisition, to repay the KBLCOM Assumed Indebtedness
(plus any make-whole and other premiums relating thereto) and to
pay related fees and expenses; and
(iv) $140,000,000 (the "Summit Acquisition Commitment")
shall be used only to repay the Summit Assumed Indebtedness
(plus any make-whole and other premiums relating thereto) and to
pay related fees and expenses or, if the Summit Assumed
Indebtedness shall have been repaid prior to the Closing Date,
to refinance the indebtedness incurred to so repay the Summit
Assumed Indebtedness; provided, however, that in the event that
any of the holders of the Summit Assumed Indebtedness shall not,
before the Repurchase Date (as defined in the Summit Indenture),
require the issuer thereof (or its successor) to repurchase all
or a portion of the Summit Assumed Indebtedness (the "Expired
Put Indebtedness"), the Summit Acquisition Commitment (but not
the Total Commitment) shall be reduced by an amount equal to the
principal amount of the Expired Put Indebtedness.
(c) The Borrowers may borrow, repay and reborrow Loans
hereunder (including the Loans referred to in clauses (i) through (iv)
above) subject to the terms and conditions set forth herein.
SECTION 2.02. Swingline Loans. (a) Subject to and upon the
terms and conditions set forth herein and in reliance upon the
representations and warranties of each of the Borrowers and the other
Credit Parties set forth in each of the Credit Documents, upon receipt
of a telephone request therefor from TWE no later than 10:00 A.M. on
the proposed borrowing date (which request shall be confirmed in
writing by delivery to the Administrative Agent within three Business
Days thereafter of a Notice of Borrowing, which shall contain the
information, to the extent applicable, set forth in Section 2.04; it
being understood that such Notice of Borrowing shall constitute a
representation and warranty by TWE that, at the time of delivery of
such Notice of Borrowing and at the time of the telephonic request to
which such Notice of Borrowing relates,
<PAGE>
all of the conditions contained in Section 3.04 have been satisfied),
the Administrative Agent shall make swingline loans (the "Swingline
Loans") to TWE, at any time and from time to time after the Closing
Date and until the Business Day next preceding the Swingline Maturity
Date, in an aggregate principal amount at any time outstanding not to
exceed the lesser of (x) the Swingline Loan Commitment and (y) the
excess, if any, of the Total Commitment over the aggregate principal
amount of Revolving Loans then outstanding.
(b) Notwithstanding paragraph (a), the Administrative Agent
(i) shall not be required to make or to continue to make Swingline
Loans if it shall have notified TWE of the unavailability (for any or
no reason, in the Administrative Agent's sole discretion) of Swingline
Loans hereunder at least three Business Days prior to the date on
which TWE shall have made its telephonic request therefor, which
notice shall remain effective until rescinded by the Administrative
Agent, and (ii) shall not make any Swingline Loan at any time if the
Administrative Agent shall have received written notice from the
Required Lenders or any Borrower on or before the Business Day
immediately preceding the date of the proposed Swingline Loan that a
Default or Event of Default has occurred and is continuing and such
notice has not been rescinded.
(c) All Swingline Loans shall be payable on demand with
accrued interest thereon, and shall otherwise be subject to all the
terms and conditions applicable to Revolving Loans, including the
voluntary and mandatory prepayment terms of Section 2.10; provided,
however, that (i) any prepayment of Swingline Loans may be made
without notice in a minimum amount of $5,000,000 and in increments of
$1,000,000 in excess of such amount, (ii) all principal and interest
on Swingline Loans shall be payable solely, and directly, to the
Administrative Agent within the time period specified in Section 2.12,
subject to each Lender's participation interest therein as provided by
paragraph (d) below, and (iii) Swingline Loans shall bear interest at
the rate per annum for Base Rate Loans under Section 2.07(a).
(d) Upon demand, from time to time, by the Administrative
Agent, TWE shall promptly borrow Revolving Loans pursuant to the terms
hereof and apply the proceeds of such Revolving Loans to the repayment
of all Swingline Loans then outstanding, plus accrued and unpaid
interest, but in no event later than the earlier to occur of (x) the
date of Borrowing of a Revolving Loan hereunder and (y) a bi-weekly
settlement date
<PAGE>
specified in writing by the Administrative Agent to TWE. In the event
that TWE shall fail to so repay any Swingline Loan plus accrued and
unpaid interest within three Business Days after demand therefor by
the Administrative Agent, and in any event upon (i) request by the
Administrative Agent, and (ii) the acceleration of any Loan or the
termination of any Lender's obligation to make Loans pursuant to
Article VII or the occurrence of any Event of Default under Article
VII, each Lender shall be deemed to have irrevocably and
unconditionally purchased directly from the Administrative Agent,
without recourse or warranty, an undivided interest and participation
in such Swingline Loan equal to the amount such other Lender's Pro
Rata Share thereof would have been if such Swingline Loan were a
Revolving Loan by paying the proceeds thereof plus accrued and unpaid
interest to the Administrative Agent in New York, New York, in
immediately available funds in U.S. Dollars. Such other Lenders'
obligations under this Section 2.02(d) shall be absolute and
unconditional and shall not be affected by any circumstance
whatsoever, including (A) failure of the conditions precedent set
forth in Section 3.04 to have been satisfied, (B) termination of the
Total Commitment, (C) the occurrence of a Default or Event of Default
or (D) the acceleration of the Loans. If such amount is not in fact
made available to the Administrative Agent by any Lender, the
Administrative Agent shall be entitled to recover such amount on
demand from such Lender together with accrued interest thereon for
each day from the date of demand therefor, if made prior to 11:00 A.M.
on any Business Day, or, if made at any other time, from the next
Business Day following the date of such demand, until the date such
amount is paid to the Administrative Agent by such Lender at the
Federal Funds Effective Rate for three Business Days and thereafter at
the rate per annum for Base Rate Loans under Section 2.07(a). If such
Lender does not pay such amount forthwith upon the Administrative
Agent's demand therefor, and until such time as such Lender makes the
required payment, the Administrative Agent shall be deemed to continue
to have outstanding Swingline Loans in the amount of such unpaid
participation obligation for all purposes of the Credit Documents
other than those provisions requiring the other Lenders to purchase a
participation therein.
SECTION 2.03. Minimum Amount of Each Borrowing; Maximum
Number of Borrowings. The Revolving Loans comprising any one Borrowing
shall be in an aggregate principal amount which is an integral
multiple of $1,000,000 and not less than the Minimum Borrowing Amount
(or an aggregate principal amount equal to the Total Unutilized
Commitment or for any Borrower,
<PAGE>
such Borrower's Available Borrowing Cap). No Borrower shall make more
than three Borrowings during any calendar week, except for mandatory
Borrowings hereunder and except to the extent necessary to repay
maturing commercial paper. The Borrowers shall not have, in the
aggregate, more than twenty (20) Eurodollar Borrowings outstanding at
any time under this Agreement.
SECTION 2.04. Notice of Borrowings. Subject to Article III,
whenever any Borrower desires to incur Revolving Loans, such Borrower
shall deliver a Notice of Borrowing to the Administrative Agent prior
to 10:00 a.m. on the date that is (x) in the case of a Eurodollar
Borrowing at least three Business Days prior to the date of such
proposed Borrowing and (y) in the case of a Base Rate Borrowing, at
least one Business Day prior to the date of such proposed Borrowing.
Each such Notice of Borrowing shall be irrevocable upon delivery and
shall specify (i) the aggregate principal amount of the Loans to be
made pursuant to such Borrowing, (ii) the proposed date of Borrowing
(which shall be a Business Day) and (iii) the Type of Borrowing and,
if Eurodollar Loans, the Interest Period to be initially applicable
thereto, which shall not end after the Final Maturity Date. If such
notice does not specify the Type of Borrowing requested, the
Requesting Borrower shall be deemed to have elected a Base Rate
Borrowing. The Administrative Agent shall as promptly as practicable
advise the Lenders of the proposed Borrowing or each proposed
Borrowing, as the case may be, and of such Lender's Pro Rata Share
thereof.
SECTION 2.05. Disbursement of Funds. (a) Each Lender shall
make available each Revolving Loan to be made by it hereunder on the
proposed borrowing date thereof by wire transfer of immediately
available funds to the Administrative Agent in New York, New York, not
later than 12:00 noon on such date, and the Administrative Agent shall
by 2:00 p.m. on such date credit the amounts so received to the
account or accounts specified from time to time in one or more notices
delivered by the Requesting Borrower to the Administrative Agent. If a
Borrowing shall not occur on such date because any condition precedent
herein specified shall not have been met, the amounts so received
shall be returned to the respective Lenders by the close of business
on the next Business Day. Unless the Administrative Agent shall have
received notice from a Lender prior to the date of any Borrowing that
such Lender will not make available to the Administrative Agent such
Lender's portion of such Borrowing, the Administrative Agent may
assume that such Lender has made such portion available to the
Administrative
<PAGE>
Agent on the date of such Borrowing in accordance with this Section
2.05(a), and the Administrative Agent may, in reliance upon such
assumption, make available to the Requesting Borrower on such date a
corresponding amount. If and to the extent that such Lender shall not
have made such portion available to the Administrative Agent, such
Lender and the Requesting Borrower severally agree to repay to the
Administrative Agent forthwith on demand such corresponding amount
together with interest thereon, for each day from the date such amount
is made available to the Requesting Borrower until the date such
amount is repaid to the Administrative Agent at (i) in the case of the
Requesting Borrower, the interest rate applicable at the time to the
Loans comprising such Borrowing and (ii) in the case of such Lender,
the Federal Funds Effective Rate. If such Lender shall repay to the
Administrative Agent such corresponding amount, such amount shall
constitute such Lender's Loan as part of such Borrowing for purposes
of this Agreement.
(b) Subject to the satisfaction of the conditions set forth
in Section 3.04, all Swingline Loans shall be made available to TWE by
the Administrative Agent not later than 1:00 p.m. on the date
requested.
(c) Nothing herein shall be deemed to relieve any Lender
from its obligation to fulfill its commitments hereunder or to
prejudice any rights which any Borrower may have against any Lender as
a result of any default by such Lender hereunder. It is understood
that no Lender shall be responsible for any default by any other
Lender in its obligation to make Loans hereunder and that each Lender
shall be obligated to make the Loans provided to be made by it
hereunder, regardless of the failure of any other Lender to fulfill
its commitments hereunder.
SECTION 2.06. Conversion and Continuation of Revolving
Loans. Each Borrower shall have the right at any time and from time to
time upon delivery of a Notice of Conversion/Continuation to the
Administrative Agent (x) not later than 10:30 a.m., on the day of the
conversion, to convert all or any part of any of its Eurodollar
Borrowings into a Base Rate Borrowing by it, and (y) not later than
10:30 a.m., three Business Days prior to conversion or continuation,
to convert any of its Base Rate Borrowings into a Eurodollar Borrowing
by it or to continue any of its Eurodollar Borrowings as a Eurodollar
Borrowing by it for an additional Interest Period, subject in each
case to the following:
<PAGE>
(a) if less than all the outstanding principal amount of
any Borrowing shall be converted or continued, the aggregate
principal amount of the Borrowing converted or continued shall
be an integral multiple of $1,000,000 and not less than the
Minimum Borrowing Amount;
(b) accrued interest on a Borrowing (or portion
thereof) being converted shall be paid by the Requesting
Borrower at the time of conversion;
(c) if any Eurodollar Borrowing is converted at a time
other than the end of the Interest Period applicable thereto,
the Requesting Borrower shall pay, upon demand, any amounts due
to the Lenders pursuant to, and determined in accordance with,
Section 2.15; and
(d) no Interest Period may be selected for any Eurodollar
Borrowing that would end later than the Final Maturity Date.
Each notice pursuant to this Section 2.06 shall be
irrevocable and shall refer to this Agreement and specify (i) the
identity and amount of the Borrowing (or portion thereof) to be
converted or continued, (ii) whether such Borrowing (or portion
thereof) is to be converted to or continued as a Eurodollar Borrowing
or a Base Rate Borrowing, (iii) if such notice requests a conversion,
the date of such conversion (which shall be a Business Day) and (iv)
if such Borrowing is to be converted to or continued as a Eurodollar
Borrowing, the Interest Period with respect thereto. If no notice
shall have been given in accordance with this Section 2.06 to convert
or continue any Borrowing, such Borrowing shall, at the end of the
Interest Period applicable thereto (unless repaid pursuant to the
terms hereof), automatically be continued as or converted to a Base
Rate Borrowing.
SECTION 2.07. Interest. (a) The unpaid principal amount of
each (i) Base Rate Loan shall bear interest at a rate per annum which
shall at all times be equal to the Base Rate in effect from time to
time and (ii) Eurodollar Loan shall bear interest at a rate per annum
which shall at all times be equal to the applicable Adjusted
Eurodollar Rate plus the Applicable Margin for the relevant Borrower
for such Eurodollar Loan in effect from time to time.
(b) If any Borrower shall default in the payment of the
principal of or interest on any Loan or any other amount
<PAGE>
due hereunder, whether by scheduled maturity, notice of prepayment,
acceleration or otherwise, such Borrower shall on demand from time to
time from the Administrative Agent pay interest, to the extent
permitted by law, on such defaulted amount up to (but not including)
the date of actual payment (after as well as before judgment) at a
rate per annum equal to (i) in the case of principal or interest on
any Loan, the higher of (x) the Base Rate then in effect from time to
time plus 2% and (y) the interest rate otherwise payable on such Loan
(i.e., without giving effect to this Section 2.07(b)) plus 2% and (ii)
in the case of all other amounts, the Base Rate then in effect from
time to time plus 2%.
(c) Interest on each Loan shall be payable in arrears on
each Interest Payment Date applicable to such Loan except as otherwise
provided herein. The applicable Eurodollar Rate and Base Rate for each
Interest Period or any day within an Interest Period, as the case may
be, shall be determined by the Administrative Agent, and such
determination shall be conclusive absent manifest error. The
Administrative Agent shall as promptly as practicable advise each
Borrower and each Lender, as appropriate, of such determination.
(d) All computations of interest on Eurodollar Loans shall
be based on the actual number of days elapsed over a year of 360 days.
All computations of interest on Base Rate Loans shall be based on the
actual number of days elapsed over a year of 365(366) days.
SECTION 2.08. Fees.
(a) Commitment Fees. The Borrowers, jointly and severally,
shall pay to the Administrative Agent for the ratable account of the
Lenders, on each March 31, June 30, September 30, and December 31 and
on the Final Maturity Date, an aggregate commitment fee (the
"Commitment Fee") equal to the Applicable Fee Percentage of each
Borrower on the daily average amount of each Borrower's Availability.
The Commitment Fee shall begin to accrue on and after the Closing Date
and shall cease to accrue on the earlier of the Final Maturity Date
and the date on which the Total Commitment shall have been terminated
in full.
(b) Facility Fee. TWI Cable shall pay to the Administrative
Agent for the ratable account of the Lenders, on the Closing Date and
on each anniversary of the Closing Date, a fee (the "Facility Fee")
equal to 0.1875% of TWI Cable's Borrowing
<PAGE>
Cap in effect (whether or not any portion thereof is then
unavailable); provided, however, that no Facility Fee shall be payable
on any such anniversary if the Leverage Ratio of TWI Cable as of such
anniversary, determined on a Pro Forma Basis, does not exceed 5.5:1.0.
(c) Other Fees. The Borrowers shall pay, jointly and
severally, directly to the Administrative Agent for the account of
each other Lender or for the account of the Administrative Agent, as
the case may be, the fees specified in the accepted commitment letters
or related fee letters, in respect of this Agreement and the other
Credit Documents, executed by such Administrative Agent or such other
Lenders, as the case may be, at such time or times and in such amount
or amounts as are specified in any such accepted commitment letter
(including said term sheet) or related fee letter.
(d) Computation of Fees. All computations of Fees shall be
based on the actual number of days elapsed over a year of 365(366)
days.
(e) Fees Non-Refundable. Once paid, none of the Fees shall
be refundable under any circumstances. No Fees shall be creditable
against any obligations owing from any Lender to any Borrower.
SECTION 2.09. Reduction of Borrowing Caps and Commitments.
(a) Voluntary. (i) Upon at least three Business Days' prior
irrevocable written or telecopy notice to the Administrative Agent,
the Borrowers may, at any time, permanently terminate the Total
Commitment, or from time to time permanently reduce the Total
Commitment in part; provided, however, that each partial reduction of
the Total Commitment shall be in an integral multiple of $1,000,000
and in a minimum principal amount of the Minimum Borrowing Amount.
Each reduction of the Total Commitment shall be made ratably among the
Lenders in accordance with their respective Commitments.
(ii) Upon at least three Business Days' prior irrevocable
written or telecopy notice to the Administrative Agent, any Borrower
may, at any time or from time to time, permanently reduce its
Borrowing Cap, in whole or in part; provided, however, that each
partial reduction of a Borrowing Cap shall be in an integral multiple
of $1,000,000 and in a minimum principal amount of the Minimum
Borrowing Amount.
<PAGE>
(b) Mandatory. (i) The Total Commitment shall be
automatically terminated on the Commitment Termination Date; provided,
however, if the Closing Date has not occurred on or before the
Expiration Date, the Total Commitment shall be automatically
terminated on the Expiration Date.
(ii) The Borrowing Cap of TWI Cable shall be permanently
reduced upon (x) any Significant Asset Sale but only to the extent
provided in Section 2.10(b)(iii) and (y) any Assumption, in an amount
equal to the aggregate principal amount of the Allocated Loans.
SECTION 2.10. Prepayments.
(a) Voluntary Prepayments. Any Borrower may, at any time and
from time to time, prepay any Borrowing or any Swingline Loan, in
whole or in part, by giving written or telecopy notice (or telephone
notice promptly confirmed by written or telecopy notice) to the
Administrative Agent (i) before 12:00 noon on the date that is at
least three Business Days prior to the proposed date of prepayment, in
the case of Eurodollar Loans and (ii) before 12:00 noon on the date
that is at least one Business Day prior to the proposed date of
prepayment, in the case of Base Rate Loans; provided, however, that
each partial prepayment shall be in an amount which is an integral
multiple of $1,000,000 and not less than the Minimum Borrowing Amount
in the case of Revolving Loans and $1,000,000 in the case of Swingline
Loans; provided, further, however, that no partial prepayment of any
Eurodollar Borrowing shall reduce such Borrowing to less than the
Minimum Borrowing Amount.
(b) Mandatory Prepayments. (i) On any date on which the
aggregate amount of Loans outstanding (after giving effect to any
other repayments or prepayments and any reduction of Commitments or
Borrowing Caps occurring on such date) to (A) any Borrower exceeds
such Borrower's Borrowing Cap, such Borrower shall repay Loans to such
Borrower in the amount of such excess, (B) TWI Cable and TWEAN,
collectively, exceeds $5,000,000,000, TWI Cable and/or TWEAN shall
repay Loans in the aggregate amount of such excess or (C) the
Borrowers, collectively, exceeds the Total Commitment, one or more of
the Borrowers (as determined by the Borrowers) shall repay Loans in
the aggregate amount of such excess.
(ii) Notwithstanding anything to the contrary in Section
2.10(a)(i) or Section 2.11(a)(y), all of the Loans outstanding
hereunder shall be repaid (x) on the date that the
<PAGE>
Total Commitment is terminated in accordance with Section 2.09 or (y)
if the Total Commitment shall terminate on the Commitment Termination
Date, on the Final Maturity Date.
(iii) In the event that a Significant Asset Sale shall occur
at any time that the Leverage Ratio of TWI Cable, determined on a Pro
Forma Basis, equals or exceeds 5.5:1.0, (A) TWI Cable shall repay its
Loans and (B) the Borrowing Cap of TWI Cable shall be permanently
reduced, in each case, in an amount equal to 75% of the Net Proceeds
received from such Significant Asset Sale. The applicable portion of
the Net Proceeds of any Significant Asset Sale shall be applied to the
prepayment of the outstanding principal amount of Loans within 90 days
after receipt of the Sale Proceeds of such Significant Asset Sale.
(c) Any prepayment by TWE under this Section 2.10 shall be
applied first toward outstanding Swingline Loans, to the extent
thereof.
(d) Each notice of prepayment shall specify the prepayment
date and the principal amount of each Borrowing (or portion thereof)
to be prepaid, shall be irrevocable and shall commit the Borrower to
prepay such Borrowing (or portion thereof) by the amount stated
therein on the date stated therein. All prepayments under this Section
2.10 shall be subject to Section 2.15 but otherwise without premium or
penalty. All prepayments under this Section 2.10 shall be accompanied
by accrued interest on the principal amount being prepaid to the date
of payment.
SECTION 2.11. Repayment of Loans; Notes. (a) Each Borrower
hereby agrees that the outstanding principal balance of each Loan,
plus accrued and unpaid interest thereon, and all other outstanding
Obligations hereunder shall be payable on the earlier of (x) the Final
Maturity Date and (y) the time the Total Commitment is terminated
(except if the Total Commitment is terminated on the Commitment
Termination Date) or reduced to $0.
(b) Each Borrower shall execute and deliver to each Lender
(or to the Administrative Agent on behalf of each Lender) a Revolving
Note to evidence such Lender's Revolving Loans in the principal amount
of such Borrower's initial Borrowing Cap and with other appropriate
insertions.
(c) TWE shall execute and deliver to the Administrative
Agent a Swingline Note to evidence the Administrative
<PAGE>
Agent's Swingline Loans in the principal amount of the
Swingline Loan Commitment and with other appropriate insertions.
(d) Each Lender agrees that before disposing of any Note
held by it, or any part thereof (other than by granting participations
therein), it will endeavor to make a notation thereon of all Loans and
principal payments previously made thereon and of the date to which
interest thereon has been paid; provided, however, that the failure to
make (or any error in the making of) a notation of any Loan made under
such Note shall not limit or otherwise affect the obligation of such
Borrower hereunder or under such Note with respect to any Loan and
payments of principal or interest on any such Note.
SECTION 2.12. Payments. (a) Each Borrower shall make each
payment (including principal of or interest on any Loan and any Fees
or other amounts) hereunder, without set-off, counterclaim or defense,
from an account in the United States, not later than 1:00 p.m. on the
date when due, to the Administrative Agent at the Payment Office in
U.S. Dollars in immediately available funds. If payment is so received
after such time, then for all purposes of this Agreement, such payment
shall be deemed received on the next succeeding Business Day.
