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EXHIBIT 99.4
$700,000,000
BRIDGE CREDIT AGREEMENT
Dated as of December 15, 2000
Among
TIME WARNER TELECOM INC.
as Borrower
and
THE INITIAL LENDERS NAMED HEREIN
as Initial Lenders
and
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ SENIOR FUNDING, INC.
as Administrative Agent
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TABLE OF CONTENTS
SECTION PAGE
ARTICLE I DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01. Certain Defined Terms...............................................................2
SECTION 1.02. Computation of Time Periods; Other Definitional Provisions.........................25
SECTION 1.03. Accounting Terms...................................................................25
ARTICLE II AMOUNTS AND TERMS OF THE ADVANCES
SECTION 2.01. The Advances.......................................................................25
SECTION 2.02. Making the Advances................................................................25
SECTION 2.03. Repayment of Advances..............................................................27
SECTION 2.04. Termination or Reduction of the Commitments........................................30
SECTION 2.05. Prepayments........................................................................30
SECTION 2.06. Interest...........................................................................34
SECTION 2.07. Fees...............................................................................36
SECTION 2.08. Conversion of Bridge Advances......................................................36
SECTION 2.09. Increased Costs....................................................................37
SECTION 2.10. Payments and Computations..........................................................38
SECTION 2.11. Taxes..............................................................................40
SECTION 2.12. Sharing of Payments, Etc...........................................................41
SECTION 2.13. Use of Proceeds....................................................................42
SECTION 2.14. Evidence of Debt...................................................................42
SECTION 2.15. Replacement of Lenders.............................................................43
ARTICLE III CONDITIONS OF LENDING
SECTION 3.01. Conditions Precedent to Initial Extension of Credit................................43
SECTION 3.02. Determinations Under Section 3.01..................................................45
ARTICLE IV REPRESENTATIONS AND WARRANTIES
SECTION 4.01. Representations and Warranties of the Borrower.....................................45
ARTICLE V COVENANTS OF THE BORROWER
SECTION 5.01. Affirmative Covenants..............................................................51
SECTION 5.02. Negative Covenants.................................................................55
SECTION 5.03. Reporting Requirements.............................................................64
SECTION 5.04. Financial Covenants................................................................67
ARTICLE VI EVENTS OF DEFAULT
SECTION 6.01. Events of Default..................................................................67
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ARTICLE VII THE AGENTS
SECTION 7.01. Authorization and Action...........................................................69
SECTION 7.02. Administrative Agent's Reliance, Etc...............................................70
SECTION 7.03. MSSF and Affiliates................................................................70
SECTION 7.04. Lender Credit Decision.............................................................70
SECTION 7.05. Indemnification....................................................................71
SECTION 7.06. Successor Administrative Agent.....................................................71
ARTICLE VIII MISCELLANEOUS
SECTION 8.01. Amendments, Etc....................................................................72
SECTION 8.02. Notices, Etc.......................................................................73
SECTION 8.03. No Waiver; Remedies................................................................73
SECTION 8.04. Costs and Expenses.................................................................73
SECTION 8.05. Right of Set-off...................................................................75
SECTION 8.06. Binding Effect.....................................................................75
SECTION 8.07. Assignments and Participations.....................................................75
SECTION 8.08. Execution in Counterparts..........................................................78
SECTION 8.09. Confidentiality....................................................................79
SECTION 8.10. Jurisdiction, Etc..................................................................79
SECTION 8.11. Governing Law......................................................................80
SCHEDULES
Schedule I - Commitments and Applicable Lending Offices
Schedule 4.01(d) - Authorizations, Approvals, Actions, Notices and Filings
Schedule 4.01(o) - Subsidiaries
Schedule 5.02(a)(iv) - Indebtedness
Schedule 5.02(b)(vi) - Liens
Schedule 5.02(i) - Transactions with Affiliates
EXHIBITS
Exhibit A-1 - Form of Bridge Note
Exhibit A-2 - Form of Rollover Note
Exhibit B - Form of Notice of Borrowing
Exhibit C - Form of Assignment and Acceptance
Exhibit D - Form of Compliance Certificate
Exhibit E - Form of Exemption Certificate
Exhibit F - Form of Closing Certificate
Exhibit G - Exchange Covenants and Related Definitions
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BRIDGE CREDIT AGREEMENT
BRIDGE CREDIT AGREEMENT dated as of December 15, 2000 among
TIME WARNER TELECOM INC., a Delaware corporation (the "BORROWER"), the banks,
financial institutions and other institutional lenders listed on the signature
pages hereof as the Initial Lenders (the "INITIAL LENDERS"), and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
SENIOR FUNDING, INC. ("MSSF"), as administrative agent (together with any
successor administrative agent appointed pursuant to Article VII, the
"ADMINISTRATIVE AGENT") for the Lenders (as hereinafter defined) and as lead
arranger and sole book runner (the "ARRANGER").
PRELIMINARY STATEMENTS:
(1) The Borrower entered into an Asset Purchase Agreement
dated as of September 11, 2000 (as amended (as hereinafter defined), the
"ACQUISITION AGREEMENT") with GST Telecommunications Inc. and certain other
parties thereto (collectively, the "SELLER"), pursuant to which the Borrower
will purchase substantially all of the assets (the "ACQUIRED ASSETS") of the
Seller (the "ACQUISITION").
(2) The Borrower and Time Warner Telecom Holdings Inc., a
wholly owned Subsidiary (as hereinafter defined) of the Borrower ("THI") propose
to amend and restate their existing $475 million credit agreement (the "EXISTING
CREDIT AGREEMENT"), pursuant to an Amended and Restated Credit Agreement (as
amended, the "BANK CREDIT FACILITY") with certain lending institutions to be
party thereto (the "SENIOR LENDERS") to provide for an aggregate of $1 billion
in bank borrowings to THI, $525 million of which shall consist of term loan
facilities ($275 million of which in the form of a delayed-draw term facility)
and $475 million of which shall consist of a revolving credit facility (the
"REVOLVER").
(3) The Acquisition, together with the financings thereof
described above, and the financings contemplated by the Bridge Documents and the
issuance of the Permanent Securities in order to consummate the Permanent
Financing are hereinafter referred to as the "TRANSACTION".
(4) The Borrower has requested that in connection with the
consummation of the Acquisition, the Lenders lend to the Borrower funds
sufficient, together with funds under the Bank Credit Facility, to (i)
consummate the Acquisition, (ii) pay the fees and expenses incurred in
connection with the consummation of the Acquisition and the financings thereof
and (iii) to finance a portion of the Business Plan (as defined below). The
Lenders have indicated their willingness to agree to lend such amounts on the
terms and conditions of this Agreement.
NOW, THEREFORE, in consideration of the premises and of the
mutual covenants and agreements contained herein, the parties hereto hereby
agree as follows:
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ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01. Certain Defined Terms. As used in this
Agreement, the following terms shall have the following meanings (such meanings
to be equally applicable to both the singular and plural forms of the terms
defined):
"ABR" means, for any day, a rate per annum (rounded upwards,
if necessary, to the next 1/16th of 1%) equal to the greatest of (a)
the Prime Rate in effect on such day, (b) the Three-Month Secondary CD
Rate (adjusted for statutory reserve requirements) plus 1% and (c) the
Federal Funds Effective Rate from time to time plus 0.5%. Any change in
the ABR due to a change in the Prime Rate, the Three-Month Secondary CD
Rate or the Federal Funds Effective Rate shall be effective as of the
opening of business on the effective day of such change in the Prime
Rate, the Three-Month Secondary CD Rate or the Federal Funds Effective
Rate, respectively.
"ABR ADVANCE" means a Bridge Advance that bears interest as
provided in Section 2.06(a)(i)(A).
"ACQUIRED ASSETS" has the meaning specified in the Preliminary
Statements.
"ACQUISITION" has the meaning specified in the Preliminary
Statements.
"ACQUISITION AGREEMENT" has the meaning specified in the
Preliminary Statements.
"ADMINISTRATIVE AGENT" has the meaning specified in the
recital of parties to this Agreement.
"ADMINISTRATIVE AGENT'S ACCOUNT" means the account of the
Administrative Agent maintained by the Administrative Agent with
Citibank, N.A. New York Branch at its office at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ABA No. 021 000 089, Account No. ▇▇▇▇▇▇▇▇,
Account Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Senior Funding Inc., Reference: Time
Warner (Bridge Credit Agreement) or such other account as the
Administrative Agent shall specify in writing to the Lenders.
"ADVANCE" has the meaning specified in Section 2.01.
"AFFILIATE" means as to any Person, any other Person that,
directly or indirectly, is in control of, is controlled by, or is under
common control with, such Person. For purposes of this definition,
"control" of a Person means the power, directly or indirectly, either
to (a) vote 10% or more of the securities having ordinary voting power
for the election of directors (or persons performing similar functions)
of such Person or (b) direct or cause the direction of the management
and policies of such Person, whether by contract or otherwise.