(b) Whenever any payment (including principal of or interest
on any Loans or any Fees or other amounts) hereunder shall become due,
or otherwise would occur, on a day that is not a Business Day, such
payment may be made on the next succeeding Business Day, and such
extension of time shall in such case be included in the computation of
interest or Fees, if applicable.
SECTION 2.13. Reserve Requirements; Change in Circumstances.
(a) Notwithstanding any other provision herein, if after the date of
this Agreement any change in applicable law or regulation or in the
interpretation or administration thereof or adoption of any new law or
regulation by any Governmental Authority charged with the
interpretation or administration thereof (whether or not having the
force of law) shall result in the imposition, modification or
applicability of any reserve, special deposit or similar requirement
against assets of, deposits with or for the account of or credit
extended by any Lender, or shall result in the imposition on any
Lender or the London interbank market of any other condition affecting
this Agreement, such Lender's Commitment or any Eurodollar Loan made
by such Lender, and the result of any of the foregoing
<PAGE>
shall be to increase the cost to such Lender of making or maintaining
any Eurodollar Loan or to reduce the amount of any sum received or
receivable by such Lender hereunder (whether of principal, interest or
otherwise) by an amount deemed by such Lender in good faith to be
material, then such additional amount or amounts as will compensate
such Lender for such additional costs or reduction will be paid by the
Borrowers, jointly and severally, to such Lender upon demand.
(b) If any Lender shall have determined that the adoption
after the date hereof of any law, rule, regulation or guideline
arising out of the July 1988 report of the Basle Committee on Banking
Regulations and Supervisory Practices entitled "International
Convergence of Capital Measurement and Capital Standards", or the
adoption after the date hereof of any other law, rule, regulation or
guideline regarding capital adequacy, or any change in any of the
foregoing or in the interpretation or administration of any of the
foregoing by any Governmental Authority, central bank or comparable
agency charged with the interpretation or administration thereof, or
compliance by any Lender (or any lending office of such Lender) or any
Lender's holding company with any request or directive regarding
capital adequacy (whether or not having the force of law) of any such
authority, central bank or comparable agency, has or would have the
effect of reducing the rate of return on such Lender's capital or on
the capital of such Lender's holding company, if any, as a consequence
of this Agreement, such Lender's Commitment or the Loans made
hereunder to a level below that which such Lender or such Lender's
holding company could have achieved but for such adoption, change or
compliance (taking into consideration such Lender's policies and the
policies of such Lender's holding company with respect to capital
adequacy) by an amount deemed by such Lender in good faith to be
material, then from time to time such additional amount or amounts as
will compensate such Lender for such reduction will be paid to such
Lender by the Borrowers, jointly and severally.
(c) A certificate of each Lender setting forth such amount
or amounts as shall be necessary to compensate such Lender or its
holding company, as applicable, as specified in paragraph (a) or (b)
above, as the case may be, shall be delivered to the Borrowers and
shall be conclusive absent manifest error. The Borrowers shall,
jointly and severally, pay each Lender the amount shown as due on any
such certificate delivered by it within 10 days after their receipt of
the same.
<PAGE>
(d) Failure on the part of any Lender to demand compensation
for any increased costs or reduction in amounts received or receivable
or reduction in return on capital with respect to any period shall not
constitute a waiver of such Lender's right to demand compensation with
respect to such period or any other period; provided, however, that no
Lender shall be entitled to compensation under this Section 2.13 for
any costs incurred or reductions suffered with respect to any date
unless it shall have notified the Borrowers that it will demand
compensation for such costs or reductions under paragraph (c) above
not more than 90 days after the later of (i) such date and (ii) the
date on which it shall have become aware of such costs or reductions.
Notwithstanding any other provision of this Section 2.13, no Lender
shall demand compensation for any increased cost or reduction referred
to above if it shall not be the general policy or practice of such
Lender to demand such compensation in similar circumstances under
comparable provisions of other credit agreements, if any (it being
understood that this sentence shall not in any way limit the
discretion of any Lender to waive the right to demand such
compensation in any given case). The protection of this Section 2.13
shall be available to each Lender regardless of any possible
contention of the invalidity or inapplicability of the law, rule,
regulation, guideline or other change or condition which shall have
occurred or been imposed.
SECTION 2.14. Change in Legality. (a) Notwith- standing any
other provision herein, if any change in any law or regulation or in
the interpretation thereof or adoption of any new law or regulation by
any Governmental Authority charged with the administration or
interpretation thereof shall make it unlawful for any Lender to make
or maintain any Eurodollar Loan or to give effect to its obligations
as contemplated hereby with respect to any Eurodollar Loan, then, by
written notice to the Borrowers and to the Administrative Agent, such
Lender may:
(i) declare that Eurodollar Loans will not thereafter be
made by such Lender hereunder, whereupon any request for a
Eurodollar Borrowing shall, as to such Lender only, be deemed a
request for a Base Rate Loan unless such declaration shall be
subsequently withdrawn; and
(ii) require that all outstanding Eurodollar Loans made by
it be converted to Base Rate Loans, in which event all such
Eurodollar Loans shall be automatically converted
<PAGE>
to Base Rate Loans as of the effective date of such notice as
provided in paragraph (b) below.
In the event any Lender shall exercise its rights under (i) or (ii)
above, all payments and prepayments of principal which would otherwise
have been applied to repay the Eurodollar Loans that would have been
made by such Lender or the converted Eurodollar Loans of such Lender
shall instead be applied to repay the Base Rate Loans made by such
Lender in lieu of, or resulting from the conversion of, such
Eurodollar Loans.
(b) For purposes of this Section 2.14, a notice by any
Lender shall be effective as to each Eurodollar Loan, if lawful, on
the last day of the Interest Period currently applicable to such
Eurodollar Loan; in all other cases such notice shall be effective on
the date of receipt.
(c) If, on any date for determining the Eurodollar Rate for
any Interest Period, by reason of any changes arising after the date
hereof affecting the interbank Eurodollar market, the Administrative
Agent shall have determined that adequate and fair means do not exist
for ascertaining the Eurodollar Rate on the basis provided in the
definition thereof, the Administrative Agent shall give notice of such
determination to the Borrowers and the Lenders. In such event, (x)
Eurodollar Loans shall not be available until such time as the
Administrative Agent notifies the Borrowers and the Lenders that the
circumstances giving rise to such notice no longer exist and (y) any
Notice of Borrowing or Notice of Conversion/ Continuation with respect
to Eurodollar Loans that have not yet been incurred, converted or
continued shall be deemed rescinded by the Requesting Borrower.
SECTION 2.15. Indemnity. The Borrowers shall, jointly and
severally, indemnify each Lender against any out-of-pocket loss or
expense which such Lender may sustain or incur as a consequence of (a)
any failure to borrow, convert, continue or prepay any Loan hereunder
after irrevocable notice of such borrowing, conversion, continuation
or prepayment has been given by such Borrower pursuant to Section
2.02, 2.04, 2.06 or 2.10 (other than a deemed rescission in accordance
with Section 2.14(c)), (b) any payment, prepayment or conversion, or
assignment required under Section 2.19, of a Eurodollar Loan required
by any other provision of this Agreement or otherwise made or deemed
made on a date other than the last day of the Interest Period, if any,
applicable thereto, (c) any default in payment or prepayment of the
principal amount of any Loan or any part thereof or interest accrued
thereon, as and when due
<PAGE>
and payable (at the due date thereof, whether by scheduled maturity,
acceleration, irrevocable notice of prepayment or otherwise) or (d)
the occurrence of any Event of Default, including, in each such case,
any loss or reasonable expense sustained or incurred or to be
sustained or incurred in liquidating or employing deposits from third
parties acquired to effect or maintain any Loan or any part thereof as
a Eurodollar Loan. Such loss shall include an amount equal to (x) such
Lender's Pro Rata Share of the principal amount of the Loan so repaid,
prepaid, converted, assigned or not borrowed, prepaid, continued or
converted (the "Affected Principal Amount") times (y) the excess, if
any, of (i) Eurodollar Rate applicable to such Loan over (ii) the
LIBID Rate applicable to such Loan in effect on or about the date of
such repayment, prepayment, conversion, assignment or failure to
borrow, prepay, continue or convert, based on the rates bid on or
about such date for deposits in an amount equal approximately to such
Lender's Pro Rata Share of the Affected Principal Amount with an
interest period equal approximately to the period from the date of
such repayment, prepayment, conversion, assignment or failure to
borrow, prepay, continue or convert to the last day of the Interest
Period for such Loan (the "Remaining Period") times (z) a fraction,
the numerator of which is the number of days in the Remaining Period
and the denominator of which is 360. Such expense shall include any
other reasonable out-of-pocket expense (including any reasonable
internal processing charge customarily charged by such Lender)
suffered by such Lender in liquidating or employing deposits prior to
maturity in amounts which correspond to such Lender's Pro Rata Share
of the Affected Principal Amount. A certificate of any Lender setting
forth any amount or amounts which such Lender is entitled to receive
pursuant to this Section 2.15 shall be delivered to the Borrowers and
shall be conclusive absent manifest error.
SECTION 2.16. Pro Rata Treatment. Except as required under
Sections 2.14 and 2.19, each payment or prepayment of principal of any
Borrowing, each payment of interest on the Loans, each payment of the
Commitment Fees and the Facility Fee, each reduction of the
Commitments and each conversion of any Borrowing into a Borrowing of
any Type shall be allocated pro rata among the Lenders in accordance
with their respective Pro Rata Shares. Each Lender agrees that in
computing such Lender's portion of any Borrowing to be made hereunder,
the Administrative Agent may, in its discretion, round each Lender's
percentage of such Borrowing to the next higher or lower whole dollar
amount.
<PAGE>
SECTION 2.17. Sharing of Setoffs. Each Lender agrees that if
it shall, through the exercise of a right of banker's lien, setoff or
counterclaim, or pursuant to a secured claim under Section 506 of the
Bankruptcy Code or other security or interest arising from, or in lieu
of, such secured claim, exercised or received by such Lender under any
applicable bankruptcy, insolvency or other similar law or otherwise,
or by any other means, obtain payment (voluntary or involuntary) in
respect of any Loan or Loans to a Borrower as a result of which the
unpaid principal portion of its Loans (and accrued and unpaid interest
thereon) to such Borrower shall be proportionately less than the
unpaid principal portion of the Loans (and accrued and unpaid interest
thereon) of any other Lender to such Borrower, it shall be deemed
simultaneously to have purchased from such other Lender at face value,
and shall promptly pay to such other Lender the purchase price for, a
participation in the Loans of such other Lender to such Borrower so
that the aggregate unpaid principal amount of the Loans (and accrued
and unpaid interest thereon) to such Borrower and participations in
the Loans to such Borrower held by each Lender shall be in the same
proportion to the aggregate unpaid principal amount of all Loans to
such Borrower then outstanding as the principal amount of its Loans
(and accrued and unpaid interest thereon) to such Borrower prior to
such exercise of banker's lien, setoff or counterclaim or other event
was to the principal amount of all Loans outstanding (and accrued and
unpaid interest thereon) prior to such exercise of banker's lien,
setoff or counterclaim or other event; provided, however, that, if any
such purchase or purchases or adjustments shall be made pursuant to
this Section 2.17 and the payment giving rise thereto shall thereafter
be recovered, such purchase or purchases or adjustments shall be
rescinded to the extent of such recovery and the purchase price or
prices or adjustment restored without interest. Any Lender holding a
participation in a Loan deemed to have been so purchased may exercise
any and all rights of banker's lien, setoff or counterclaim with
respect to any and all moneys owing to such Lender by reason thereof
as fully as if such Lender had made a Loan in the amount of such
participation. Each Borrower expressly consents to the foregoing
arrangement.
SECTION 2.18. Taxes. (a) Any and all payments to the Lenders
under any Credit Document shall be made free and clear of and without
deduction for any and all current or future taxes, levies, imposts,
deductions, charges or withholdings, and all liabilities with respect
thereto (including penalties, interest and expenses), excluding (i)
income
<PAGE>
taxes (including any branch profits tax) imposed on the income of the
Administrative Agent or any Lender (it being understood that the term
"Lender" in this Section 2.18 shall include any transferee or assignee
thereof, including a participation holder (any such entity, a
"Transferee")) and (ii) franchise taxes imposed on the income, assets
or net worth of the Administrative Agent or any Lender, in each case
by the jurisdiction under the laws of which the Administrative Agent
or such Lender is organized or in which its lending office is located,
or in which it is doing business (other than as a result of entering
into any Credit Document, performing any obligations thereunder,
receiving any payments thereunder or enforcing any rights thereunder),
or any political subdivision thereof (all such nonexcluded taxes,
levies, imposts, deductions, charges, withholdings and liabilities,
collectively or individually, "Taxes"). If any Borrower shall be
required to deduct any Taxes from or in respect of any sum payable
under any Credit Document to the Administrative Agent or any Lender,
(x) the sum payable shall be increased by the amount (an "additional
amount") necessary so that after making all required deductions
(including deductions applicable to additional sums payable under this
Section) the Administrative Agent or such Lender (as the case may be)
shall receive an amount equal to the sum it would have received had no
such deductions been made, (y) such Borrower shall make such
deductions and (z) such Borrower shall pay the full amount deducted to
the relevant Governmental Authority in accordance with applicable law.
(b) In addition, the Borrowers shall, jointly and severally,
pay to the relevant Governmental Authority in accordance with
applicable law any current or future stamp or documentary taxes or any
other excise or property taxes, charges or similar levies that arise
from any payment made hereunder or from the execution, delivery or
registration of, or otherwise with respect to, this Agreement or any
other Credit Document ("Other Taxes").
(c) The Borrowers shall, jointly and severally, indemnify
each Lender and the Administrative Agent for the full amount of Taxes
and Other Taxes paid by such Lender or the Administrative Agent, as
the case may be, and any liability (including reasonable attorney's
fees and expenses) arising therefrom or with respect thereto, whether
or not such Taxes or Other Taxes were correctly or legally asserted by
the relevant Governmental Authority. A certificate as to the amount of
such payment or liability prepared by a Lender or the Administrative
Agent on its behalf, absent manifest error, shall be final,
<PAGE>
conclusive and binding for all purposes. Such indemnification shall be
made within 30 days after the date the Lender or the Administrative
Agent, as the case may be, makes written demand therefor, which
written demand shall be made within 60 days of the date such Lender or
Administrative Agent receives written demand for payment of such Taxes
or Other Taxes from the relevant Governmental Authority.
(d) If a Lender or the Administrative Agent shall become
aware that it is entitled to claim a refund from a Governmental
Authority in respect of Taxes or Other Taxes as to which it has been
indemnified by the Borrowers, or with respect to which the Borrowers
have paid additional amounts, pursuant to this Section 2.18, it shall
promptly notify the Borrowers of the availability of such refund claim
and shall, within 30 days after receipt of a request by the Borrowers,
make a claim to such Governmental Authority for such refund at the
Borrowers' expense. If a Lender or the Administrative Agent receives a
refund (including pursuant to a claim for refund made pursuant to the
preceding sentence) in respect of any Taxes or Other Taxes as to which
it has been indemnified by the Borrowers or with respect to which the
Borrowers have paid additional amounts pursuant to this Section 2.18,
it shall within 30 days from the date of such receipt pay over such
refund to the Borrowers (but only to the extent of indemnity payments
made, or additional amounts paid, by the Borrowers under this Section
2.18 with respect to the Taxes or Other Taxes giving rise to such
refund, as determined by such Lender in its sole discretion), net of
all out-of-pocket expenses of such Lender or the Administrative Agent
and without interest (other than interest paid by the relevant
Governmental Authority with respect to such refund); provided,
however, that the Borrowers, upon the request of such Lender or the
Administrative Agent, agree to repay the amount paid over to the
Borrowers (plus penalties, interest or other charges) to such Lender
or the Administrative Agent in the event such Lender or the
Administrative Agent is required to repay such refund to such
Governmental Authority.
(e) As soon as practicable after the date of any payment of
Taxes or Other Taxes by the Borrowers to the relevant Governmental
Authority, the Borrowers will, jointly and severally, deliver to the
Administrative Agent, at its address referred to in Section 9.01, the
original or a certified copy of a receipt issued by such Governmental
Authority evidencing payment thereof.
<PAGE>
(f) Without prejudice to the survival of any other agreement
contained herein, the agreements and obligations contained in this
Section 2.18 shall survive the termination of this Agreement and the
payment in full of the principal of and interest on all Loans made
hereunder.
(g) Each Lender that is organized under the laws of a
jurisdiction other than the United States, any State thereof or the
District of Columbia (a "Non-U.S. Lender") shall deliver to the
Borrowers and the Administrative Agent two copies of either United
States Internal Revenue Service Form 1001 or Form 4224, 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 Form W-8, or any
subsequent versions thereof or successors thereto (and, if such
Non-U.S. Lender delivers a Form W-8, a certificate representing that
such Non-U.S. Lender is not a bank for purposes of Section 881(c) of
the Code, is not a 10 percent shareholder (within the meaning of
Section 871(h)(3)(B) of the Code) of any Borrower and is not a
controlled foreign corporation related to any Borrower (within the
meaning of Section 864(d)(4) of the Code)), properly completed and
duly executed by such Non-U.S. Lender claiming complete exemption
from, or reduced rate of, U.S. Federal withholding tax on payments by
the Borrowers under this Agreement. 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 a Transferee that is a participation
holder, on or before the date such participation holder becomes a
Transferee hereunder) and on or before the date, if any, such Non-U.S.
Lender changes its applicable lending office by designating a
different lending office (a "New Lending Office"). 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. Notwithstanding any other provision of this Section
2.18, a Non-U.S. Lender shall not be required to deliver any form
pursuant to this Section 2.18 that such Non-U.S. Lender is not legally
able to deliver.
(h) No Borrower shall be required to indemnify any Non-U.S.
Lender, or to pay any additional amounts to any Non-U.S. Lender, in
respect of United States Federal withholding tax pursuant to paragraph
(a) or (c) above to the extent that (i) the obligation to withhold
amounts with respect to United States Federal withholding tax existed
on the date such Non-U.S. Lender became a party to this Agreement (or,
in the case of a Transferee that is a participation holder, on the
<PAGE>
date such participation holder became a Transferee hereunder) or, with
respect to payments to a New Lending Office, the date such Non-U.S.
Lender designated such New Lending Office with respect to a Loan;
provided, however, that this clause (i) shall not apply to any
Transferee or New Lending Office that becomes a Transferee or New
Lending Office as a result of an assignment, participation, transfer
or designation made at the request of the Borrowers; provided,
further, however, that this clause (i) shall not apply to the extent
the indemnity payment or additional amounts any Transferee, or Lender
through a New Lending Office, would be entitled to receive (without
regard to this clause (i)) do not exceed the indemnity payment or
additional amounts that the person making the assignment,
participation or transfer to such Transferee, or Lender making the
designation of such New Lending Office, would have been entitled to
receive in the absence of such assignment, participation, transfer or
designation (taking into account the provisions of this clause (i)) or
(ii) the obligation to pay such indemnity payment or additional
amounts would not have arisen but for a failure by such Non-U.S.
Lender to comply with the provisions of paragraph (g) above.
(i) The Administrative Agent and each Lender agrees that,
upon the occurrence of any event giving rise to the operation of
paragraph (a) or (c) above with respect to the Administrative Agent or
such Lender, it will, if requested by any Borrower, use reasonable
efforts (subject to overall policy considerations of the
Administrative Agent or such Lender) to designate another lending
office for any Loans affected by such event; provided, however, that
such designation shall be made on such terms that the Administrative
Agent or such Lender and its lending office, in the Administrative
Agent's or such Lender's reasonable judgment, suffer no economic,
legal, regulatory or other disadvantage, with the object of avoiding
the consequence of the event giving rise to the operation of either of
such paragraphs. The applicable Borrower agrees to pay all reasonable
costs, expenses and liabilities incurred by the Administrative Agent
or any Lender in utilizing another lending office of the
Administrative Agent or such Lender pursuant to this paragraph (i).
Nothing in this paragraph (i) shall affect or postpone any of the
obligations of any Borrower or the right of the Administrative Agent
or any Lender elsewhere herein.
(j) Nothing contained in this Section shall require any
Lender or the Administrative Agent to make available any of its tax
returns (or any other information that it deems to be confidential or
proprietary).
<PAGE>
SECTION 2.19. Duty to Mitigate; Replacement of Lenders. (a)
Any Lender (or Transferee) claiming any additional amounts payable
pursuant to Section 2.13 or Section 2.18 or exercising its rights
under Section 2.14 shall use reasonable efforts (consistent with legal
and regulatory restrictions) to file any certificate or document
requested by the Borrowers or to change the jurisdiction of its
applicable lending office if the making of such a filing or change
would avoid the need for or reduce the amount of any such additional
amounts which may thereafter accrue or avoid the circumstances giving
rise to such exercise and would not, in the sole determination of such
Lender (or Transferee), be otherwise disadvantageous to such Lender
(or Transferee).
(b) (x) In the event that any Lender shall have delivered a
notice or certificate pursuant to Section 2.13 or 2.14 to the
Borrowers, or the Borrowers shall be required to make additional
payments to any Lender (or any Transferee) under Section 2.18, (y) if
any Lender shall default in its obligations to make Loans hereunder or
(z) as provided in Section 9.07(c), the Borrowers shall have the
right, at their own expense, upon notice to such Lender and the
Administrative Agent, to require such Lender (the "Replaced Lender")
to transfer and assign without recourse (in accordance with and
subject to the restrictions contained in Section 9.04) all interests,
rights and obligations of the Replaced Lender hereunder to another
financial institution (a "Replacement Lender") approved by the
Administrative Agent (which approval shall not be unreasonably
withheld) which shall assume such obligations (or to terminate the
Commitment of such Lender and reduce the Total Commitment); provided,
however, that (i) no Default or Event of Default shall have occurred
and be continuing, (ii) no such assignment shall conflict with any
law, rule or regulation or order of any Governmental Authority, (iii)
the Borrowers shall have paid to the Replaced Lender all monies
accrued and owing hereunder to it, including pursuant to Section 2.13,
2.14, 2.15 or 2.18, for all periods prior to the effectiveness of such
assignment (other than accrued fees and interest being paid by the
Replacement Lender under clause (iv)), (iv) the Replacement Lender
shall have paid in full in U.S. Dollars all amounts due and payable to
the Replaced Lender (including accrued fees and interest) under the
applicable instrument of assignment, and (v) if the Borrowers are
obligated at any one time to make payments to or indemnify more than
one Lender pursuant to Section 2.13, 2.14, 2.15 or 2.18, all such
Lenders must be treated the same pursuant to this Section 2.19.
<PAGE>
ARTICLE III
CONDITIONS PRECEDENT
The obligations of each of the Lenders to make Loans to any
of the Borrowers hereunder are subject to (i) in the case of the
Initial Loans, the satisfaction of each of the conditions set forth in
Section 3.01, (ii) in the case of Acquisition Loans (including any
Initial Loans), the satisfaction of each of the conditions set forth
in Section 3.02, (iii) in the case of Assumptions, the satisfaction of
each of the conditions in Section 3.03 and (iv) in the case of all
Loans (including the Initial Loans, Acquisition Loans and the
Assumptions), the satisfaction of each of the conditions set forth in
Section 3.04. Each request for Loans and each acceptance of the
proceeds thereof shall constitute a representation and warranty that
all conditions applicable to such Loans have been satisfied; provided,
however, that in no event shall a continuation or conversion of any
Loan constitute a new Loan or such representation or warranty.
SECTION 3.01. Conditions to Initial Loans. On the
Closing Date:
(a) Officers' Certificates. (i) The Administrative Agent
shall have received (with copies for each Lender) an Officers'
Certificate from each Borrower dated the Closing Date, in form and
substance reasonably satisfactory to the Administrative Agent, stating
that, to the best knowledge and belief of each signer of such
certificate after due inquiry, each of the conditions set forth in
Sections 3.01(c), (d) (only as to the second sentence thereof), (h),
(k), (l) (without giving effect to the reference to the Administrative
Agent and Required Lenders therein) and 3.04 are, as to such Borrower,
satisfied as of the Closing Date.
(ii) The Administrative Agent shall have received (with
copies for each Lender) an Officer's Solvency Certificate dated the
Closing Date from each Borrower.
(iii) The Administrative Agent shall have received (with
copies for each Lender) an Interest Rate Certificate from each
Borrower setting forth (x) the Debt Ratings as of the Closing Date and
(y) the Leverage Ratio of such Borrower, determined on a Pro Forma
Basis.
<PAGE>
(b) Opinions of Counsel. The Administrative Agent shall have
received opinions in form and substance reasonably satisfactory to the
Administrative Agent, addressed to each Lender and dated the Closing
Date from (i) Paul, Weiss, Rifkind, Wharton & Garrison, counsel to the
Borrowers, which opinion shall cover the matters contained in Exhibit
F-1, (ii) Peter R. Haje, Esq., General Counsel to the Borrowers, which
opinion shall cover the matters contained in Exhibit F-2, and (iii)
Cahill Gordon & Reindel, special counsel to the Lenders, which opinion
shall cover the matters contained in Exhibit F-3.
(c) No Defaults. No default shall have occurred, and no
event shall have occurred and no condition shall exist that with the
lapse of time or notice or both would constitute a default, (i) before
giving effect to the Initial Loans and the other transactions to occur
on the Closing Date, under the Existing TWE Credit Agreement or (ii)
before and after giving effect on a Pro Forma Basis to the Initial
Loans and the other transactions to occur on the Closing Date, with
respect to (x) any other indebtedness for money borrowed of any
Company or TWI or any of its Subsidiaries or (y) any other material
obligation of any Company.
(d) Organizational Documents, Etc. Each Lender shall have
received copies of (i) each Organizational Document and (ii) any
material agreements entered into by any Credit Party, as of the
Closing Date, governing the terms and relative rights of the Capital
Stock, partnership interests or other equity interests of any Credit
Party and any such agreements entered into by partners or shareholders
(as applicable) relating to any Credit Party, certified as true and
complete by an appropriate officer or Governmental Authority, and the
provisions of each of the foregoing shall be reasonably satisfactory
to the Lenders. Each Organizational Document shall be in full force
and effect without amendment, modification, waiver or forbearance in a
manner inconsistent with the provisions of Section 5.10 or 6.12 by or
on behalf of any Credit Party or any other party to the Organizational
Documents, without the prior written consent of the Administrative
Agent and the Required Lenders.
(e) Corporate Proceedings. All corporate, partnership, legal
and other proceedings in connection with the authorization, execution
and delivery by the Credit Parties of the Credit Documents and the
transactions to occur on the Closing Date shall be reasonably
satisfactory in form and substance to the Administrative Agent and the
Required Lenders. The
<PAGE>
Administrative Agent shall have received all information and copies of
all certificates, documents and papers, including records of
corporate, partnership and other proceedings and governmental
approvals, if any, which the Administrative Agent reasonably may have
requested in connection therewith, such documents and papers where
appropriate to be certified by proper corporate or partnership
authorities or Governmental Authorities.
(f) Delivery of Notes. Each Borrower shall deliver to the
Administrative Agent a Revolving Note for each Lender executed by each
such Borrower in accordance with Section 2.11. TWE shall deliver to
the Administrative Agent a Swingline Note executed by it in accordance
with Section 2.11.
(g) Payment of Fees. All fees and reimbursable expenses due
and payable to the Lenders, the Administrative Agent and its counsel
pursuant to the Credit Documents and their respective commitment
letters, fee letters and otherwise, and pursuant to the Existing TWE
Credit Agreement and otherwise, shall have been paid in full to each
such Person.
(h) Change of Control. Since March 31, 1995, no Change of
Control shall have occurred.
(i) Guarantees. Each TWE Partner Guarantor shall have
executed and delivered a TWE Partner Guarantee of its Guaranteed
Percentage. Each Subsidiary of a TWE Partner Guarantor, which
Subsidiary holds TWE Material Beneficial Assets (a "Holder Guarantor")
shall have executed and delivered a Holder Guarantee. Each holder of
TWEAN Material Beneficial Assets (other than Advance, Newhouse,
Advance/Newhouse and TWE) shall have executed and delivered a
Subsidiary Guarantee. TWE shall have executed and delivered the TWE
Guarantee. Each Wholly Owned Restricted Subsidiary of a Borrower that
is, or together with any other such Subsidiary not already party to a
Subsidiary Guarantee would be, a Material Subsidiary, shall have
executed and delivered a Subsidiary Guarantee (it being understood
that Subsidiaries that collectively would not be a Material Subsidiary
need not execute a Subsidiary Guarantee unless any such Subsidiary
conducts a business that is part of that conducted by another
Subsidiary that executes or is required to execute a Subsidiary
Guarantee); provided, however, that this sentence shall not apply to
(i) Six Flags or any of its Subsidiaries or (ii) any Subsidiary that
is (a) a Foreign Subsidiary or (b) a domestic Subsidiary whose only
assets are (x) the capital stock of one or more Foreign Subsidiaries
or (y) foreign
<PAGE>
business operations. Each such Guarantee shall be in
full force and effect.
(j) Beneficial Assets. (i) The Administrative Agent shall
have received a letter from TWI addressed to the Lenders, in the form
of Exhibit H-1, stating that TWI agrees (x) to cause each holder of
TWE Beneficial Assets to comply with each and every covenant or other
provision of the Credit Agreement applicable to such holder and (y) to
use its reasonable best efforts to continue to seek all relevant
authorizations, orders, approvals and franchises with respect to the
Contributed Businesses (as defined in the TWE Partnership Agreement)
(including the Beneficial Assets), and to contribute any assets
contemplated to be transferred to TWE but not so transferred as of the
Closing Date but subject to Section 3.5 of the TWE Partnership
Agreement.
(ii) The Administrative Agent shall have received a letter
from each of Advance and Newhouse addressed to the Lenders, in the
form of Exhibit H-2, stating that Advance or Newhouse, as the case may
be, agrees (x) to indemnify TWEAN and its Subsidiaries with respect to
any claims relating to or arising out of the contribution of the
Advance/Newhouse Assets and related transactions, (y) to comply, and
cause each other holder of TWEAN Beneficial Assets that is an
Affiliate of Advance or Newhouse, as the case may be, to comply, with
each and every covenant or other provision of the Credit Agreement
applicable to Advance or Newhouse, as the case may be, in its capacity
as a holder of TWEAN Material Beneficial Assets or to such other
holder and (z) use its reasonable best efforts to continue to seek all
relevant authorizations, orders, approvals and franchises with respect
to the Advance/Newhouse Systems (including the TWEAN Beneficial
Assets), and to contribute any assets contemplated to be transferred
to TWEAN but not so transferred as of the Closing Date (subject to
Section 6.7 of the TWEAN Contribution Agreement).
(k) Termination of Existing TWE Credit Agreement.
Simultaneously with the making of the Initial Loans, all Indebtedness
of TWE outstanding under the Existing TWE Credit Agreement shall be
repaid, together with all interest thereon and other amounts owing in
respect thereof, all commitments thereunder shall be cancelled and the
Existing TWE Credit Agreement shall be terminated, all on terms
reasonably satisfactory to the Administrative Agent.
<PAGE>
(l) Absence of TWI Material Adverse Change. Before and after
giving effect to the Initial Loans and the other transactions to occur
on the Closing Date, no event shall have occurred, no condition shall
exist and no event or condition shall have become known (including
information not previously disclosed), which, in the reasonable
judgment of the Administrative Agent or the Required Lenders, singly
or in the aggregate with all such other events and conditions, could
reasonably be expected to have a TWI Material Adverse Effect.
SECTION 3.02. Conditions to Acquisition Loans. On each
Acquisition Funding Date:
(a) Officers' Certificate. (i) The Administrative Agent
shall have received (with copies for each Lender), at least seven (7)
Business Days prior to the proposed Applicable Acquisition Funding
Date (or at such other time as the Administrative Agent shall agree),
an Officers' Certificate from the Acquiring Borrower that shall (1)
outline the material terms and conditions of the Applicable
Acquisition, (2) list the Persons that will become Subsidiaries of
each Acquiring Borrower upon consummation of the Applicable
Acquisition, (3) set forth the method of repayment of any Assumed
Indebtedness, (4) in the case of Loans Incurred to repay or refinance
the Summit Assumed Indebtedness, be accompanied by a copy of the
notice of offer to repurchase the Summit Assumed Indebtedness from the
holders thereof, (5) state that no provision of any Applicable
Acquisition Document has been or will be waived or modified, or if any
such provision has been or will be waived or modified, shall set forth
the provisions of such waiver or modification, (6) state the Leverage
Ratio of each Borrower determined on a Pro Forma Basis after giving
effect to the Applicable Acquisition and the transactions to occur in
connection therewith, (7) be accompanied by a balance sheet of TWI
Cable prepared on a Pro Forma Basis and (8) set forth such other
information as the Administrative Agent or the Required Lenders shall
reasonably request. Such Officers' Certificate shall be, in form and
substance, reasonably satisfactory to the Administrative Agent and the
Required Lenders.
(ii) The Administrative Agent shall have received (with
copies for each Lender) an Officers' Certificate from each Acquiring
Borrower dated such date stating that, to the best knowledge and
belief of each signer of such certificate after due inquiry, the
conditions set forth in Sections 3.02(c) and (d) (only as to the
second sentence thereof) and 3.04 are satisfied.
<PAGE>
(b) Opinions of Counsel. The Administrative Agent shall have
received opinions in form and substance reasonably satisfactory to the
Administrative Agent, addressed to each Lender and dated such date
from (i) Cravath, Swaine & Moore, special merger and acquisition
counsel to the Borrowers, which opinion shall cover the matters
contained in Exhibit I-1 and such other matters as the Administrative
Agent shall reasonably request, and (ii) Peter R. Haje, Esq., General
Counsel to the Borrowers, which opinion shall cover the matters
contained in Exhibit I-2 and such other matters as the Administrative
Agent shall reasonably request. The Administrative Agent shall have
received such other opinions as it shall reasonably request.
(c) No Defaults. Before and after giving effect on a Pro
Forma Basis to the Applicable Acquisition and the transactions to be
consummated in connection therewith, no default shall have occurred,
and no event shall have occurred and no condition shall exist that
with the lapse of time or notice or both would constitute a default,
with respect to (i) any Indebtedness for money borrowed of any Company
(other than any Unrestricted Subsidiary) or TWI or any of its
Subsidiaries or (ii) any other material obligation of any Company
other than any Unrestricted Subsidiary.
(d) Organizational and Applicable Acquisition Documents. (i)
To the extent not previously provided, each Lender shall have received
copies of (A) each Organizational Document and (B) any material
agreements entered into by any Credit Party, as of the Applicable
Acquisition Funding Date, governing the terms and relative rights of
the Capital Stock, partnership interests or other equity interests of
any Credit Party and any such agreements entered into by partners or
shareholders (as applicable) relating to any Credit Party, certified
as true and complete by an appropriate officer or Governmental
Authority, and the provisions of each of the foregoing shall be
reasonably satisfactory to the Lenders. Each Organizational Document
shall be in full force and effect without amendment, modification,
waiver or forbearance in a manner inconsistent with the provisions of
Section 5.10 or 6.12 by or on behalf of any Credit Party or any other
party to the Organizational Documents, without the prior written
consent of the Administrative Agent and the Required Lenders.
(ii) The Administrative Agent shall have received true and
complete copies of all of the Applicable Acquisition Documents. Any
amendment, modification, waiver or forbearance of any provision of any
of the Applicable Acquisition Documents
<PAGE>
shall be in form and substance reasonably satisfactory to
the Administrative Agent.
(iii) The Applicable Acquisition shall occur simultaneously
with, or immediately after, the Borrowing to occur on the Applicable
Acquisition Funding Date and on terms reasonably satisfactory to the
Administrative Agent.
(e) Guarantees. Each Person that will become a Subsidiary of
TWI Cable or TWEAN upon consummation of the Applicable Acquisition
shall have executed and delivered a Subsidiary Guarantee; provided,
however, that Subsidiaries of Cablevision Industries Corporation or
KBLCOM Incorporated, as the case may be, having less than 20,000
subscribers shall not be required to deliver a Subsidiary Guarantee if
Subsidiaries of Cablevision Industries Corporation or KBLCOM
Incorporated, as the case may be, that deliver a Subsidiary Guarantee
shall own more than 85% of all of the subscribers of CVI or KBLCOM, as
the case may be. If the Applicable Acquisition shall be the KBLCOM
Acquisition, Paragon shall have executed and delivered the Paragon
Guarantee. Each such Guarantee shall be in full force and effect.
(f) Corporate Proceedings. All corporate, partnership, legal
and other proceedings and all agreements, documents and instruments
entered into, delivered or filed with any Governmental Authority
required in connection with the Applicable Acquisition shall be
reasonably satisfactory in form and substance to the Administrative
Agent and the Required Lenders. The Administrative Agent shall have
received all information and copies of all certificates, documents and
papers, including records of corporate, partnership and other
proceedings and governmental approvals, if any, which the
Administrative Agent reasonably may have requested in connection
therewith, such documents and papers where appropriate to be certified
by proper corporate or partnership authorities or Governmental
Authorities.
SECTION 3.03. Conditions to Assumptions. On each Assumption
Date:
(a) Officers' Certificates. (A) Each Lender shall have
received, seven (7) Business Days prior to such Assumption Date (or at
such other time as the Administrative Agent shall agree), an Officers'
Certificate that shall (1) outline the material terms and conditions
of the Applicable Transfer, including the consideration to be received
(including the
<PAGE>
amount of Allocated Loans to be assigned) by TWI Cable and its
Subsidiaries, (2) list the Persons, if any, that will cease to be
Subsidiaries of TWI Cable and become Subsidiaries of the Transferee
Borrower upon consummation of the Applicable Transfer, (3) state that
no provision of any Applicable Transfer Document has been or will be
waived or modified, or if any such provision has been or will be
waived or modified, shall set forth the provisions of such waiver or
modification, (4) state the Leverage Ratio of each Borrower determined
on a Pro Forma Basis after giving effect to the Applicable Transfer,
(5) set forth in reasonable detail the calculation of the amount of
the Allocated Loans and (6) set forth such other information as the
Administrative Agent or the Required Lenders shall reasonably request,
and each of the foregoing shall be reasonably satisfactory to the
Administrative Agent and the Required Lenders.
(B) The Administrative Agent shall have received an
Officers' Certificate from TWI Cable dated such Assumption Date
stating that, to the best knowledge and belief of each signer of such
certificate after due inquiry, the conditions set forth in Sections
3.03(c), (d) (only as to the first sentence thereof), (e), (f) and (g)
and 3.04 are satisfied.
(b) Opinions of Counsel. The Administrative Agent shall have
received opinions in form and substance reasonably satisfactory to the
Administrative Agent, addressed to each Lender and dated such date,
from (i) Paul, Weiss, Rifkind, Wharton & Garrison or such other
counsel to the Borrowers acceptable to the Administrative Agent, which
opinion shall cover the matters contained in Exhibit J-1, with such
changes thereto and containing such other matters as the
Administrative Agent shall reasonably agree to or request and (ii)
Peter R. Haje, Esq., General Counsel to the Borrowers, which opinion
shall cover the matters contained in Exhibit J-2, with such changes
thereto and containing such other matters as the Administrative Agent
shall reasonably agree to or request.
(c) No Defaults. Before and after giving effect on a Pro
Forma Basis to the Applicable Transfer, no default shall have
occurred, and no event shall have occurred and no condition shall
exist that with the lapse of time or notice or both would constitute a
default, with respect to (1) any Indebtedness for money borrowed of
any Company (other than any Unrestricted Subsidiary) or TWI or any of
its Subsidiaries or (2) any other material obligation of any Company.
(d) Terms of Transfer. The consideration to be received
(including the Transferee Borrower's assumption of the Allocated
Loans) by TWI Cable shall equal the fair market value
<PAGE>
of the assets to be acquired by the Transferee Borrower. The Lenders
shall have received a true and complete copy of all valuation and
other reports, if any, prepared by third parties for or on behalf of
any Borrower with respect to the consideration in the Applicable
Transfer. The terms and conditions of the Applicable Transfer shall be
reasonably satisfactory to the Administrative Agent.
(e) Assumption of Loans. The Assumption of the Allocated
Loans shall occur simultaneously with the consummation of the
Applicable Transfer.
(f) Borrowing Cap. After giving pro forma effect to the
Applicable Transfer, including the Assumption of the Allocated Loans,
all Loans then outstanding to each of TWI Cable and the Transferee
Borrower shall not exceed such Borrower's Borrowing Cap.
(g) Transfer Documents. The Administrative Agent shall have
received true and complete copies of all of the Applicable Transfer
Documents. Any amendment, modification, waiver or forbearance of any
provision of any of the Applicable Transfer Documents shall be in form
and substance reasonably satisfactory to the Administrative Agent.
(h) Guarantees. Each Subsidiary Guarantor that will become a
Subsidiary of the Transferee Borrower upon consummation of the
Applicable Transfer shall have executed and delivered a Subsidiary
Guarantee (it being understood that each Person that will cease to be
a Subsidiary of TWI Cable will be released from its Subsidiary
Guarantee guaranteeing the Obligations of TWI Cable).
(i) Corporate Proceedings. All corporate, partnership, legal
and other proceedings and all agreements, documents and instruments
entered into, delivered or filed with any Governmental Authority
required in connection with the Applicable Transfer shall be
reasonably satisfactory in form and substance to the Administrative
Agent and the Required Lenders. The Administrative Agent shall have
received all information and copies of all certificates, documents and
papers, including records of corporate, partnership and other
proceedings and governmental approvals, if any, which the
Administrative Agent reasonably may have requested in connection
therewith, such documents and papers where appropriate to be certified
by proper corporate or partnership authorities or Governmental
Authorities.
<PAGE>
SECTION 3.04. Conditions to All Loans. On each Funding Date:
(a) No Default or Event of Default. Before and after giving
effect to the Loans to be made and any other transaction to occur on
such Funding Date, no Default or Event of Default shall have occurred
and be continuing.
(b) Representations and Warranties. Before and after giving
effect to the Loans to be made on such Funding Date and any other
transaction to occur on such Funding Date, all representations and
warranties of the Borrowers contained herein shall be true and correct
in all material respects with the same effect as though such
representations and warranties had been made on and as of such Funding
Date, except to the extent that such representations and warranties
expressly relate to an earlier date.
(c) No Injunction. There shall not exist any temporary or
permanent judgment, order, injunction or other restraint issued or
filed by a court of competent jurisdiction with respect to the making
of any Loans.
ARTICLE IV
REPRESENTATIONS, WARRANTIES AND AGREEMENTS
In order to induce each Lender to enter into this Agreement
and the other Credit Documents and to make the Loans hereunder, each
Borrower (unless the context clearly requires otherwise, as to itself
and its Subsidiaries and in the case of TWE and TWI Cable, also as to
TWI and its Subsidiaries (for any representation or warranty
applicable to TWI and its Subsidiaries)) makes each of the following
representations and warranties to, and agreements with, each Lender,
all of which shall survive the execution and delivery of this
Agreement and the making of any Loans, except if any such
representation or warranty expressly indicates that it is being made
as of a specific date such representation or warranty shall be made
only on such date:
SECTION 4.01. Organizational Status. Each Company is a duly
organized and validly existing partnership, corporation or limited
liability company, as the case may be, under the laws of its
jurisdiction of organization, except in the case of any Company that
is not a Credit Party, where the failure to be so duly organized and
validly existing, singly or in
<PAGE>
the aggregate with all such other failures, could reasonably be
expected to have a Borrower Material Adverse Effect. Each Company has
the organizational power and authority to own its property and assets
and to transact the business in which it is engaged and presently
proposes to engage, except in the case of any Company that is not a
Credit Party, where the failure to have such power and authority,
singly or in the aggregate with all such other failures, could
reasonably be expected to have a Borrower Material Adverse Effect.
Each Company is in good standing in its jurisdiction of organization
and is duly qualified or authorized to do business and is in good
standing in all jurisdictions where it is required to be so qualified
or authorized except where the failure to be so qualified or
authorized could not, singly or in the aggregate with all such other
failures, reasonably be expected to have a Borrower Material Adverse
Effect.
SECTION 4.02. Organizational Power and Authority. Each
Company has the organizational power and authority to execute, deliver
and carry out the terms and provisions of each Document to which it
is, or will be, a party and has taken (or prior to the Closing Date
will take) all necessary organizational action to authorize the
execution, delivery and performance of each such Document. This
Agreement constitutes and each other Document (when executed and
delivered by any Company) will constitute, the legal, valid and
binding obligation of each such Company enforceable against such
Company in accordance with its terms except to the extent that the
enforcement of the provisions of such Document may be limited (i) by
any applicable bankruptcy, insolvency, reorganization, moratorium and
other laws affecting the rights of creditors generally or (ii) general
principles of equity (regardless of whether considered in a proceeding
in equity or at law).
SECTION 4.03. No Conflict. Except as specified in Schedule
4.03, the execution, delivery and performance by any Company of any of
the Documents to which it is, or will be, a party, compliance with the
terms and provisions thereof and the consummation of the transactions
contemplated therein (i) will not contravene any applicable provision
of any law, statute, rule, regulation, order, writ, injunction or
decree of any Governmental Authority, which contravention, singly or
in the aggregate with all such other contraventions, could reasonably
be expected to have a Borrower Material Adverse Effect, (ii) will not
violate or otherwise result in any breach of any of the terms,
covenants, conditions or provisions of, or constitute a default under,
or result in the creation or imposition
<PAGE>
of (or the obligation to create or impose) any Lien upon any of the
property or assets of any Company pursuant to the terms of, any
indenture, mortgage, deed of trust, agreement or other instrument to
which any Company is a party or by which the property or assets of any
Company is bound or to which they may be subject (including the TWEAN
Contribution Agreement, the TWEAN Partnership Agreement and the TWE
Partnership Agreement), which violation, breach, default or imposition
of Lien, singly or in the aggregate with all such other violations,
breaches, defaults or impositions of Liens, could reasonably be
expected to have a Borrower Material Adverse Effect and (iii) will not
violate any provision of any Organizational Document.
SECTION 4.04. Litigation. Except as specified in Schedule
4.04, there is no action, suit or proceeding pending or, to the
knowledge of any Borrower, threatened with respect to TWI, any of its
Subsidiaries or any Company before any arbitrator, Governmental
Authority or self-regulatory authority that, singly or in the
aggregate with all other such actions, suits and proceedings, could
reasonably be expected to have a Borrower Material Adverse Effect or a
TWI Material Adverse Effect.
SECTION 4.05. Use of Proceeds; Margin Regulations. (a) TWE
will use the proceeds of all Loans to it (i) on the Closing Date, to
permanently repay all Indebtedness outstanding under the Existing TWE
Credit Agreement (together with all interest thereon and all other
amounts owing in respect thereof) and to pay related fees and
expenses, including those set forth in Section 3.01(g), and (ii) after
the Closing Date, for general corporate purposes.
(b) TWEAN will use the proceeds of all Loans to it, on and
after the Closing Date, (i) in the event that it acquires the Gerry
Subs in the Gerry Acquisition, to repay all of the Gerry Assumed
Indebtedness (plus any make-whole and other premiums relating
thereto), to pay approximately $200,000,000 in cash as partial
consideration in the Gerry Acquisition and to pay related fees and
expenses and (ii) for general corporate purposes.
(c) TWI Cable will use the proceeds of all Loans, (i) on and
after the Closing Date, to repay Assumed Indebtedness (plus any
make-whole and other premiums relating thereto) other than the Gerry
Assumed Indebtedness and any Expired Put Indebtedness and to pay
related fees and expenses, (ii) in the event that it acquires the
Gerry Subs in the Gerry Acquisition,
<PAGE>
to repay all of the Gerry Assumed Indebtedness (plus any
make-whole and other premiums relating thereto), to pay approximately
$200,000,000 in cash as partial consideration in the Gerry Acquisition
and to pay related fees and expenses and (iii) for general corporate
purposes.
(d) At the time of the making of any Loan hereunder, not
more than 25% of the value of the assets of any Borrower or of any
Borrower and its Subsidiaries shall constitute Margin Stock. Neither
the making of any Loan hereunder, nor the use of the proceeds thereof,
will violate or be inconsistent with the provisions of Regulation G,
T, U or X of the Board of Governors of the Federal Reserve System, and
no part of the proceeds of any Loan hereunder will be used to purchase
or carry any Margin Stock in violation of Regulation U or to extend
credit for the purpose of purchasing or carrying any Margin Stock in
violation of Regulation U.
(e) For purposes of this Section 4.05, general corporate
purposes shall include capital expenditures, acquisitions, working
capital and the making of Restricted Payments permitted hereunder.
SECTION 4.06. Governmental Approvals, Etc. Except as
specified in Schedule 4.06, no material order, consent, approval,
license, authorization, validation of, filing, recording or
registration with, or exemption by, any Governmental Authority or of
any other Person which has not been obtained or made is required to be
so obtained or made by any Company or TWI to authorize, or is required
to be so obtained or made in connection with, (i) the execution,
delivery and performance of any Document by any Company or (ii) the
legality, validity, binding effect or enforceability of any Credit
Document. Except as specified in Schedule 4.06, no material order,
consent, approval, license, authorization, validation of, filing,
recording or registration with, or exemption by, any Governmental
Authority or of any other Person which has not been obtained or made
prior to the Applicable Transaction Date is required to be so obtained
or made prior to the Applicable Transaction Date by any Company or TWI
to authorize, or is required to be so obtained or made prior to the
Applicable Transaction Date in connection with, the legality,
validity, binding effect or enforceability of any Applicable
Transaction Document (other than those the failure of which to obtain,
singly or in the aggregate, could not reasonably be expected to have a
Borrower Material Adverse Effect).
<PAGE>
SECTION 4.07. Investment Company Act. No Company is an
"investment company" or a company "controlled" by an "investment
company," within the meaning of the Investment Company Act of 1940, as
amended.
SECTION 4.08. Government Regulation. No Borrower (i) is a
"holding company," or a "subsidiary company" of a "holding company,"
or an "affiliate" of a "holding company" or of a "subsidiary company"
of a "holding company," within the meaning of the Public Utility
Holding Company Act of 1935, as amended, (ii) is subject to regulation
under the Federal Power Act or the Interstate Commerce Act or (iii) is
subject to any other statute or regulation which regulates the
incurrence of indebtedness for borrowed money, other than Federal and
state securities laws.
SECTION 4.09. True and Complete Disclosure. All information
heretofore or contemporaneously furnished by or on behalf of any
Company (including all information contained in the Documents, the
Confidential Information Memorandum and the annexes, schedules and
other attachments thereto but not including the Projected Financial
Statements), when taken together with TWI's and TWE's Annual Reports
on Form 10-K for the fiscal year ended December 31, 1994, TWI's and
TWE's Quarterly Reports on Form 10-Q for the fiscal quarter ended
March 31, 1995 and TWI's and TWE's Current Reports on Form 8-K each
dated April 1, 1995 and May 30, 1995, is, and all other such
information hereafter furnished, including all information contained
in any of the Documents, including any annexes or schedules thereto,
by or on behalf of any Company to or on behalf of any Lender is and
will be (as of their respective dates, the Effective Date and the
Closing Date), true and accurate in all material respects and not
incomplete by omitting to state anything necessary to make such
information not misleading at such time. There is no fact of which any
Borrower is aware which has not been disclosed to the Lenders in
writing pursuant to the terms of this Agreement prior to the date
hereof and which, singly or in the aggregate with all such other facts
of which such Borrower is aware, could reasonably be expected to have
a Borrower Material Adverse Effect or a TWI Material Adverse Effect.
All statements of fact and representations concerning the present and
anticipated business, operations and assets of each Company, the
Documents and the transactions referred to therein are true and
correct in all material respects, and all assumptions with respect
thereto contained therein are reasonable in all material respects.
<PAGE>
SECTION 4.10. Applicable Transaction Documents. (a) There
has heretofore been delivered to each Lender a complete and correct
copy of each Applicable Transaction Document. Each Applicable
Transaction Document is in full force and effect, without amendment,
modification, waiver or forbearance in any manner inconsistent with
Section 3.02(d)(i), 3.03(g), 5.10 or 6.12 by or on behalf of any
Borrower or any party thereto without the prior written consent of the
Administrative Agent and the Required Lenders. The Applicable
Transaction Documents constitute all material agreements and
understandings of the parties thereto relating to the subject matter
thereof. All conditions (other than conditions that are not within the
control or power of TWI and its Subsidiaries) precedent to the
consummation of the Applicable Transaction contained in the Applicable
Transaction Documents and the Credit Documents have been or will be
fulfilled on or prior to the Applicable Transaction Date (without
amendment, modification, waiver or forbearance in a manner
inconsistent with Section 3.02(d)(i), 3.03(g), 5.10 or 6.12 by or on
behalf of any Borrower or any party thereto without the prior written
consent of the Administrative Agent and the Required Lenders), and
there has been no material breach or default of any provision of any
Applicable Transaction Document.
(b) All representations and warranties set forth in the
Applicable Transaction Documents by the parties thereto were true and
correct in all material respects as of the time as of which such
representations and warranties were made and are true and correct in
all material respects on the Applicable Transaction Date (except to
the extent that such representations and warranties expressly relate
to an earlier date) as if such representations and warranties were
made on and as of such date and all covenants therein of each such
party have been and are being complied with in all material respects
(without amendment, modification, waiver or forbearance in any manner
inconsistent with Section 3.02(d)(i), 3.03(g), 5.10 or 6.12 by or on
behalf of any Borrower or any party thereto without the prior written
consent of the Administrative Agent and the Required Lenders) (it
being understood that the Borrowers make the foregoing representation
and warranty to their respective knowledge with respect to
representations by parties to the Applicable Acquisition Documents
that are not TWI or any of its Subsidiaries).
SECTION 4.11. Consents. Except as specified in Schedule
4.11, all necessary material governmental and third party approvals in
connection with the Acquisitions, the
<PAGE>
Transfers, the transactions contemplated by this Agreement and the
other transactions contemplated by, or referred to in, the Transaction
Documents have been or, prior to the time when required will have
been, obtained and remain in effect. All applicable waiting periods
have or, prior to the time when required, will have expired without,
in all such cases, any action being taken by any competent authority
which restrains, prevents or imposes materially adverse conditions
upon or unduly hinders the consummation of the Applicable Transaction
or the other transactions contemplated hereby or by the Applicable
Transaction Documents, and there does not exist any judgment, order,
injunction or other restraint issued or filed by a court of competent
jurisdiction with respect to the consummation of the Applicable
Transaction or the making of Loans, or the performance by any Company
of its obligations under any of the Applicable Transaction Documents
or the Credit Documents. All actions pursuant to or in furtherance of
the Applicable Transaction have been and will be taken in all material
respects in compliance with all applicable laws.
SECTION 4.12. Financial Condition; Financial Statements. (a)
On and as of the Closing Date and the Applicable Transaction Date,
after giving effect to all Indebtedness and other obligations to be
Incurred by the Companies on such date, (i) no final judgments against
any Company in actions for money damages with respect to pending or
threatened litigation will have been rendered in an amount such that
such Company will be unable to satisfy any such judgments promptly in
accordance with their terms (taking into account the maximum
reasonable amount of such judgments in any such actions and the
earliest reasonable time at which such judgments might be rendered),
(ii) the sum of the assets, at a fair valuation, of each Borrower will
exceed its debts, (iii) no Borrower will have incurred or intended to,
or believe that it will, incur debts beyond its ability to pay such
debts as such debts mature and (iv) each Borrower will have sufficient
capital with which to conduct its business. For purposes of this
Section 4.12, "debt" means any liability on a claim, and "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 payment, whether or not
such right to an equitable remedy is reduced to judgment, fixed,
contingent, matured, unmatured, disputed, undisputed, secured or
unsecured.
<PAGE>
(b) There has been delivered to each Lender a true and
complete copy of each of the following:
(i) with respect to TWI, (x) audited Financial
statements for the fiscal year ended December 31, 1994 and
(y) unaudited Financial Statements for the fiscal quarter
ended March 31, 1995;
(ii) with respect to TWE, (x) audited Financial Statements
and unaudited Adjusted Financial Statements for the fiscal year
ended December 31, 1994 and (y) unaudited Financial Statements
and Adjusted Financial Statements for the fiscal quarter ended
March 31, 1995;
(iii) with respect to TWEAN, a pro forma balance sheet as
at March 31, 1995, based on the same assumptions that were used
in preparing the pro forma financial statements included in the
Current Reports on Form 8-K of TWI and TWE dated April 1, 1995
and May 30, 1995;
(iv) with respect to TWI Cable, a pro forma balance sheet
as at March 31, 1995, based on the same assumptions that were
used in preparing the pro forma financial statements included in
the Current Reports on Form 8-K of TWI and TWE dated April 1,
1995 and May 30, 1995;
(v) with respect to each Borrower, the projected
Financial Statements for each of the fiscal years 1995 through
2000, inclusive (the "Projected Financial Statements"),
including projections of the aggregate amount of Loans to be
outstanding to such Borrower as at the end of each such fiscal
year (assuming no changes in this Agreement), which Projected
Financial Statements are contained in the Confidential
Information Memorandum;
(vi) with respect to each of the Acquired Cable
Businesses, (x) audited Financial Statements of such Acquired
Cable Business for each of the two fiscal years immediately
preceding the Closing Date and (y) unaudited Financial
Statements of such Acquired Cable Business for the fiscal
quarter ended March 31, 1995;
(vii) TWI's and TWE's Current Reports on Form 8-K, each
dated May 30, 1995, which contain pro forma financial
information reflecting the pro forma effect of the formation of
TWEAN, the CVI Acquisition, the KBLCOM Acquisition and the
Summit Acquisition as of and for the year ended
<PAGE>
December 31, 1994 and as of and for the quarter ended March
31, 1995; and
(viii) TWI's and TWE's Annual Reports on Form 10-K for the
fiscal year ended December 31, 1994 and TWI's and TWE's
Quarterly Reports on Form 10-Q for the fiscal quarter ended
March 31, 1995.
(c) All Financial Statements (other than the Adjusted
Financial Statements) delivered to the Lenders pursuant to Sections
4.12(b)(i), (ii) and (vi) and 5.01(a) have been prepared in accordance
with GAAP, except, in the case of unaudited Financial Statements, for
normal recurring year-end adjustments and the absence of footnote
disclosures. All such Financial Statements present fairly the
consolidated financial position, results of operations and cash flows
of the Persons to whom they pertain as of each date or for each period
to which they relate.
(d) All pro forma balance sheets delivered to the Lenders
pursuant to Section 4.12(b)(iii) and (iv) and all pro forma financial
information included in the Current Reports on Form 8-K delivered
pursuant to Section 4.12(b)(vii) comply in form in all material
respects with the applicable accounting requirements of Rule 11-02 of
Regulation S-X. The assumptions made in preparing such pro forma
Financial Statements are reasonable as of the Effective Date, the
Closing Date and the date of such Financial Statements.
(e) The Projected Financial Statements of each Borrower have
been prepared by management of such Borrower on the basis of
assumptions set forth therein that such management reasonably believed
were reasonable at the date of such Projected Financial Statements,
the Effective Date and the Closing Date in light of the historical
financial performance of the Companies and the Acquired Cable
Businesses and of then current and reasonably foreseeable business
conditions.
(f) No Company has, as of the dates of the Financial
Statements delivered hereunder, the Effective Date or the Closing
Date, any material Contingent Obligations, contingent liability or
liability for taxes, long-term lease or unusual forward or long-term
commitment which is not reflected in such Financial Statements or the
notes thereto that is required to be reflected in accordance with
GAAP.
<PAGE>
(g) Since March 31, 1995, no event has occurred, no
condition exists and no event or condition has become known that
singly or in the aggregate with all such other events and conditions,
could reasonably be expected to have a Borrower Material Adverse
Effect.
SECTION 4.13. Tax Returns and Payments. Each Company has
filed all federal income tax returns and reports and all other
material tax returns and reports, domestic and foreign, required to be
filed by it and has paid all material taxes and assessments payable by
it which have become due, other than those not yet delinquent and
except for those contested in good faith and by proper proceedings
with adequate reserves maintained in respect thereof to the extent
required by GAAP. Each Company has paid, or has provided adequate
reserves in accordance with GAAP for the payment of, all federal,
state, local and foreign income taxes and all other material taxes
applicable to all prior fiscal years and for the current fiscal year
to the date of this representation and warranty.
SECTION 4.14. Compliance with ERISA. Except to the extent
the breach of one or more of the following representations and
warranties could not, singly or in the aggregate, reasonably be
expected to have a Borrower Material Adverse Effect, each ERISA Entity
has fulfilled its obligations under the minimum funding standards of
ERISA and the Code (without regard to any waiver under Section 412(d)
of the Code) with respect to each Pension Plan, made all required
contributions to each Multiemployer Plan, and is in compliance with
the presently applicable provisions of ERISA and the Code, and has not
incurred and is not reasonably expected to incur any liability to the
PBGC or a Pension Plan under Title IV of ERISA (other than for
premiums due). The aggregate Unfunded Current Liability of all Pension
Plans (excluding each Pension Plan with an amount of Unfunded Current
Liabilities of zero or less) does not exceed $50,000,000. No ERISA
Entity has incurred or reasonably expects to incur any withdrawal
liability under Title IV of ERISA to any Multiemployer Plan which
could, singly or in the aggregate, reasonably be expected to have a
Borrower Material Adverse Effect. The aggregate potential withdrawal
liability, as determined in accordance with Title IV of ERISA, of the
ERISA Entities with respect to all Multiemployer Plans, if incurred,
could not, singly or in the aggregate, reasonably be expected to have
a Borrower Material Adverse Effect. No ERISA Entity has or reasonably
expects to become subject to a Lien in favor of, or requirement to
provide security to, any
<PAGE>
Pension Plan under Section 302(f) or 307 of ERISA or Section
401(a)(29) or 412(n) of the Code. No "prohibited transactions" within
the meaning of Section 406 of ERISA or Section 4975 of the Code have
occurred or are reasonably expected to occur (including as a result of
the Applicable Transaction), which could, singly or in the aggregate,
reasonably be expected to have a Borrower Material Adverse Effect.
SECTION 4.15. Compliance with Statutes, Etc. Each Company is
in compliance with all applicable statutes, regulations and orders of,
and all applicable restrictions imposed by, all Governmental
Authorities (including those relating to pollution and environmental
standards and controls, equal employment opportunity and employee
safety) in respect of the conduct of its business and the ownership of
its property other than those the non-compliance with which, singly or
in the aggregate, could not reasonably be expected to have a Borrower
Material Adverse Effect.
SECTION 4.16. Properties. Each Borrower and its Subsidiaries
have good and valid title to all material properties owned by them
including, on and after the Closing Date, all material property (other
than any Beneficial Assets) reflected in the consolidated balance
sheets of such Borrower and its Subsidiaries referred to in Section
4.12 free and clear of all Liens, other than as permitted by Section
6.03. Except as set forth on Schedule 4.16, a Guarantor will have good
and valid title to all Material Beneficial Assets on and after the
Closing Date.
SECTION 4.17. Foreign Trade Regulations. No Company is (i) a
Person included within the definition of "designated foreign country"
or "national" of a "designated foreign country" in Executive Order No.
9193, as amended, in the Foreign Assets Control Regulations (31
C.F.R., Chapter V, Part 500, as amended) or in the Cuban Assets
Control Regulations of the United States Treasury Department (31
C.F.R., Chapter V, Part 515, as amended) or within the meanings of any
of said Orders or Regulations, or of any regulations, interpretations
or rulings issued thereunder, or in violation of any of said Orders or
Regulations or of any regulations, interpretations or rulings issued
thereunder; or (ii) an entity listed in Section 520.101 or 550.304 of
the Foreign Funds Control Regulations (31 C.F.R., Chapter V, Parts 520
and 550, as amended, respectively).
<PAGE>
SECTION 4.18. Partnership Tax Matters. As of the Closing
Date, each of TWE and TWEAN will be treated as a partnership for
federal income tax purposes, and not as a publicly traded partnership
within the meaning of Section 7704 of the Code.
SECTION 4.19. Beneficial Assets. (a) The fair market value
(in the reasonable good faith judgment of TWE) at the Closing Date of
all TWE Beneficial Assets (without duplication) will not exceed
$2,000,000,000. Schedule 4.19A sets forth a complete and accurate list
of all TWE Material Beneficial Assets and the holders thereof. Except
as set forth in Schedule 4.19A, all TWE Material Beneficial Assets are
directly held by TWE Partner Guarantors or Holder Guarantors. The fair
market value, as of the Closing Date, of all TWE Beneficial Assets
held by Persons other than TWE Partner Guarantors or Holder Guarantors
does not exceed $100,000,000 in the aggregate.
(b) The fair market value (in the reasonable good faith
judgment of TWEAN) at the Closing Date of all TWEAN Beneficial Assets
(without duplication) will not exceed $2,000,000,000. Schedule 4.19B
sets forth a complete and accurate list of all TWEAN Material
Beneficial Assets and the holders thereof. Except as set forth in
Schedule 4.19B, all TWEAN Material Beneficial Assets are directly held
by Guarantors of TWEAN's Obligations. The fair market value, as of the
Closing Date, of all TWEAN Beneficial Assets held by Persons other
than Guarantors of TWEAN's Obligations does not exceed $400,000,000 in
the aggregate, and the number of subscribers constituting TWEAN
Material Beneficial Assets held by Persons other than Guarantors of
TWEAN's Obligations does not exceed 115,000.
(c) The only TWE Material Beneficial Asset directly held by
WCI is set forth on Schedule 4.19C.
SECTION 4.20. Summit Acquisition. A true and complete copy
of each Summit Acquisition Document has been delivered to each Lender.
The Summit Acquisition has been consummated in accordance with the
terms of the Summit Acquisition Documents without amendment,
modification, waiver or forbearance of any of such terms.
SECTION 4.21. Guarantees. (a) On and after the date of
repayment in full of the Summit Assumed Indebtedness, the Subsidiaries
of Summit Communications Group that have not delivered a Subsidiary
Guarantee pursuant to Section 5.12 have less than 15% of the
subscribers of Summit in the aggregate.
<PAGE>
On and after the closing of the CVI Acquisition, the Subsidiaries of
Cablevision Industries Corporation that have not delivered a
Subsidiary Guarantee have less than 15% of the subscribers of CVI in
the aggregate. On and after the closing of the KBLCOM Acquisition, the
Subsidiaries of KBLCOM Incorporated that have not delivered a
Subsidiary Guarantee have less than 15% of the subscribers of KBLCOM
in the aggregate.
(b) Schedule C sets forth a true and complete list of all
the Persons that are required to be Guarantors hereunder.
ARTICLE V
AFFIRMATIVE COVENANTS
Each Borrower covenants and agrees (for itself and its
Subsidiaries only) that on the Closing Date (or, with respect to
Section 5.01(a) and (d), on the Effective Date) and thereafter for so
long as this Agreement is in effect and until the Commitments have
terminated and the Loans and the Notes, together with interest, Fees
and all other Obligations, are paid in full (but with respect to such
other Obligations only to the extent that actual amounts hereunder are
owing at the time the Loans and the Notes, together with interest and
Fees, have been paid in full):
SECTION 5.01. Information Covenants. Such Borrower will
furnish to each Lender (it being understood that information with
respect to TWI pursuant to paragraph (a) or (d) below shall be
provided by TWE):
(a) Financial Statements. As soon as available, and in any
event within sixty (60) days after the close of each of the
first three fiscal quarters and within one hundred (100) days
after the close of each fiscal year of such Borrower and of TWI,
Financial Statements and Adjusted Financial Statements for such
fiscal quarter or fiscal year, as the case may be, of such
Borrower and of TWI, in each case setting forth comparative
figures for the related period in the prior fiscal year, all of
which shall be certified by the chief financial officer,
controller, chief accounting officer or other Authorized Officer
of such Borrower, subject to changes resulting from audit and
normal year-end audit adjustments and, in the case of the fiscal
year Financial Statements (other than the Adjusted Financial
Statements), accompanied by a
<PAGE>
report of Ernst & Young (or other certified independent
accountants of national standing), unqualified as to scope, that
such Financial Statements have been prepared in accordance with
GAAP; provided, however, that if the independent accountants of TWEAN
shall agree and if it shall be in accordance with GAAP, (i) for each fiscal
quarter ending prior to June 30, 1996, the Financial Statements of
TWEAN delivered in accordance with this Section 5.01(a) shall not be
required to include comparative figures for the related period in the
prior fiscal year and (ii) in lieu of delivering audited Financial
Statements of TWEAN for the fiscal year ended December 31, 1995 in
accordance with this Section 5.01(a), TWEAN may deliver audited
Financial Statements for the 9 months ended December 31, 1995.
(b) Compliance Certificate. At the time of the delivery of
Financial Statements pursuant to Section 5.01(a), an Officers'
Certificate substantially in the form of Exhibit K to the effect
that no Default or Event of Default exists or, if any Default or
Event of Default does exist, specifying the nature and extent
thereof, and setting forth in reasonable detail whether such
Borrower and its Subsidiaries were in compliance with Section
6.11, and also setting forth (i) the computation of the ratio
described in Section 6.04(b) as of the last day of the fiscal
period covered by such Financial Statements, (ii) in the case of
TWE, a list of the TWE Material Beneficial Assets then still
held by TWI and its Affiliates, (iii) in the case of TWEAN, a
list of the TWEAN Material Beneficial Assets held by TWEAN
Partners and their Affiliates and (iv) the calculation of such
Borrower's Maximum Permitted Indebtedness.
(c) Notice of Default or Litigation. Promptly, and in any
event within ten days after such Borrower obtains knowledge
thereof, notice of (x) the occurrence of any event or the
existence of any condition that constitutes a Default or Event
of Default, which notice shall specify the nature thereof, the
period of existence thereof (to the extent known) and what
action such Borrower proposes to take with respect thereto and
(y) any pending action, suit or proceeding that would, if in
existence on the date hereof, be required to be set forth in
Schedule 4.04 in order to make the representations and
warranties in Section 4.04 correct.
<PAGE>
(d) Other Information. Promptly upon transmission thereof,
copies of any public filings and registrations with, and public
reports to, the SEC by TWI or such Borrower or any of its
Subsidiaries with respect to their respective securities (other
than registration statements on Form S-8, filings under Section
16(a) of the Exchange Act and routine filings relating to
employee benefit plans) and, to the extent not previously
provided to the Lenders, copies of all financial statements,
proxy statements, material notices and reports provided by TWI
or such Borrower or any of its Subsidiaries to its shareholders
or debentureholders and, with reasonable promptness, such other
information or documents (financial or otherwise) as the
Administrative Agent or the Required Lenders, in each case
acting on behalf of the Lenders, may reasonably request from
time to time, including consolidating and product line financial
information and quarterly cable television statistical data.
(e) Interest Rate Certificates. (i) Within sixty (60) days
after the close of each of the first three fiscal quarters and
within one hundred (100) days after the close of each fiscal
year of such Borrower, an Interest Rate Certificate setting
forth the Debt Ratings and the Leverage Ratio as at the end of
such fiscal quarter or fiscal year.
(ii) Within five (5) Business Days after any change in any
Debt Rating of such Borrower, an Interest Rate Certificate
setting forth the new Debt Rating and the effective date
thereof.
(iii) On the date of each Testable Event with respect to
such Borrower, an Interest Rate Certificate setting forth the
Leverage Ratio determined on a Pro Forma Basis.
SECTION 5.02. Books, Records and Inspections. Such Borrower
will keep, and will cause each of its Subsidiaries to keep, proper
records and books of account. Such Borrower will, and will cause each
of its Subsidiaries to, upon reasonable prior notice to the chief
financial officer, controller or any other Authorized Officer of such
Borrower, permit officers and designated representatives of the
Administrative Agent or the Required Lenders to visit and inspect any
of the properties or assets of such Borrower and its Subsidiaries, and
to examine the books of account of such Borrower and its Subsidiaries
and discuss the affairs, finances and accounts of such Borrower and
<PAGE>
its Subsidiaries with, and be advised as to the same by, its and their
officers and independent accountants, all at such reasonable times and
intervals and to such reasonable extent as the Administrative Agent or
the Required Lenders may desire.
SECTION 5.03. Insurance. Such Borrower will, and will cause
each of its Subsidiaries to, at all times maintain in full force and
effect insurance with financially sound and reputable insurers in such
amounts, covering such risks and liabilities and with such deductibles
or self-insured retentions as are in effect at the date hereof with
respect to its respective businesses (or at the date of Acquisition
thereof in the case of the Acquired Cable Businesses) or as are
otherwise commercially reasonable at such time.
SECTION 5.04. Payment of Taxes. Such Borrower will pay and
discharge, and will cause each of its Subsidiaries to pay and
discharge, all material taxes, assessments and governmental charges or
levies imposed upon it or, to the extent such Borrower or such
Subsidiary, respectively, is liable therefor, upon its income or
profits, or upon any properties belonging to it, prior to the date on
which penalties attach thereto, and all claims which, if unpaid, might
become a Lien or charge upon any properties of such Borrower or such
Subsidiary; provided, however, that no Company shall be required to
pay any such tax, assessment, charge, levy or claim which is being
contested in good faith and by proper proceedings with adequate
reserves maintained in respect thereof to the extent required by GAAP.
SECTION 5.05. Partnership or Corporate Rights and Authority.
Such Borrower will do, and will cause each of its Material
Subsidiaries to do, or cause to be done, all things necessary to
preserve and keep in full force and effect its existence, material
corporate rights, corporate licenses, corporate franchises and
authority; provided, however, that any transaction not prohibited by
Section 6.02 will not constitute a breach of this Section 5.05.
SECTION 5.06. Compliance with Statutes, Etc. Such Borrower
will, and will cause each of its Subsidiaries to, comply with all
applicable statutes, regulations and orders of, and all applicable
restrictions imposed by, all Governmental Authorities (including those
relating to pollution and environmental standards and controls, equal
employment opportunity and employee safety), in respect of the conduct
of its business and the ownership of its property other than those the
<PAGE>
non-compliance with which, singly or in the aggregate, could not
reasonably be expected to have a Borrower Material Adverse Effect.
SECTION 5.07. ERISA. As soon as possible and, in any event,
within thirty (30) days after such Borrower or any of its ERISA
Affiliates knows or has reason to know any of the following, such
Borrower will deliver to each Lender a certificate of the chief
financial officer of such Borrower setting forth details as to such
occurrence and such action, if any, which such Borrower or such ERISA
Affiliate is required or proposes to take, together with any notices
required or proposed to be given to or filed with or by such Borrower,
such ERISA Affiliate, the PBGC, or the Plan administrator with respect
thereto: that a Reportable Event has occurred; that an accumulated
funding deficiency (within the meaning of Section 302 of ERISA or
Section 412 of the Code) has been incurred or an application has been
or is reasonably expected to be made to the Secretary of the Treasury
for a waiver or modification of the minimum funding standards
(including any required installment payments) or an extension of any
amortization period under Section 412 of the Code with respect to a
Pension Plan; that a Pension Plan which has an Unfunded Current
Liability has been or is reasonably expected to be terminated,
reorganized, partitioned or declared insolvent under Title IV of
ERISA; such Borrower has incurred or is reasonably expected to incur a
material tax or penalty under Section 4975 of the Code or Section
502(i) of ERISA; such Borrower or any of its ERISA Affiliates incurs
or is reasonably expected to incur a statutory Lien under ERISA; that
a proceeding has been instituted pursuant to Section 515 of ERISA to
collect a delinquent material contribution to a Multiemployer Plan; or
that such Borrower or any of its ERISA Affiliates will or is
reasonably expected to incur any material liability (including any
contingent or secondary liability) to or on account of the termination
of or withdrawal from a Pension Plan or a Multiemployer Plan under
Section 4062, 4063, 4064, 4069, 4201 or 4204 of ERISA; provided,
however, that such event or events result or could reasonably be
expected to result in a liability of such Borrower or such ERISA
Affiliate in the aggregate in excess of $1,000,000. Upon request of
any Lender, such Borrower will deliver to such Lender a copy of
Schedule B to the most recent annual report (Form 5500) of each
Pension Plan filed with the Internal Revenue Service. In addition to
any certificates or notices delivered to the Lenders pursuant to the
first sentence hereof, copies of any notices received by such Borrower
or any of its ERISA Affiliates relating to any of the matters
described in
<PAGE>
such first sentence shall be delivered to the Lenders no later than 20
days after the date such notice has been received by such Borrower or
such ERISA Affiliate.
SECTION 5.08. Use of Proceeds. Such Borrower will (i) use
all proceeds of the Loans to it only as provided in Sections 2.01(b)
and 4.05 and (ii) pay all amounts owing, from time to time, hereunder
when due.
SECTION 5.09. Fiscal Periods; Accountants. (a) Such Borrower
will, for financial reporting purposes, cause (i) each of its fiscal
years to end on December 31 of each year, (ii) each of its fiscal
quarters to end on March 31, June 30, September 30 and December 31 of
each year and (iii) each of its Material Subsidiaries to maintain the
accounting periods maintained by such Material Subsidiary on the
Closing Date, consistent with the past practice and procedures of each
such Material Subsidiary; provided, however, that the restrictions of
clause (iii) shall not apply to entities that become Subsidiaries of
such Borrower after the date hereof or to any Foreign Subsidiary.
(b) Unless the Administrative Agent shall have otherwise
consented in writing (which consent shall not be unreasonably
withheld), such Borrower will maintain the same firm of certified
independent accountants as the other Borrowers and TWI, which firm
shall be of national standing.
SECTION 5.10. Enforcement of Rights Under Partnership
Agreements. Each of TWE and TWEAN will take all reasonable action, on
a reasonably timely basis, to enforce all of its rights against its
respective Partners and their Affiliates under the TWE Partnership
Agreement, the TWEAN Contribution Agreement or the TWEAN Partnership
Agreement, as the case may be, or otherwise, except to the extent that
a failure to do so could not reasonably be expected to have a Borrower
Material Adverse Effect (provided, however, that such exception shall
not apply with respect to the right of TWE and TWEAN (x) to receive
contribution of cash flow from TWE Material Beneficial Assets and
TWEAN Material Beneficial Assets, respectively or (y) to use their
respective best efforts to work towards the contribution of such
assets to the respective partnership).
SECTION 5.11. TWEAN Material Beneficial Assets. TWE will (i)
indemnify TWEAN and its Subsidiaries with respect to any claims
relating to or arising out of the contribution of the TWE Systems and
related transactions pursuant to the TWEAN
<PAGE>
Contribution Agreement, (ii) cause each holder of TWEAN Material
Beneficial Assets that is an Affiliate of TWE to comply with each and
every covenant or other provision of this Agreement applicable to such
holder and (iii) use its best efforts (subject to its reasonable
business judgment) to continue to seek all relevant authorizations,
orders, approvals and franchises with respect to the TWE Systems
(including the TWEAN Beneficial Assets), and to contribute any assets
contemplated to be transferred to TWEAN but not so transferred as of
the Closing Date (subject to Section 6.7 of the TWEAN Contribution
Agreement).
SECTION 5.12. Subsidiary Guarantees. Without in any way
limiting the requirements of Section 3.01(i), 3.02(e) or 3.03(h), such
Borrower will cause each of its Wholly Owned Restricted Subsidiaries
that is, or together with any other such Subsidiary not already party
to a Subsidiary Guarantee would be, a Material Subsidiary to execute
and deliver a Subsidiary Guarantee (it being understood that
Subsidiaries that collectively would not be a Material Subsidiary need
not execute a Subsidiary Guarantee unless any such Subsidiary conducts
a business that is part of that conducted by another Subsidiary that
executes or is required to execute a Subsidiary Guarantee); provided,
however, that this sentence shall not apply to (i) Six Flags or any of
its Subsidiaries, (ii) the Acquired Cable Businesses or (iii) any
Subsidiary that is (a) a Foreign Subsidiary or (b) a domestic
Subsidiary whose only assets are (x) the capital stock of one or more
Foreign Subsidiaries or (y) foreign business operations. If at any
time the Summit Assumed Indebtedness shall be repaid in full, TWI
Cable (or the Transferee Borrower, as the case may be) shall cause
each Subsidiary of Summit to execute and deliver a Subsidiary
Guarantee simultaneously with or promptly after such repayment;
provided, however, that Subsidiaries of Summit Communications Group
having less than 20,000 subscribers shall not be required to deliver a
Subsidiary Guarantee if Subsidiaries of Summit Communications Group
that deliver such a Guarantee shall own more than 85% of the
subscribers of Summit. Each such Subsidiary Guarantee shall be
delivered together with board resolutions authorizing the same and an
opinion of counsel as to its due authorization, execution, delivery
and enforceability (with customary exceptions), to the Administrative
Agent.
<PAGE>
ARTICLE VI
NEGATIVE COVENANTS
Each Borrower hereby covenants and agrees (except as to
Section 6.11(c), for itself and its Subsidiaries only) that, as of the
Closing Date, and thereafter for so long as this Agreement is in
effect and until the Commitments have terminated and the Loans and the
Notes, together with interest, Fees and all other Obligations, are
paid in full (but with respect to such other Obligations only to the
extent that actual amounts hereunder are owing at the time the Loans
and the Notes, together with interest and Fees, have been paid in
full):
SECTION 6.01. Changes in Business. Such Borrower will not,
and will not cause or permit any of its Material Subsidiaries to,
directly or indirectly, alter in a fundamental and substantial manner
the character or scope of the businesses of such Borrower and its
Subsidiaries taken as a whole from that conducted by its respective
businesses immediately prior to the Closing Date (other than as would
occur as a result of any Acquisition or Transfer).
SECTION 6.02. Mergers, Etc. (a) Such Borrower will not, and
will not cause or permit any of its Subsidiaries to, directly or
indirectly, singly or in the aggregate, sell, transfer or otherwise
dispose of all or a substantial portion of such Borrower's
consolidated assets (other than in a Transfer).
(b) Such Borrower will not, directly or indirectly, cause or
suffer the wind up, liquidation or dissolution of its affairs (other
than, in the case of TWE or TWEAN, a temporary dissolution immediately
followed by reformation deemed to occur because of a transfer of a
Partnership Interest); provided, however, that if (x) all Loans to
TWEAN have been or are being repaid in full (together with all
interest thereon and all other amounts then owing in respect thereof)
and (y) the Borrowing Cap of TWEAN is permanently reduced to $0, TWEAN
may be dissolved or liquidated in accordance with the terms of the
TWEAN Partnership Agreement.
(c) Such Borrower will not enter into a transaction of
consolidation or merger unless (i) before and after giving effect on a
Pro Forma Basis to such consolidation or merger, no Default or Event
of Default shall have occurred and be
<PAGE>
continuing and (ii) such Borrower shall survive the consolidation or
merger; provided, however, that, in connection with the KBLCOM
Acquisition, TWI Cable may merge with and into KBLCOM Incorporated,
which shall be renamed TWI Cable Inc. and shall assume, on terms
satisfactory to the Administrative Agent, all of TWI Cable's rights,
obligations and liabilities under the Credit Documents.
(d) No holder of TWE Material Beneficial Assets shall enter
into a transaction of consolidation or merger with any Person;
provided, however, that, if before and after giving effect thereto, no
Default or Event of Default shall have occurred and be continuing, the
foregoing clause shall not prohibit a consolidation or merger with (i)
a TWE Partner Guarantor, (ii) any Person that holds TWE Material
Beneficial Assets or (iii) any other Person that guarantees the
Obligations of TWE on terms reasonably satisfactory to the
Administrative Agent. No holder of TWEAN Material Beneficial Assets
(other than Advance, Newhouse or Advance/Newhouse) shall enter into a
transaction of consolidation or merger with any Person; provided,
however, that, if before and after giving effect thereto, no Default
or Event of Default shall have occurred and be continuing, the
foregoing clause shall not prohibit (x) a consolidation or merger with
another Person that holds TWEAN Material Beneficial Assets or (y) a
merger that complies with clause (i), (ii) or (iii) above.
SECTION 6.03. Liens. (a) Such Borrower will not, and will
not cause or permit any of its Restricted Subsidiaries to, create,
incur, assume or suffer to exist any Lien upon or with respect to any
property or assets (whether real or personal, tangible or intangible
and whether now owned or hereafter acquired) other than any of the
following:
(i) Liens listed in Schedule 6.03;
(ii) Liens (including security interests arising under or
in connection with Capital Leases) securing Indebtedness or
other obligations otherwise permitted to be outstanding
hereunder, so long as at the time of the securing of any such
Indebtedness or other obligations, the aggregate amount of such
secured Indebtedness or other obligations of such Borrower and
its Restricted Subsidiaries in the aggregate does not exceed 10%
(5% in the case of TWI Cable) of such Borrower's Maximum
Permitted Indebtedness (calculated on a Pro Forma Basis);
provided, however, that the fair market value of all assets
subject to Liens under this clause (ii) shall not at the time of
<PAGE>
creation of any such Lien exceed 120% of the total amount of
Indebtedness so secured (it being understood that the fair
market value used for the foregoing calculation shall be the
fair market value of each relevant asset at the time of creation
of the Lien with respect to such asset, without a
re-determination of such fair market value being made at the
time of creation of any subsequent Liens on any other asset);
(iii) Liens securing Indebtedness or other obligations of
any Subsidiary of such Borrower to such Borrower or to a Wholly
Owned Restricted Subsidiary of such Borrower or Liens securing
Indebtedness or other obligations of an Unrestricted Subsidiary
to a Restricted Subsidiary;
(iv) Liens on interests in or investments in any Non-
Recourse Entity securing Indebtedness or other obligations of
such Non-Recourse Entity; and
(v) with respect to TWE, Liens to secure Film Financings
permitted under Section 6.04(a)(iii)(1); provided, however, that
such Liens shall extend only to the property or assets acquired
with such Film Financing.
(b) Notwithstanding any provision to the contrary herein, at
no time shall the Capital Stock owned by any Borrower and its
Subsidiaries of any Restricted Material Subsidiary (other than Six
Flags and TWEAN) of such Borrower be subject to any Lien, other than
as permitted by Section 6.03(a)(iii) or (iv).
SECTION 6.04. Indebtedness. (a) (x) Such Borrower will not
Incur any Indebtedness unless (I) before and after giving effect
thereto on a Pro Forma Basis, no Default or Event of Default shall
have occurred and be continuing and (II) no scheduled payments of
principal in respect thereof (other than Borrowings) shall be due
before the date which is six months after the Final Maturity Date and
(y) such Borrower will not cause or permit any of its Restricted
Subsidiaries (or, in the case of TWE or TWEAN, any holder of TWE
Material Beneficial Assets or TWEAN Material Beneficial Assets, as the
case may be, other than any of the Specified Holders or any of their
respective Subsidiaries) to Incur or have outstanding any
Indebtedness; provided, however, that clauses (x)(II) and (y) shall
not apply to the following:
(i) Commercial Paper of TWE or TWEAN;
<PAGE>
(ii) Convertible Intercompany Debt of such Borrower;
provided, however, that the sum of the Convertible Intercompany
Debt and Commercial Paper, if any, of such Borrower shall not
exceed, at any time, such Borrower's Available Borrowing Cap;
(iii) with respect to TWE, its Restricted Subsidiaries
(other than TWEAN and its Subsidiaries) and holders of TWE
Material Beneficial Assets, (1) Film Financings of up to
$250,000,000 in the aggregate at any time outstanding and (2)
other Indebtedness of up to $500,000,000 in the
aggregate at any time outstanding;
(iv) with respect to TWEAN and its Restricted Subsidiaries,
(1) in the event that TWEAN shall acquire the Gerry Subs in the
Gerry Acquisition and the Gerry Assumed Indebtedness; provided,
however, that the Gerry Assumed Indebtedness shall be repaid
with the proceeds of Loans simultaneously with or immediately
after the closing of the Gerry Acquisition and (2) other
Indebtedness of up to $200,000,000 in the aggregate at any time
outstanding;
(v) with respect to TWI Cable and its Restricted
Subsidiaries, (1) the Summit Assumed Indebtedness, the CVI
Assumed Indebtedness, the KBLCOM Assumed Indebtedness, and in
the event that TWI Cable shall acquire the Gerry Subs in the
Gerry Acquisition, the Gerry Assumed Indebtedness and any
refinancing thereof; provided, however, that the terms of the
refinancing Indebtedness shall be no more onerous to TWI Cable
and its Subsidiaries than the Indebtedness so refinanced;
provided, further, however, that the CVI Assumed Indebtedness
(other than the 9-1/4% Senior Debentures due 2008 of CVI and the
10-3/4% Senior Notes due 2002 of CVI), the KBLCOM Assumed
Indebtedness and the Gerry Assumed Indebtedness shall be repaid
with the proceeds of Loans simultaneously with or immediately
after the closing of the CVI Acquisition, the KBLCOM Acquisition
and the Gerry Acquisition, respectively, and (2) other
Indebtedness of up to $50,000,000 in the aggregate at any time
outstanding; and
(vi) Acquired Indebtedness;
provided, further, however, that all Indebtedness (other than the
Indebtedness described in clauses (i), (iii)(1), (iv)(1) and (v)(1))
shall, by its terms, be prepayable at any time
<PAGE>
without a premium or penalty in excess of 3.0% of the amount so being
prepaid (other than customary LIBOR breakage costs).
(b) Notwithstanding anything to the contrary in Section
6.04(a), neither TWI Cable nor TWE shall, nor shall TWI Cable or TWE
cause or permit any of its respective Restricted Subsidiaries (other
than TWEAN and its Subsidiaries) to, Incur any Indebtedness if, after
giving effect thereto, the Leverage Ratio of TWI, determined on a Pro
Forma Basis, would exceed 7.0:1.0.
SECTION 6.05. Investments. Such Borrower will not, and will
not cause or permit any of its Restricted Subsidiaries to, make any
Investment if, before or after giving effect thereto on a Pro Forma
Basis, a Default or Event of Default shall have occurred and be
continuing.
SECTION 6.06. Restricted Payments. (a) TWEAN will not, and
will not cause or permit any of its Restricted Subsidiaries to,
directly or indirectly, make or declare any Restricted Payment;
provided, however, that TWEAN and its Restricted Subsidiaries may make
any Restricted Payment in cash or Cash Equivalents if (i) before and
after giving effect thereto on a Pro Forma Basis, no Default or Event
of Default shall have occurred and be continuing and (ii) TWEAN shall
have delivered an Officers' Certificate to the Administrative Agent,
in form and substance reasonably satisfactory to the Administrative
Agent, to the effect that (x) at the time of such Restricted Payment
and after giving effect thereto on a Pro Forma Basis and (y) in the
reasonable judgment and estimation of the signers of such certificate,
as of the end of the next succeeding four fiscal quarters (after
giving pro forma effect to all contemplated (A) Incurrences of
Indebtedness (including Borrowings) and (B) capital expenditures), the
Leverage Ratio of TWEAN would not exceed 3.5:1.0; provided, further,
however, that TWEAN may distribute to the TWEAN Partners (in
accordance with their respective TWEAN Partnership Interests) (1)
$111,000,000 in cash on the Closing Date if, after giving effect to
such distribution on a Pro Forma Basis, no Default or Event of Default
shall have occurred and be continuing and (2) $50,000,000 in cash
during each year beginning with the year commencing on March 31, 1995
if, before and after giving effect to such distribution on a Pro Forma
Basis, no Default or Event of Default shall have occurred and be
continuing.
(b) TWE will not, and will not cause or permit any of its
Restricted Subsidiaries to, directly or indirectly, make
<PAGE>
or declare any Restricted Payment; provided, however, that TWE or any
of its Restricted Subsidiaries may make any Restricted Payment in cash
or Cash Equivalents if (i) before and after giving effect thereto on a
Pro Forma Basis, no Default or Event of Default shall have occurred
and be continuing and (ii) TWE shall have delivered an Officers'
Certificate to the Administrative Agent, in form and substance
reasonably satisfactory to the Administrative Agent, to the effect
that (x) at the time of such Restricted Payment and after giving
effect thereto on a Pro Forma Basis, and (y) in the reasonable
judgment and estimation of the signers of such certificate, as of the
end of the next succeeding four fiscal quarters (after giving pro
forma effect to all contemplated (A) Incurrences of Indebtedness
(including Borrowings) and (B) capital expenditures), the Leverage
Ratio of TWE would not exceed, during the periods set forth below, the
ratios set forth such periods:
Period Ratio
Closing - December 31, 1996 5.00
January 1, 1997 - December 31, 1997 4.75
January 1, 1998 - December 31, 1998 4.50
January 1, 1999 - Final Maturity Date 4.00
(c) TWI Cable will not, and will not cause or permit any of
its Restricted Subsidiaries to, directly or indirectly, make or
declare any Restricted Payment; provided, however, that TWI Cable or
any of its Restricted Subsidiaries may make any Restricted Payment in
cash or Cash Equivalents if (i) before and after giving effect thereto
on a Pro Forma Basis, no Default or Event of Default shall have
occurred and be continuing and (ii) TWI Cable shall have delivered an
Officers' Certificate to the Administrative Agent, in form and
substance reasonably satisfactory to the Administrative Agent, to the
effect that (x) at the time of such Restricted Payment and after
giving effect thereto on a Pro Forma Basis and (y) in the reasonable
judgment and estimation of the signers of such certificate, as of the
end of the next succeeding four fiscal quarters (after giving pro
forma effect to all contemplated (A) Incurrences of Indebtedness
(including Borrowings) and (B) capital expenditures), the Leverage
Ratio of TWI Cable would not exceed 3.5:1.0.
(d) Notwithstanding anything to the contrary herein, such
Borrower will not, and will not cause or permit any of its Restricted
Subsidiaries to, receive any Restricted Payment or any other
distribution or Investment (whether debt or equity)
<PAGE>
from any Affiliate, or repayment of, or return on, any such
distribution or Investment, unless, without giving effect thereto,
such Borrower would be in compliance with all covenants (x) as of the
immediately preceding fiscal quarter and (y) in the reasonable
judgment and estimation of such Borrower (as evidenced in an Officers'
Certificate in form and substance reasonably satisfactory to the
Administrative Agent), for the next succeeding fiscal quarter.
(e) The limitations in this Section 6.06 will not prevent
(x) any Company from (i) entering into any commercial transaction in
the ordinary course of its business if the terms and conditions of
such transaction are no less favorable to such Company than would be
obtainable from an unaffiliated third party, (ii) assuming any Loans
of TWI Cable (subject to the conditions of Sections 3.03 and 3.04) or
(iii) liquidating Paragon if before and after giving effect thereto on
a Pro Forma Basis, no Default or Event of Default shall have occurred
and be continuing or (y) any holder of Material Beneficial Assets
(other than TWE) from distributing or otherwise transferring any
assets other than such Material Beneficial Assets.
SECTION 6.07. Transactions with Affiliates. Such Borrower
will not, and will not cause or permit any of its Subsidiaries to,
enter into any transaction or series of transactions, whether or not
in the ordinary course of business, with any Affiliate of such
Borrower other than on terms and conditions substantially as favorable
to such Borrower or such Subsidiary as would be obtainable by such
Borrower or such Subsidiary at the time in a comparable arm's- length
transaction with a Person other than any Affiliate of such Borrower;
provided, however, that the foregoing restrictions shall not apply to
(i) transactions between Subsidiaries of such Borrower, or among such
Borrower and its Subsidiaries and with existing joint ventures, in
each case, in accordance with arrangements existing on the date hereof
or in the ordinary course of business of such Borrower and its
Subsidiaries, (ii) tax sharing agreements between such Borrower and
its Subsidiaries, (iii) payment of Management Fees, (iv) those
transactions set forth in Schedule 6.07, (v) any arrangements with
officers, directors, representatives or other employees of such
Borrower and its Subsidiaries relating specifically to employment as
such and (vi) transactions expressly permitted by Section 6.06.
SECTION 6.08. ERISA. Such Borrower will not, and will not
cause or permit any of its ERISA Affiliates to:
<PAGE>
(i) engage in any transaction which is not timely
corrected and in connection with which such Borrower or any of
its ERISA Affiliates is reasonably likely to be subject to
either a civil penalty assessed pursuant to Section 502(i) of
ERISA or a tax imposed by Section 4975 of the Code, which
penalties and taxes for all such transactions could, singly or
in the aggregate, reasonably be expected to have a Borrower
Material Adverse Effect;
(ii) permit to exist any accumulated funding deficiency
(within the meaning of Section 302 of ERISA and Section 412 of
the Code), whether or not a waiver has been obtained from the
Internal Revenue Service, with respect to any Pension Plan;
(iii) permit any failure to make contributions or any amount
of Unfunded Benefit Liabilities which creates, or with the
passage of time would create, any statutory Lien under ERISA or
the Code in favor of the PBGC or any Pension Plan or other
entity; or
(iv) permit any failure to make contributions to any
Multiemployer Plan which, singly or in the aggregate, could
reasonably be expected to have a Borrower Material Adverse
Effect.
SECTION 6.09. Assumed Indebtedness. Such Borrower will not,
and will not cause or permit any of its Subsidiaries (other than the
original issuer thereof, including in the case of the Summit Assumed
Indebtedness, Summit) to, at any time assume, or otherwise become an
obligor with respect to, any of the Assumed Indebtedness.
SECTION 6.10. Limitation on Restrictions on Subsidiary
Dividends and Other Distributions, Etc. Such Borrower will not, and
will not cause or permit any of its Restricted Subsidiaries to (other
than in the case of TWE, TWEAN), directly or indirectly, create or
otherwise cause or suffer to exist or become effective any consensual
encumbrance or consensual restriction on the ability of any of its
Subsidiaries to (a) pay dividends or make any other distributions on
its Capital Stock or any other interest or participation in its
profits owned by such Borrower or any of its Subsidiaries, (b) make
loans or advances to such Borrower or (c) transfer any of its
properties or assets (other than any restrictions in any franchise
agreement relating to such franchise and related cable system
franchise rights, and interests therein) to such
<PAGE>
Borrower, except for such encumbrances or restrictions created,
existing or which may become effective under or by reason of (i)
applicable law, (ii) non-assignment provisions of any lease governing
a leasehold interest or any other contract, (iii) any agreement or
other instrument of a Person acquired by such Borrower or any of its
Subsidiaries at the time of such acquisition, which encumbrance or
restriction is not applicable to any Person, or the properties or
assets of any Person, other than the property or assets of the Person
so acquired and was not entered into in contemplation of such
acquisition, (iv) the Credit Documents, (v) Liens permitted by this
Agreement to the extent restricting the transfer or disposition of the
assets subject to such Lien, (vi) restrictions contained in agreements
in existence on the date hereof to which such Borrower or any of its
Subsidiaries is a party or contained in instruments governing any
Assumed Indebtedness (including any extensions or renewals thereof,
but only if the restrictions in such extensions or renewals are no
more onerous than those in the original agreements), (vii)
restrictions on any Subsidiary of a Borrower contained in agreements
entered into in connection with the sale of a minority interest in
such Subsidiary; provided, however, that (a) before and after giving
effect to such sale on a Pro Forma Basis, no Default or Event of
Default shall have occurred and be continuing and (b) no such
restriction shall be adverse to the Lenders or shall reasonably be
expected to have a Borrower Material Adverse Effect and (viii)
restrictions contained in asset or stock sale agreements that relate
to the conduct of the assets or businesses being sold; provided,
however, that this Section 6.10 shall not prohibit encumbrances or
restrictions on the ability of such Borrower to make such dividends,
distributions, loans, advances or transfers.
SECTION 6.11. Financial Covenants.
(a) Leverage. Such Borrower will not cause or permit its
Leverage Ratio as of the end of any fiscal quarter (commencing with
the first fiscal quarter ending after the Closing Date), including
after giving effect on a Pro Forma Basis to any Testable Event (as
calculated on the date of such Testable Event), to exceed the ratio
set forth opposite such period below for such Borrower:
<PAGE>
Period TWE TWEAN TWI Cable
Closing Date - December 31, 1996 5.25 5.00 7.00
January 1, 1997 - December 31, 1997 5.00 5.00 7.00
January 1, 1998 - December 31, 1998 5.00 5.00 6.50
January 1, 1999 - Final Maturity Date 4.50 5.00 5.50
(b) Coverage. Such Borrower will not cause or permit its
Coverage Ratio as of the end of any fiscal quarter (commencing with
the first fiscal quarter ending after the Closing Date), including
after giving effect on a Pro Forma Basis to any Testable Event (as
calculated on the date of such Testable Event), to be less than the
ratio set forth opposite such period below for such Borrower:
Period TWE TWEAN TWI Cable
Closing Date - December 31, 1996 2.25 2.50 1.75
January 1, 1997 - December 31, 1997 2.50 2.50 1.75
January 1, 1998 - December 31, 1998 2.50 2.50 2.00
January 1, 1999 - Final Maturity Date 2.75 2.50 2.25
(c) Combined Leverage. Such Borrower will not cause or
permit the Combined Leverage Ratio as of the end of any fiscal quarter
(commencing with the first fiscal quarter ending after the Closing
Date), including after giving effect on a Pro Forma Basis to any
Testable Event (as calculated on the date of such Testable Event), to
exceed the ratio set forth opposite such period below:
Period Ratio
Closing Date - December 31, 1997 5.00
January 1, 1998 - December 31, 1998 4.75
January 1, 1999 - Final Maturity Date 4.00
SECTION 6.12. Amendment or Waiver of Organizational
Documents. Such Borrower will not cause or permit to be amended,
modified or waived, or cause or permit any of its Subsidiaries to, in
effect, amend, modify or, in any material respect, waive, any
provision of any Organizational
<PAGE>
Document, unless the Administrative Agent shall have determined, after
consultation with its counsel, that such amendment, modification or
waiver (taken as a whole, together with any other amendments,
modifications or waivers occurring at such time) are not more onerous
to the Lenders than are the Organizational Documents in effect prior
to such amendment, modification or waiver, as the case may be;
provided, however, that this Section 6.12 shall not prevent TWI Cable
or any of its Wholly Owned Subsidiaries from receiving any Partnership
Interest as partial consideration from and in the Transferee Borrower
in any Transfer.
SECTION 6.13. Certain Agreements. Such Borrower will not,
and will not cause or permit any of its Subsidiaries to, directly or
indirectly, enter into any agreement (other than the Partnership
Agreements as in effect on the Effective Date or modified in a manner
not inconsistent with this Agreement and other than this Agreement)
that would, in effect, prohibit such Borrower or any of its
Subsidiaries from granting Liens or agreeing to grant Liens; provided,
however, that any Company may enter into agreements with lenders
(including holders of debt securities) to such Company or any of its
Subsidiaries of Indebtedness for money borrowed that prohibit the
granting of Liens to third parties unless said lenders are equally and
ratably secured.
SECTION 6.14. Unrestricted Subsidiaries. (a) Schedule 6.14
sets forth (x) those Subsidiaries of each Borrower that have been
designated Unrestricted Subsidiaries and (y) each Non-Recourse Entity
of each Borrower. Such Borrower will not designate any of its
Subsidiaries an Unrestricted Subsidiary unless (i) such Subsidiary is
designated an Unrestricted Subsidiary at the time it becomes a
Subsidiary of such Borrower; (ii) none of the liabilities of such
Subsidiary are, directly or indirectly, recourse (including by way of
set-off) to any of the Companies or any of their respective assets
(other than to any Non-Recourse Entity); provided, however, that the
existence of the Six Flags Contingent Obligations shall not prevent
TWE from designating Six Flags or any of its Subsidiaries as an
Unrestricted Subsidiary or a Non-Recourse Entity, as the case may be;
and (iii) at the time such Subsidiary is designated an Unrestricted
Subsidiary, before and after giving effect to such designation on a
Pro Forma Basis (and treating such designation as if such designation
were a making of a Restricted Payment), no Default or Event of Default
shall have occurred and be continuing, as shown in an Officers'
Certificate delivered to the Administrative Agent at the time of such
designation. Such Officers' Certificate shall also state the specific
purpose for which such designation is being made.
(b) Such Borrower will not re-designate any Unrestricted
Subsidiary a Restricted Subsidiary unless at the time
<PAGE>
such Unrestricted Subsidiary is designated a Restricted Subsidiary,
before and after giving effect to such redesignation on a Pro Forma
Basis, no Default or Event of Default shall have occurred and be
continuing, as shown in an Officer's Certificate delivered to the
Administrative Agent at the time of such designation.
SECTION 6.15. Certain Guarantees. At any time during which
such Borrower is an obligor under any Indebtedness for money borrowed,
such Borrower will not permit any of its Subsidiaries to guarantee or
become or be a primary obligor on such Indebtedness or any refinancing
or replacement thereof, unless such Borrower or such Subsidiary makes
or causes to be made effective provision whereby such Borrower's
Obligations will be guaranteed by such Subsidiary equally and ratably
with any and all Indebtedness of such Borrower thereby guaranteed, for
so long as such Indebtedness shall be so guaranteed or such Subsidiary
shall act as such primary obligor on terms reasonably satisfactory to
the Administrative Agent, and no release of any such guarantees of the
Obligations shall be effective unless such other guarantees are
simultaneously released.
ARTICLE VII
EVENTS OF DEFAULT
Upon the occurrence of any of the following specified events
(each, an "Event of Default"):
SECTION 7.01. Payments. Any Borrower shall (i) default in
the payment when due of any principal of the Loans when due; or (ii)
default in the payment when due of any interest on the Loans or any
Fees or any other amounts owing under any Credit Document, which
default under this clause (ii) shall have continued unremedied for at
least five days but in no event less than three Business Days; or
SECTION 7.02. Representations, Etc. Any representation,
warranty or statement made or deemed made by, or on behalf of, any
Credit Party in any Credit Document or in any other Document or in any
statement or certificate delivered or required to be delivered
pursuant hereto or thereto shall prove to be untrue in any material
respect on the date as of which made or deemed made; or
SECTION 7.03. Covenants. Any Borrower shall (a) default in
the due performance or observance of any term,
<PAGE>
covenant or agreement contained in Section 5.08(i) or 5.12 or Article
VI, or (b) default in the due performance or observance of any term,
covenant or agreement (other than those referred to in Section 7.01 or
7.02 or clause (a) of this Section 7.03) contained in this Agreement
and such default under this clause (b) shall continue unremedied for a
period of at least 30 days after notice from the Administrative Agent
or the Required Lenders, in each case acting on behalf of the Lenders;
or
SECTION 7.04. Default Under Other Agreements. (a) Any
Borrower, any Restricted Subsidiary of any Borrower or TWI or any of
its Material Subsidiaries shall (i) default in any payment with
respect to any Indebtedness (other than the Loans) in excess of
$10,000,000 individually or $50,000,000 in the aggregate beyond the
period of grace, if any, provided in the instrument or agreement
governing such Indebtedness or (ii) default in the observance or
performance of any agreement or condition relating to any such
Indebtedness referred to in clause (i) above in excess of the
thresholds set forth therein 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 holders of
such Indebtedness (or a trustee or agent on behalf of such holder or
holders) to cause, any such Indebtedness to become due prior to its
stated maturity and such default or event or condition shall continue
beyond the period of grace, if any, provided in the instrument or
agreement governing such Indebtedness (after giving effect to any
consent or waiver obtained and then in effect thereunder); or (b) any
such Indebtedness referred to in clause (a)(i) above in excess of the
thresholds set forth therein of any Company or TWI or any of its
Material Subsidiaries shall, in accordance with its terms, be declared
to be due and payable, or required to be prepaid other than by a
regularly scheduled or required prepayment prior to the stated
maturity thereof; or
SECTION 7.05. Bankruptcy, Etc. Any Borrower, any Material
Subsidiary of any Borrower, TWI or any General Partner (each, a
"Default Entity") shall commence a voluntary case concerning itself,
or any Partner shall commence such a case concerning any Borrower,
under Title 11 of the United States Code entitled "Bankruptcy," as now
or hereafter in effect, or any successor thereto or any similar
foreign statute (the "Bankruptcy Code"); or an involuntary case is
commenced against any Default Entity and the petition is not
controverted within ten (10) days, or is not dismissed within sixty
(60) days, after
<PAGE>
commencement of the case; or a custodian (as defined in the Bankruptcy
Code) is appointed for, or takes charge of, all or substantially all
of the property of any Default Entity; or any Default Entity commences
any other proceeding under any reorganization, arrangement, adjustment
of debt, relief of debtors, dissolution, insolvency or liquidation or
similar law of any jurisdiction whether now or hereafter in effect
relating to any Default Entity; or there is commenced against any
Default Entity any such proceeding which remains undismissed for a
period of sixty (60) days; or any Default Entity is adjudicated (by
any court of competent jurisdiction) insolvent or bankrupt; or any
order of relief or other order approving any such case or proceeding
is entered; or any Default Entity suffers any appointment of any
custodian or the like for it or any substantial part of its property
to continue undischarged or unstayed for a period of sixty (60) days;
or any Default Entity makes a general assignment for the benefit of
creditors; or any Default Entity shall admit in writing its inability
to pay its debts as they become due or any General Partner shall admit
in writing the inability of the partnership of which it is General
Partner to pay its debts as they become due; or any corporate or other
action is taken by any Default Entity for the purpose of effecting any
of the foregoing; or
SECTION 7.06. ERISA. Any ERISA Entity shall fail to pay when
due an amount or amounts aggregating in excess of $25,000,000 which it
shall have become liable to pay to the PBGC; or notice of intent to
terminate one or more Pension Plans having aggregate Unfunded Current
Liabilities in excess of $25,000,000 (collectively, a "Material Plan")
shall be filed under Title IV of ERISA by any ERISA Entity, any
Pension Plan administrator or any combination of the foregoing; or the
PBGC shall institute proceedings under Title IV of ERISA to terminate
or to cause a trustee to be appointed to administer any Material Plan;
or any other event or condition that the Required Lenders determine
constitutes reasonable grounds under Section 4042 of ERISA for the
termination of a Material Plan by the PBGC or for the appointment by
the appropriate United States District Court of a trustee to
administer or liquidate any Material Plan shall have occurred; or a
proceeding shall be instituted by a fiduciary of any Multiemployer
Plan against any ERISA Entity (i) to enforce Section 515 of ERISA with
respect to amounts in excess of $25,000,000 (which amount is not being
disputed, or as to which all administrative remedies under Title I of
ERISA have been exhausted) or (ii) to require immediate payment of
withdrawal liability (which is not being disputed, or as to which all
remedies under Title IV of ERISA have
<PAGE>
been exhausted) in excess of $25,000,000 following a "default" (as
defined in Section 4219(c)(5) of ERISA), and such proceeding shall not
have been stayed or dismissed within sixty (60) days thereafter; or
SECTION 7.07. Judgments. One or more judgments, attachments
or decrees shall be entered against one or more of the Borrowers
and/or any of their Material Subsidiaries involving a liability of
$20,000,000 or more in the case of any one such judgment or decree and
$50,000,000 or more in the aggregate at any one time for all such
judgments and decrees for the Borrowers and their Material
Subsidiaries (not paid or to the extent not fully covered by insurance
provided by a carrier that has acknowledged coverage) and any such
judgments or decrees shall not have been vacated, discharged or stayed
or bonded pending appeal within sixty (60) days from the entry
thereof; or
SECTION 7.08. Change of Control. A Change of Control shall
have occurred; or
SECTION 7.09. Dissolution. There shall be a dissolution or
liquidation for any reason (whether voluntary or involuntary) of TWE
or TWEAN other than as permitted by Section 6.02(b); or
SECTION 7.10. Taxation. TWE or TWEAN shall, for any reason,
(i) not be treated as a partnership for federal income tax purposes or
(ii) be treated as a publicly traded partnership under Section 7704 of
the Code; or
SECTION 7.11. Conflicting Agreements. Any Company, TWI, any
General Partner or any of their respective Subsidiaries shall enter
into any contract, agreement, instrument or understanding (other than
the Partnership Agreements as in effect on the Closing Date (or
modified in a manner not inconsistent with this Agreement) and any
contract, agreement or instrument governing long term debt of any
Company) that has the effect of restricting any Borrower or any
Restricted Subsidiary of any Borrower from (x) Incurring or repaying
Indebtedness, (y) granting Liens (other than any contract, agreement
or instrument that requires the obligations thereunder to be equally
and ratably secured with any other obligations that become secured) to
any Person or (z) making distributions in respect of its Capital
Stock; or
<PAGE>
SECTION 7.12. Certain Guarantees. Except as otherwise
expressly permitted by this Agreement (including Section 9.08) or such
Guarantee, any Guarantee shall cease to be in full force and effect,
or any Guarantor shall disavow its obligations under its Guarantee;
THEN (i) upon the occurrence of any Event of Default
described in the foregoing Section 7.05 in respect of any Borrower,
the unpaid principal amount of and accrued interest on all Loans and
Notes then outstanding to each Borrower shall automatically become
immediately due and payable, without presentment, demand, protest or
other requirements of any kind, all of which are hereby expressly
waived by each Borrower, and the obligation of each Lender to make any
Loan hereunder shall thereupon terminate, and (ii) upon the occurrence
and during the continuance of any other Event of Default, the
Administrative Agent shall, upon the written request of the Required
Lenders, by written notice to the Borrowers, declare all Loans and all
Notes then outstanding to each Borrower to be, and the same shall
forthwith become, due and payable, together with accrued interest
thereon and any other Obligations and the obligation of each Lender to
make any Loan hereunder shall thereupon terminate.
Notwithstanding anything contained in the foregoing
paragraph, if at any time within sixty (60) days after an acceleration
of the Loans and the Notes pursuant to the preceding paragraph, the
Borrowers shall pay all arrears of interest and all payments on
account of principal which shall have become due otherwise than by
acceleration (with interest on principal and, to the extent permitted
by law, on overdue interest, at the rates specified in this Agreement)
and all Events of Default and Defaults (other than non-payment of the
principal of and accrued interest on the Loans and the Notes, in each
case which is due and payable solely by virtue of acceleration) shall
be remedied or waived pursuant to Section 9.07, then the Two Thirds
Lenders, by written notice to the Borrowers, may at their option
rescind and annul the acceleration and its consequences; but such
action shall not affect any subsequent Event of Default or Default or
impair any right consequent thereon. The provisions of this paragraph
are intended merely to bind the Lenders to a decision which may be
made at the election of the Two Thirds Lenders and are not intended to
benefit the Borrowers and do not grant the Borrowers the right to
require the Lenders to rescind or annul any acceleration hereunder,
even if the conditions set forth herein are met.
<PAGE>
ARTICLE VIII
THE ADMINISTRATIVE AGENT
In order to expedite the transactions contemplated by this
Agreement, Chemical Bank is hereby appointed to act as Administrative
Agent on behalf of the Lenders. Each Lender hereby irrevocably
authorizes the Administrative Agent to take such actions on behalf of
such Lender and to exercise such powers as are specifically delegated
to the Administrative Agent by the terms and provisions hereof,
together with such actions and powers as are reasonably incidental
thereto. The Administrative Agent is hereby expressly authorized by
the Lenders, without hereby limiting any implied authority, (a) to
receive on behalf of the Lenders all payments of principal of and
interest on the Loans and all other amounts due to the Lenders
hereunder, and to distribute to each Lender its proper share of each
payment so received (x) if the payment was actually received by the
Administrative Agent prior to 2:00 p.m. on any day, on such day and
(y) if the payment was actually received by the Administrative Agent
after 2:00 p.m. on any day, on the following Business Day (it being
understood that to the extent that any such distribution is not made
in full, the Administrative Agent shall pay to each Lender, upon
demand, interest on its ratable share of the undistributed amount at
the Federal Funds Effective Rate from the date such amount was
required to be distributed to the Lenders pursuant to the foregoing
clauses until the date the Administrative Agent pays such Lender its
ratable share of the undistributed amount); (b) to give notice on
behalf of each of the Lenders to the Borrowers of any Event of Default
of which the Administrative Agent has actual knowledge acquired in
connection with its agency hereunder; and (c) to promptly distribute
to each Lender copies of all notices, financial statements and other
materials delivered by any Borrower pursuant to this Agreement as
received by the Administrative Agent.
Neither the Administrative Agent nor any of its directors,
officers, employees or agents shall be liable as such for any action
taken or omitted by any of them except to the extent it is determined
by a court of competent jurisdiction to have resulted from such
Person's own gross negligence or willful misconduct, or be responsible
for any statement, warranty or representation herein or the contents
of any document delivered in connection herewith, or be required to
ascertain or to make any inquiry concerning the performance or
observance by the Borrowers of any of the terms, conditions,
<PAGE>
covenants or agreements contained in any Credit Document other than
those expressly provided for herein. The Administrative Agent shall
not be responsible to the Lenders for the due execution, genuineness,
validity, enforceability or effectiveness of this Agreement or any
other Credit Document or other instruments or agreements. The
Administrative Agent may deem and treat the Lender which makes any
Loan as the holder of the indebtedness resulting therefrom for all
purposes hereof until it shall have received notice from such Lender,
given as provided herein, of the transfer thereof. The Administrative
Agent shall in all cases be fully protected in acting, or refraining
from acting, in accordance with written instructions signed by the
Required Lenders and, except as otherwise specifically provided
herein, such instructions and any action or inaction pursuant thereto
shall be binding on all the Lenders. The Administrative Agent shall,
in the absence of knowledge to the contrary, be entitled to rely on
any instrument or document believed by it in good faith to be genuine
and correct and to have been signed or sent by the proper person or
persons. Neither the Administrative Agent nor any of its directors,
officers, employees or agents shall have any responsibility to any
Borrower on account of the failure of or delay in performance or
breach by any Lender of any of its obligations hereunder or to any
Lender on account of the failure of or delay in performance or breach
by any other Lender or any Borrower of any of their respective
obligations hereunder or under any other Credit Document or in
connection herewith or therewith. The Administrative Agent may execute
any and all duties hereunder by or through agents or employees and
shall be entitled to rely upon the advice of legal counsel selected by
it with respect to all matters arising hereunder or under any other
Credit Document and shall not be liable for any action taken or
suffered in good faith by it in accordance with the advice of such
counsel.
The Lenders hereby acknowledge that the Administrative Agent
shall be under no express or implied duty to take any discretionary
action permitted to be taken by it pursuant to the provisions of this
Agreement, unless it shall be requested in writing to do so by the
Required Lenders.
Subject to the appointment and acceptance of a successor
Administrative Agent as provided below, the Administrative Agent may
resign at any time by notifying the Lenders and the Borrowers. Upon
any such resignation, the Required Lenders shall have the right to
appoint a successor Administrative Agent reasonably acceptable to the
Borrowers. If no successor
<PAGE>
shall have been so appointed by the Required Lenders and shall have
accepted such appointment within thirty (30) days after the retiring
Administrative Agent gives notice of its resignation, then the
retiring Administrative Agent may, with the consent of the Borrowers
(which consent shall not be unreasonably withheld or delayed), on
behalf of the Lenders, appoint a successor Administrative Agent which
shall be a bank with an office in New York, New York, having a
combined capital and surplus of at least $500,000,000 or an Affiliate
of any such bank. Upon the acceptance of any appointment as
Administrative Agent hereunder by a successor bank, such successor
shall succeed to and become vested with all the rights, powers,
privileges and duties of the retiring Administrative Agent and the
retiring Administrative Agent shall be discharged from its duties and
obligations hereunder. After the Administrative Agent's resignation
hereunder, the provisions of this Article and Section 9.05 shall
continue in effect for its benefit in respect of any actions taken or
omitted to be taken by it while it was acting as Administrative Agent.
With respect to the Loans made by it hereunder, the
Administrative Agent in its individual capacity and not as
Administrative Agent shall have the same rights and powers as any
other Lender and may exercise the same as though it were not the
Administrative Agent, and the Administrative Agent and its Affiliates
may accept deposits from, lend money to and generally engage in any
kind of business with any Borrower or any Subsidiary or other
Affiliate thereof as if it were not the Administrative Agent.
Each Lender agrees (i) to reimburse the Administrative
Agent, on demand, in the amount of its Pro Rata Share of any expenses
incurred for the benefit of the Lenders by the Administrative Agent,
including counsel fees and compensation of agents and employees paid
for services rendered on behalf of the Lenders, which shall not have
been reimbursed by the Borrowers and (ii) to indemnify and hold
harmless the Administrative Agent, each of its Affiliates and each of
their respective directors, officers, employees or agents, on demand,
in the amount of its Pro Rata Share, from and against any and all
liabilities, taxes, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements of any kind or
nature whatsoever which may be imposed on, incurred by or asserted
against it in its capacity as the Administrative Agent in any way
relating to or arising out of this Agreement or any other Credit
Document or any action taken or omitted to be taken by it under this
Agreement or any other Credit
<PAGE>
Document to the extent the same shall not have been reimbursed by the
Borrowers; provided, however, that no Lender shall be liable to the
Administrative Agent for any portion of such liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses
or disbursements that is determined by a court of competent
jurisdiction to have resulted from the gross negligence or willful
misconduct of the Administrative Agent, any of its Affiliates or any
of their respective directors, officers, employees or agents.
Each Lender acknowledges that it has, independently and
without reliance upon the Administrative Agent or any other Lender, or
any of their respective Affiliates, and based on such documents and
information as it has deemed appropriate, made its own credit analysis
and decision to enter into this Agreement. Each Lender also
acknowledges that it will, independently and without reliance upon the
Administrative Agent or any other Lender, or any of their respective
Affiliates, and based on such documents and information as it shall
from time to time deem appropriate, continue to make its own decisions
in taking or not taking action under or based upon this Agreement, any
other Credit Document or any related agreement or any document
furnished hereunder or thereunder.
ARTICLE IX
MISCELLANEOUS
SECTION 9.01. Notices. Notices and other communications
provided for herein shall be in writing and shall be delivered by hand
or overnight courier service, mailed or sent by telecopy, as follows:
(a) if to any Borrower, to it at 75 Rockefeller
Plaza, New York, New York 10019, Attention: Chief
Financial Officer (Telecopy No. 212-307-0126), with copies
to its General Counsel (Telecopy No. 212-956-7281) and to
Paul, Weiss, Rifkind, Wharton & Garrison, 1285 Avenue of
the Americas, New York, New York 10019, Attention: Robert
B. Schumer, Esq. (Telecopy No. 212-373-2348);
(b) if to the Administrative Agent, to Chemical Bank
Agency Services, 140 East 45th Street, 29th Floor, New
York, New York 10017, Attention: Janet Belden (Telecopy
No. 212-622-0002), with a copy to Chemical Bank, 270 Park
Avenue, New York, New York 10017, Re: Time Warner; and
<PAGE>
(c) if to a Lender, to it at its address (or telecopy
number) set forth in Schedule 2.01 or in the Assignment and
Acceptance pursuant to which such Lender became a party hereto.
All notices and other communications given to any party hereto in
accordance with the provisions of this Agreement shall be deemed to
have been given if mailed, telecopied or sent by overnight courier,
when deposited in the mail, telecopied or delivered to the overnight
courier and if delivered by hand, when received at the address
specified pursuant to this Section 9.01, except that notices and
communications to the Administrative Agent shall not be effective
until received by the Administrative Agent.
SECTION 9.02. Survival. (a) All covenants, agreements,
representations and warranties made by any of the Credit Parties in
any Credit Document and in the certificates or other instruments
prepared or delivered in connection with or pursuant to any Credit
Document shall be considered to have been relied upon by the Lenders
and shall survive the making of the Loans regardless of any
investigation made by any of the Lenders or on their behalf, and shall
continue in full force and effect as long as any obligation is
outstanding and unpaid or the Commitments have not been terminated.
(b) All indemnities set forth herein, including in Section
2.13, 2.15, 2.18 or 9.05 and Article VIII, shall survive the execution
and delivery of this Agreement, the issuance of the Notes, the making
of the Loans, the repayment of the Obligations, the cancellation of
the Notes and the termination of the Total Commitment.
SECTION 9.03. Independence of Representations, Warranties
and Covenants. The representations, warranties and covenants contained
herein shall be independent of each other, and no exception to any
representation, warranty or covenant shall be deemed to be an
exception to any other representation, warranty or covenant contained
herein unless expressly provided, nor shall any such exception be
deemed to permit any action or omission that would be in contravention
of applicable law.
SECTION 9.04. Effectiveness; Successors and Assigns. (a)
This Agreement shall become effective on the date (the "Effective
Date") when it shall have been executed by each Borrower and the
Administrative
<PAGE>
Agent and when the Administrative Agent shall have received copies
hereof (telecopied or otherwise) which, when taken together, bear the
signature of each Lender, and thereafter shall be binding upon and
inure to the benefit of the parties hereto and their respective
successors and assigns; provided, however, that no Borrower shall have
the right to assign or delegate any of its rights or obligations
hereunder or any interest herein without the prior written consent of
each Lender, except (i) that TWI Cable may assign, and the Transferee
Borrower may assume, the Allocated Loans in connection with a Transfer
if all the conditions set forth in Sections 3.03 and 3.04 are
satisfied and (ii) as contemplated in the definition of "TWI Cable."
(b) Each Lender may assign to one or more assignees all or a
portion of its interests, rights and obligations under this Agreement
(including all or a portion of its Commitment, Notes and the Loans at
the time owing to it); provided, however, that (i) other than in the
case of an assignment to a Lender or an Affiliate of a Lender, the
Administrative Agent must give prior written consent to such
assignment (which consent shall not be unreasonably withheld or
delayed), (ii) if such assignment is for less than all of the
assigning Lender's remaining rights and obligations under this
Agreement, (I) such assigning Lender shall retain, after such
assignment, at least $10,000,000 of its Commitment, and (II) the
amount of the Commitment being assigned shall be in integral multiples
of $1,000,000 and if the assignee is not a Lender at the time of
assignment, shall be in an amount not less than $10,000,000, (iii)
each such assignment shall be of a pro rata portion of all of such
Lender's Loans, Notes and Commitment, (iv) the parties to each such
assignment shall execute and deliver to the Administrative Agent an
Assignment and Acceptance, and, if the assignee shall not be an
Affiliate of the assigning Lender, a processing and recordation fee of
$3,000 (which fee shall not be required to be paid by any Borrower),
and (v) the assignee, if it shall not be a Lender, shall deliver to
the Administrative Agent an Administrative Questionnaire. The
assignment shall be deemed effective at the close of business on the
date of acceptance and recordation in the Register pursuant to Section
9.04(e) or such later date specified in the Assignment and Acceptance
as the settlement date, which settlement date shall be at least five
Business Days after the execution thereof. Upon such effectiveness,
(A) the assignee thereunder shall be a party hereto and, to the extent
of the interest assigned by such Assignment and Acceptance, have the
rights and obligations of a Lender under this Agreement and (B) the
assigning Lender thereunder shall, to the extent of the interest
assigned by
<PAGE>
such Assignment and Acceptance, be released from its
obligations under this Agreement (and, in the case of an Assignment
and Acceptance covering all or the remaining portion of an assigning
Lender's rights and obligations under this Agreement, such Lender
shall cease to be a party hereto (but shall continue to be entitled to
the benefits of Sections 2.13, 2.15, 2.18 and 9.05, as well as to any
Fees accrued for its account hereunder and not yet paid)).
Notwithstanding the foregoing clause (A), to the extent that any
assignment pursuant to this Section 9.04(b) would, at the time of such
assignment, result in increased costs under Section 2.13, 2.15 or 2.18
from those being charged by the assigning Lender prior to such
assignment, then the Borrowers shall not be obligated to pay such
increased costs (it being understood that the Borrowers shall be
obligated to pay any other increased costs of the type described above
resulting from changes after the date of such assignment).
(c) By executing and delivering an Assignment and
Acceptance, the assigning Lender thereunder and the assignee
thereunder shall be deemed to confirm to and agree with each other and
the other parties hereto as follows: (i) such assigning Lender
warrants that it is the legal and beneficial owner of the interest
being assigned thereby free and clear of any adverse claim, (ii) such
assigning Lender represents and warrants that it is legally authorized
to enter such assignment, (iii) such assigning Lender confirms that it
has provided the assignee with a copy of this Agreement, together with
copies of the most recent financial statements delivered pursuant to
Section 4.12 or 5.01 and such other documents as necessary, (iv)
except as set forth in (i)-(iii) above, such assigning Lender makes no
representation or warranty and assumes no responsibility with respect
to any statements, warranties or representations made in or in
connection with this Agreement, or the execution, legality, validity,
enforceability, genuineness, sufficiency or value of this Agreement or
any other instrument or document furnished pursuant hereto or the
financial condition of any Credit Party or the performance or
observance by the Borrowers of any obligations under this Agreement,
any other Credit Document or any other instrument or document
furnished pursuant hereto or thereto; (v) such assignee represents and
warrants that it is legally authorized to enter into such Assignment
and Acceptance; (vi) such assignee confirms that it has received a
copy of this Agreement, together with copies of the most recent
financial statements delivered pursuant to Section 4.12 or 5.01 and
such other documents and information as it has deemed appropriate to
make its own credit
<PAGE>
analysis and decision to enter into such Assignment and Acceptance;
(vii) such assignee has and will independently and without reliance
upon the Administrative Agent, such assigning Lender or any other
Lender, or any of their respective Affiliates, and based on such
documents and information as it shall deem appropriate at the time,
make and continue to make its own credit decisions in taking or not
taking action under this Agreement; (viii) such assignee appoints and
authorizes the Administrative Agent to take such action as agent on
its behalf and to exercise such powers under this Agreement as are
delegated to the Administrative Agent by the terms hereof, together
with such powers as are reasonably incidental thereto; and (ix) such
assignee agrees that it will perform in accordance with their terms
all the obligations which by the terms of this Agreement are required
to be performed by it as a Lender.
(d) The Administrative Agent shall, on behalf of and solely
for this purpose as agent for the Borrowers, maintain at one of its
offices in The City of New York a copy of each Assignment and
Acceptance delivered to it and a 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 pursuant to the
terms hereof from time to time (the "Register"). The entries in the
Register shall be conclusive in the absence of manifest error and the
Borrowers, the Administrative Agent and the Lenders may treat each
person whose name is recorded in the Register pursuant to the terms
hereof as a Lender hereunder for all purposes of this Agreement. The
Register shall be available for inspection by each party hereto, at
any reasonable time and from time to time upon reasonable prior
notice.
(e) Upon its receipt of a duly completed Assignment and
Acceptance executed by an assigning Lender and an assignee together
with an Administrative Questionnaire completed in respect of the
assignee (unless the assignee shall already be a Lender hereunder) and
the processing and recordation fee referred to in paragraph (b) above
the Administrative Agent shall (i) accept such Assignment and
Acceptance and (ii) record the information contained therein in the
Register. No purported assignment or other transfer by a Lender of all
or a portion of its interests, rights and obligations under this
Agreement (including all or a portion of its Commitment, Notes and
Loans at the time owing to it) that is not recorded in the Register in
accordance with this Section 9.04(e) shall be given effect by or be
binding upon the Administrative Agent or any Credit Party, and any
such purported assignment or transfer
<PAGE>
shall be null and void ab initio and vest in the purported assignee or
transferee no right against the Administrative Agent or any Borrower
(it being understood that this sentence shall not apply to a sale of a
participation pursuant to Section 9.04(g) or a pledge to a Federal
Reserve Bank by a Lender pursuant to Section 9.04(i)).
(f) If requested by the assignee Lender, each Borrower of
the Loans being assigned shall, at such Borrower's sole expense, issue
one or more new Notes to the assignee for the amount of Loans being
assigned; provided, however, that the assigning Lender shall have
surrendered to such Borrower all of the Notes evidencing the Loans
being assigned or, if any such Note has been lost or is otherwise
unavailable, the assigning Lender shall have executed and delivered to
such Borrower an indemnity agreement in customary form reasonably
acceptable to the Borrower; provided, further, however, that if the
aggregate principal amount of the Notes surrendered (or lost or
otherwise unavailable Notes in respect of which indemnity has been
provided) by the assigning Lender is greater than the amount of Loans
being assigned, such Borrower shall also issue one or more new Notes
to the assigning Lender in accordance with Section 2.10 of the Credit
Agreement for the amount of Loans not being assigned.
(g) Each Lender may sell participations to one or more banks
or other entities in all or a portion of its rights and obligations
under this Agreement (including all or a portion of its Commitment and
the Loans owing to it); provided, however, that (i) such Lender's
obligations under this Agreement shall remain unchanged, (ii) such
Lender shall remain solely responsible to the other parties hereto for
the performance of such obligations, (iii) each participating bank or
other entity shall be entitled to the benefit of the cost protection
provisions contained in Sections 2.13, 2.14 and 2.18 to the same
extent as if it were the selling Lender (and limited to the amount
that could have been claimed by the selling Lender had it continued to
hold the interest of such participating bank or other entity), except
that all claims made pursuant to such Sections shall be made through
such selling Lender, (iv) each participating bank or other entity
shall be entitled to the provisions of Sections 9.05 and 9.06 and
shall be obligated under Section 2.17 as if it were a Lender, (v) no
participant (unless and only to the extent such participant is itself
a Lender) shall be entitled to require such Lender to take or refrain
from taking action under this Agreement or any other Credit Document,
except that such Lender may agree with
<PAGE>
such participant that such Lender will not, without such participant's
consent, agree to any amendment or waiver of this Agreement described
in clauses (i) and (ii) of Section 9.07(b) and (vi) the Borrowers, the
Administrative Agent and the other Lenders shall continue to deal
solely and directly with such selling Lender in connection with such
Lender's rights and obligations under this Agreement. Notwithstanding
the foregoing clause (iii), to the extent that any participation
pursuant to this Section 9.04(g) would, at the time of the sale of
such participation, result in increased costs under Section 2.13, 2.15
or 2.18 from those being charged by the selling Lender prior to such
sale, then the Borrowers shall not be obligated to pay such increased
costs (it being understood that the Borrowers shall be obligated to
pay any other increased costs of the type described above resulting
from changes after the date of such sale).
(h) Any Lender or participant may, in connection with any
assignment or participation or proposed assignment or participation
pursuant to this Section 9.05, disclose to the assignee or participant
or proposed assignee or participant any information relating to the
Borrowers furnished to such Lender; provided, however, that, prior to
any such disclosure, each such assignee or participant or proposed
assignee or participant shall execute an agreement whereby such
assignee or participant shall agree (subject to the exceptions set
forth in Section 9.10) to preserve the confidentiality of any such
information.
(i) Any Lender may at any time pledge all or any portion of
its rights under this Agreement to a Federal Reserve Bank in support
of borrowings made by such Lender from such Federal Reserve Bank;
provided, however, that no such pledge shall release any Lender from
its obligations hereunder or substitute such Federal Reserve Bank for
such Lender as a party hereto.
(j) Notwithstanding any other provision of this Section, no
transfer or assignment of the interests or obligations of any Lender
hereunder or any grant of participations therein shall be permitted if
such transfer, assignment or grant would require any Borrower or any
Guarantor to file a registration statement with the SEC or to qualify
the Loans under the "Blue Sky" laws of any state.
(k) Each Lender initially party to this Agreement hereby
represents, and each Person that becomes a Lender
<PAGE>
pursuant to an assignment in accordance with the terms hereof will
upon its becoming party to this Agreement represent, that it is a
commercial lender, other financial institution or other "accredited
investor" (as defined in SEC Regulation D) and that it will make or
acquire Loans for its own account in the ordinary course of its
business; provided, however, that, subject to the provisions of this
Section 9.04, the disposition of any promissory notes or other
evidences of or interests in Indebtedness held by such Lender shall at
all times be within its exclusive control.
SECTION 9.05. Expenses; Indemnity. (a) The Borrowers agree,
jointly and severally, to pay all reasonable out-of-pocket expenses
incurred by the Administrative Agent in connection with entering into
this Agreement and the other Credit Documents or in connection with
any amendments, modifications or waivers of the provisions hereof or
thereof, or incurred by the Administrative Agent or any Lender in
connection with the enforcement of any of their rights in connection
with any Credit Document or in connection with the Loans made
hereunder, including the fees and disbursements of counsel for the
Administrative Agent or, in the case of enforcement, the Lenders.
(b) The Borrowers agree, jointly and severally, to indemnify
the Administrative Agent, the Documentation and Syndication Agents,
each Lender, each of their Affiliates and the directors, officers,
employees and agents of each of the foregoing (each, an "Indemnitee")
against, and to hold each Indemnitee harmless from, any and all
losses, claims, damages, liabilities and related expenses, including
reasonable counsel fees and expenses, incurred by or asserted against
any Indemnitee relating to or arising out of (i) the execution or
delivery of any Credit Document or any agreement or instrument
contemplated thereby, the performance by the parties thereto of their
respective obligations thereunder, any Acquisition, any Transfer or
the consummation of any of the transactions contemplated thereby, (ii)
any enforcement of any Lender's rights in connection with any Credit
Document or in connection with the Loans, (iii) the proposed or actual
use of the proceeds of the Loans or (iv) any claim, litigation,
investigation or proceeding relating to any of the foregoing, whether
or not any Indemnitee is a party thereto (collectively, the
"indemnified liabilities"); provided, however, that such indemnity
shall not, as to any Indemnitee, be available (x) with respect to
indemnified liabilities in connection with any settlement entered into
by such Indemnitee without the consent of the Borrowers (other than if
the Borrowers shall be in breach of their
<PAGE>
obligations under Section 9.05(a)), which consent shall not be
unreasonably withheld, or (y) to the extent that such losses, claims,
damages, liabilities or related expenses are determined by a final and
nonappealable judgment of a court of competent jurisdiction to have
resulted from the gross negligence or willful misconduct of such
Indemnitee. To the extent that the undertaking to indemnify, pay and
hold harmless set forth in the preceding sentence may be unenforceable
because it is violative of any law or public policy, the Borrowers
shall, jointly and severally, contribute the maximum portion that they
are permitted to pay and satisfy under applicable law to the payment
and satisfaction of all indemnified liabilities incurred by the
Indemnitees or any of them.
(c) The provisions of this Section 9.05 shall remain
operative and in full force and effect regardless of the expiration of
the term of this Agreement, the consummation of the transactions
contemplated hereby, the repayment of any of the Loans or Notes, the
invalidity or unenforceability of any term or provision of this
Agreement or any other Credit Document or any investigation made by or
on behalf of the Administrative Agent or any Lender. All amounts due
under this Section 9.05 shall be payable on written demand therefor.
SECTION 9.06. Right of Setoff. If an Event of Default shall
have occurred and be continuing, each Lender is hereby authorized at
any time and from time to time, to the fullest extent permitted by law
and without prior written notice (which notice is hereby waived by
each Borrower), to recoup, set off and apply any and all deposits
(general or special, time or demand, provisional or final) at any time
held and other indebtedness at any time owing by such Lender to or for
the credit or obligations of any Borrower now or hereafter existing
under any Credit Document held by such Lender, irrespective of whether
or not such Lender shall have made any demand under such Credit
Document and although such obligations may be unmatured. Each Lender
agrees promptly to notify the Borrowers after such setoff and
application made by such Lender, but the failure to give such notice
shall not affect the validity of such setoff and application. The
rights of each Lender under this Section 9.06 are in addition to other
rights and remedies (including other rights of setoff) which such
Lender may have.
SECTION 9.07. Waivers; Amendment. (a) No failure or delay of
the Administrative Agent or any Lender in exercising any power or
right hereunder shall operate as a waiver
<PAGE>
thereof, nor shall any single or partial exercise of any such right or
power, or any abandonment or discontinuance of steps to enforce such a
right or power, preclude any other or further exercise thereof or the
exercise of any other right or power. The rights and remedies of the
Administrative Agent and the Lenders under the Credit Documents are
cumulative and are not exclusive of any rights or remedies which they
would otherwise have. No waiver of any provision of any Credit
Document or consent to any departure therefrom shall in any event be
effective unless the same shall be permitted by paragraph (b) below,
and then such waiver or consent shall be effective only in the
specific instance and for the purpose for which given. No notice or
demand on any Company in any case shall entitle such party to any
other or further notice or demand in similar or other circumstances.
(b) No Credit Document nor any provision thereof may be
waived, amended or modified except pursuant to an agreement or
agreements in writing entered into by the Borrowers and the Required
Lenders; provided, however, that no such agreement shall (i) decrease
the principal amount of any Loan, or extend the maturity of or date
for the payment of any principal or interest on any Loan, or decrease
the rate of interest on any Loan (other than as a result of waiving
the applicability of Section 2.07(b)), without the prior written
consent of each Lender affected thereby, (ii) increase the Commitment
of, or decrease any Fee payable to, any Lender without the prior
written consent of such Lender (it being understood that a waiver of
any Default or Event of Default or of a mandatory reduction in any
Borrowing Cap shall not constitute a change in the terms of any
Commitment of any Lender), (iii) increase the Borrowing Cap of any
Borrower without the prior written consent of each Lender, (iv) limit
or release any Guarantee (other than in accordance with Section 9.08),
without the prior written consent of each Lender, or (v) amend or
modify the provisions of this Section, Section 2.16 or the proviso of
Section 9.04(a), or the definition of "Required Lenders" or "Two
Thirds Lenders", without the prior written consent of each Lender;
provided, further, however, that no such agreement shall amend, modify
or otherwise affect the rights or duties of the Administrative Agent
hereunder without the prior written consent of the Administrative
Agent. Each Lender shall be bound by any waiver, amendment or
modification authorized by this Section 9.07 and any consent by any
Lender pursuant to this Section 9.07 shall bind any assignee of its
rights and interests hereunder.
<PAGE>
(c) If, in connection with any proposed amendment, waiver,
discharge or termination of any of the provisions of this Agreement in
accordance with Section 9.07(b), the consent of the Required Lenders
is obtained but the consent of one or more of such other Lenders whose
consent is required is not obtained, then the Borrowers shall have the
right to replace each such non-consenting Lender or Lenders (so long
as all non-consenting Lenders are so replaced) with one or more
Replacement Lenders pursuant to Section 2.19 (which Replacement Lender
shall be reasonably acceptable to the Administrative Agent) so long as
at the time of such replacement, each such Replacement Lender consents
to the proposed amendment, waiver, discharge or termination.
SECTION 9.08. Release of Certain Guarantees. (a) TWE may,
without the consent of any Lender, release or cause to be released any
TWE Partner Guarantor or any Holder Guarantor from its Guarantee and
(b) TWEAN may, without the consent of any Lender, release or cause to
be released any holder of TWEAN Material Beneficial Assets from its
Guarantee, in each case if (i) such Guarantor shall no longer hold any
Material Beneficial Assets, (ii) such Guarantor shall not be in breach
of its Guarantee, (iii) no Default or Event of Default shall have
occurred and be continuing, (iv) such Guarantee is not, by operation
of Section 6.15, required to be in effect and (v) no obligations with
respect to principal or interest are then due and owing by such
Guarantor, and such Guarantor shall not remain directly or indirectly
liable for any obligations, with respect to any other Indebtedness of
any Company (other than, in the case of a TWE Partner Guarantor, in
its capacity as a General Partner of TWE if such TWE Partner Guarantor
shall be similarly liable for the obligations of TWE hereunder). Such
release shall in all respects be subject to any reinstatement
provisions set forth in such Guarantee. TWE or TWEAN, as the case may
be, shall notify the Administrative Agent upon any such release, and
the Administrative Agent shall notify the Lenders of such release.
Nothing in this Section 9.08 shall prohibit the merger or
consolidation of any TWE Partner Guarantor with or into any other
Person so long as, after giving effect to such merger or consolidation
on a Pro Forma Basis, (x) no Default or Event of Default shall have
occurred and be continuing and (y) the representations and warranties
set forth in Section 4.19(a) shall be true and correct.
SECTION 9.09. Confirmations. Each Borrower and each holder
of a Note agree from time to time, upon written request received by it
from the other, to confirm to the other in
<PAGE>
writing (with a copy of each such confirmation to the Administrative
Agent) the aggregate unpaid principal amount of the Loans then
outstanding under such Note. Each such holder of a Note agrees from
time to time, upon written request received by it from the Borrower
owing under such Note, to make any Note held by it available for
reasonable inspection by such Borrower at the office of such holder.
SECTION 9.10. Confidentiality. Subject to Sec- tion 9.04(h),
each Lender shall hold all confidential information obtained pursuant
to the requirements of, or otherwise in connection with, this
Agreement, including the Confidential Information Memorandum (the
"Confidential Information"), in accordance with its customary
procedures for handling confidential information of this nature and in
accordance with safe and sound banking practices; provided, however,
that in no event shall any Lender be obligated or required to return
any materials furnished by any Company. Notwithstanding the foregoing,
any Lender may disclose Confidential Information (x) to any of its
Affiliates that agrees to be bound by this Section 9.10, (y) for
purposes of enforcing its rights hereunder or (z) as required or
requested by any Governmental Authority or pursuant to legal process;
provided, however, that, unless specifically prohibited by applicable
law or court order, before disclosing any Confidential Information
regarding any Borrower pursuant to a request by a Government Authority
(other than any such request in connection with an examination of such
Lender's financial condition of by any Governmental Authority), such
Lender shall notify such Borrower of such request (in advance of
complying with such request, if practicable in the circumstances).
SECTION 9.11. Partners. Each Lender (a) acknowl- edges that
each of TWE and TWEAN is a partnership and (b) agrees that it will not
cause or seek to cause any Partner or any assignee of any Partner's
Partnership Interest to be liable, as a Partner, to such Lender with
respect to any of the Loans or any Fees or other amounts payable to
such Lender or participant by the partnership in which such Partner is
a partner under this Agreement (except as set forth below or pursuant
to any other written agreement or understanding between or among such
Persons), it being agreed that (i) recourse for such purposes and any
claim in respect thereof shall be limited to the Partnership Interests
of such Persons and the assets and properties of TWE and TWEAN and
(ii) no judgment, order or execution entered in any suit, action or
proceeding (whether legal or equitable) in respect thereof shall be
enforced or obtained
<PAGE>
against any Partner or any assignee of any Partner's Partnership
Interest beyond the extent of such Person's Partnership Interest;
provided, however, that this paragraph shall not (x) operate as a
waiver of any rights or claims against any Partner or any assignee of
any Partner's Partnership Interest arising out of or resulting from
such Person's misrepresentations, misconduct or violation of law or
(y) affect the validity or enforceability of any direct obligations of
any Partner hereunder or under any of the other Credit Documents,
including the direct obligations of TWE hereunder and under the TWE
Guarantee and the obligations of TWE Partners under the TWE Partner
Guarantees.
SECTION 9.12. Applicable Law. THIS AGREEMENT AND THE OTHER
CREDIT DOCUMENTS SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY
THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO PRINCIPLES OF
CONFLICTS OF LAW.
SECTION 9.13. Jurisdiction; Consent to Service of Process.
(a) Each Borrower hereby irrevocably and unconditionally submits, for
itself and its property, to the nonexclusive jurisdiction of any New
York State court or Federal court of the United States of America
sitting in New York City, and any appellate court from any thereof
(each, a "New York Court"), in any action or proceeding arising out of
or relating to any Credit Document, or for recognition or enforcement
of any judgment, and each of the parties hereto hereby irrevocably and
unconditionally agrees that all claims in respect of any such action
or proceeding may be heard and determined in such New York State or,
to the extent permitted by law, in such Federal court. Each of the
parties hereto agrees that a final judgment in any such action or
proceeding shall be conclusive and may be enforced in other
jurisdictions by suit on the judgment or in any other manner provided
by law. Subject to the foregoing and to paragraph (b) below, nothing
in this Agreement shall affect any right that any party hereto may
otherwise have to bring any action or proceeding relating to any
Credit Document against any other party hereto in the courts of any
jurisdiction.
(b) Each Borrower hereby irrevocably and unconditionally
waives, to the fullest extent it may legally and effectively do so,
any objection which it may now or hereafter have to the laying of
venue of any suit, action or proceeding arising out of or relating to
any Credit Document in any New York Court. Each of the parties hereto
hereby irrevocably waives, to the fullest extent permitted by law, the
defense of
<PAGE>
an inconvenient forum to the maintenance of such action or
proceeding in any such court.
(c) Each party to this Agreement irrevocably consents to
service of process in the manner provided for notices in Section 9.01.
Nothing in this Agreement will affect the right of any party to this
Agreement to serve process in any other manner permitted by law.
SECTION 9.14. Waiver of Jury Trial. EACH PARTY HERETO HEREBY
WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT
IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY
OR INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH ANY CREDIT
DOCUMENT. Each party hereto (a) certifies that no representative,
agent or attorney of any other party has represented, expressly or
otherwise, that such other party would not, in the event of
litigation, seek to enforce the foregoing waiver and (b) acknowledges
that it and other parties hereto have been induced to enter into the
Credit Documents by, among other things, the mutual waivers and
certification in this Section 9.14.
SECTION 9.15. Calculations; Computations; Interpretation.
(a) All Financial Statements to be furnished to the Lenders hereunder
shall be made and prepared in accordance with GAAP consistently
applied throughout the periods involved, except (i) as set forth in
the notes thereto and (ii) the assets and liabilities of TWE and TWEAN
shall include the TWE Beneficial Assets and TWEAN Beneficial Assets,
respectively, and liabilities of the holders of such Beneficial Assets
to the extent not otherwise required to be so included in accordance
with GAAP; provided, however, that, except as otherwise specifically
provided herein, all computations determining compliance with Article
VI, including definitions used therein, shall utilize accounting
principles and policies in effect at the time of the preparation of,
and in conformity with those used to prepare, the audited Financial
Statements of TWE for the fiscal year ended December 31, 1994. The
covenants contained in Article V and Article VI shall apply, as if
holders of TWE Material Beneficial Assets and TWEAN Material
Beneficial Assets were Restricted Subsidiaries of TWE and TWEAN,
respectively (each, a "Beneficial Subsidiary") during any period and
on any date on which such holders own such Material Beneficial Assets
(but with respect to the Specified Holders, only to the extent of the
assets and liabilities related to Material Beneficial Assets).
<PAGE>
(b) Notwithstanding paragraph (a) of this Section 9.15,
nothing contained in this Agreement shall prohibit or otherwise limit
or restrict (i) any merger of a Beneficial Subsidiary into a TWE
Partner Guarantor or into another Beneficial Subsidiary, (ii) the
distribution or other payment by a Beneficial Subsidiary of any
amounts distributed to it by TWE or TWEAN in accordance with the terms
hereof (such amounts so distributed or paid by such Beneficial
Subsidiary shall not be deemed Restricted Payments for purposes of
this Agreement) or (iii) the ability of any holder of Beneficial
Assets (other than TWE) from selling, transferring, distributing or
encumbering any assets, other than the Beneficial Assets.
(c) Calculations pursuant to the covenants set forth in
Sections 6.04(b), 6.06 and 6.11 shall be made for each Person and its
Subsidiaries on a consolidated basis in accordance with GAAP and the
related definitions set forth in Article I, it being understood that:
(i) with respect to TWI, TWE and any entity (including
TWEAN) in which TWI owns, directly or indirectly, at least 50%
of the common equity (including Restricted Subsidiaries and
Unrestricted Subsidiaries of TWI) shall be so consolidated with
TWI as if each were a Wholly Owned Subsidiary of TWI;
(ii) with respect to TWE, only such percentage of the
results of operations and assets and liabilities of TWEAN as is
equal to the percentage of the common equity of TWEAN owned by
TWE on a consolidated basis shall be so included in the results
of operations and assets and liabilities of TWE; and
(iii) as long as (x) TWI Cable owns, directly or indirectly,
at least 50% of the common equity of Paragon and (y) the
Borrowers collectively own, directly or indirectly, 100% of the
common equity of Paragon, (A) Paragon shall be so consolidated
with TWI Cable as if it were a Wholly Owned Subsidiary of TWI
Cable and (B) if so consolidated, Paragon shall still be treated
as an equity investment in TWE and TWEAN (to the extent of their
respective interests therein); provided, however, that the
amount of any distributions actually received from Paragon by
TWE and/or TWEAN or their respective Subsidiaries shall, without
duplication, be deducted from the Consolidated Cash Flow of TWI
Cable in the period of such distribution.
<PAGE>
SECTION 9.16. Allocations. Without in any way derogating the
joint and several obligations of the Borrowers under any provision
hereunder, it is hereby acknowledged that payments under any such
obligation may be allocated 9/18th, 5/18th and 4/18th among TWE, TWEAN
and TWI Cable, respectively.
SECTION 9.17. Distribution of Documents. If any provision
hereof requires the Borrowers to provide a document to the Lenders,
the Borrowers shall be entitled to provide such document to the
Administrative Agent (with sufficient copies for the Lenders) for
distribution to the Lenders.
SECTION 9.18. Entire Agreement; Benefit. This Agreement and
the other Credit Documents constitute the entire contract among the
parties relative to the subject matter hereof. Any previous agreement
among the parties with respect to the subject matter hereof is
superseded by this Agreement, the other Credit Documents and such
letter agreement. Nothing in any Credit Document, expressed or
implied, is intended to confer upon any party other than the parties
thereto (other than any other Indemnitee) any rights, remedies,
obligations or liabilities under or by reason of the Credit Documents.
SECTION 9.19. Severability. In the event any one or more of
the provisions contained in any Credit Document should be held
invalid, illegal or unenforceable in any respect, the validity,
legality and enforceability of the remaining provisions contained
therein shall not in any way be affected or impaired thereby. The
parties shall endeavor in good-faith negotiations to replace the
invalid, illegal or unenforceable provisions with valid provisions the
economic effect of which comes as close as possible to that of the
invalid, illegal or unenforceable provisions.
SECTION 9.20. Counterparts. This Agreement may be executed
in two or more counterparts, each of which shall constitute an
original but all of which when taken together shall constitute but one
contract, and shall become effective as provided in Section 9.04(a).
SECTION 9.21. Headings. Article and Section headings and the
Tables of Contents, Exhibits and Schedules used herein are for
convenience of reference only, are not part of this Agreement and are
not to affect the construction of, or to be taken into consideration
in interpreting, this Agreement.
<PAGE>
WITNESS the due execution hereof by the respective duly
authorized officers of the undersigned as of the date first written
above.
TIME WARNER ENTERTAINMENT
COMPANY, L.P.
By: /s/ Richard J. Bressler
-----------------------------------
Name: Richard J. Bressler
Title: Senior Vice President
and Chief Financial Officer
TIME WARNER ENTERTAINMENT-
ADVANCE/NEWHOUSE PARTNERSHIP
By: TIME WARNER ENTERTAINMENT
COMPANY, L.P.,
Managing Partner
By: /s/ Richard J. Bressler
------------------------------------
Name: Richard J. Bressler
Title: Senior Vice President
and Chief Financial Officer
TWI CABLE INC.
By: /s/ Richard J. Bressler
---------------------------------
Name: Richard J. Bressler
Title: Senior Vice President
CHEMICAL BANK,
As Administrative Agent and Lender
By: /s/ Robert K. Gaynor
---------------------------------
Name: Robert K. Gaynor
Title: Vice President