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"ANNUALIZED CONSOLIDATED EBITDA" means for any fiscal quarter,
an amount equal to Consolidated EBITDA for such period multiplied by
four.
"APPLICABLE LENDING OFFICE" means, with respect to each
Lender, such Lender's Domestic Lending Office in the case of an ABR
Advance and such Lender's Eurodollar Lending Office in the case of a
Eurodollar Rate Advance.
"APPLICABLE MARGIN" means, at any time, a percentage per annum
at such time as set forth below:
During the period: Eurodollar Rate Advances ABR Advances
----------------- ------------------------ ------------
Effective Date to December 1, 2000 2.25% 1.25%
December 1, 2000 to February 28, 2001 3.25% 2.25%
February 28, 2001 to April 30, 2001 3.75% 2.75%
April 30, 2001 to July 31, 2001 4.25% 3.25%
July 31, 2001 and thereafter 5.00% 4.00%
provided that the Applicable Margin shall be increased by 1.5% at any
time during which any senior unsecured non-credit enhanced Indebtedness
of the Borrower is rated lower than B3 by ▇▇▇▇▇'▇ or B- by S&P.
"APPLICABLE PREMIUM" means, with respect to any Non-Call
Advances, the greater of (a) 1.0% of the then outstanding principal
amount of such Non-Call Advances and (b) (i) the present value as of
the applicable prepayment date determined two Business Days prior to
such date of all remaining required interest and principal payments due
on such Advances, computed using a discount rate equal to the Treasury
Rate determined two Business Days prior to such prepayment date plus 50
basis points minus (ii) the then outstanding principal amount of such
Advances minus (iii) accrued interest paid on the date of prepayment.
"ARRANGER" has the meaning specified in the recital of parties
to this Agreement.
"ASSET EXCHANGE" means any exchange of operating assets for
other operating assets in a Permitted Line of Business and, subject to
the last sentence of this definition, of comparable value and use to
those assets being exchanged, including (a) exchanges involving the
transfer or acquisition (or both transfer and acquisition) of Capital
Stock of a Person so long as 100% of the Capital Stock of such Person
is transferred or acquired, as the case may be, and (b) fiber capacity
and network swaps. It is understood that exchanges of the kind
described above as to which a portion of the consideration paid or
received is in the form of cash shall nevertheless constitute "ASSET
EXCHANGES" for the
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purposes of this Agreement so long as the aggregate consideration
received by any Subsidiary of the Borrower in connection with such
exchange represents fair market value for the assets and cash being
transferred by the Borrower and its Subsidiaries.
"ASSET SALE" means any Disposition of property or series of
related Dispositions of property (excluding (i) Asset Exchanges
pursuant to which no cash consideration is received by any Subsidiary
of the Borrower and (ii) any such Disposition (A) permitted by clause
(i), (ii), (iii), (iv) or (v) of Section 5.02(d) or (B) in connection
with any issuance or sale of the Capital Stock of the Borrower) that
yields gross proceeds to the Borrower or any of its Subsidiaries
(valued at the initial principal amount thereof in the case of non-cash
proceeds consisting of notes or other debt securities or at the
accreted amount thereof in the case of zero coupon or discount notes or
other debt securities and valued at fair market value in the case of
other non-cash proceeds) in excess of $5,000,000.
"ASSET SALE PREPAYMENT DATE" has the meaning specified in
Section 5.02(e) in Exhibit G hereto.
"ASSIGNMENT AND ACCEPTANCE" means an assignment and acceptance
entered into by a Lender and an Eligible Assignee, and accepted by the
Administrative Agent, in accordance with Section 8.07 and in
substantially the form of Exhibit C hereto.
"AVAILABILITY PERIOD" means the period from the Effective Date
to the earlier of (a) March 31, 2001 and (b) the date of termination in
whole of the Commitments pursuant to Section 2.04 or 6.01.
"AVERAGE LIFE" means, at any date of determination with
respect to any debt security, the quotient obtained by dividing (a) the
sum of the products of (i) the number of years from such date of
determination to the dates of each successive scheduled principal
payment of such debt security and (ii) the amount of such principal
payment by (b) the sum of all such principal payments.
"BANK CREDIT AGREEMENTS" means credit agreements or similar
facilities or arrangements (including replacements or refinancings
thereof) made available from time to time to the Borrower and its
Subsidiaries from banks and/or other financial institutions for the
incurrence of Indebtedness, including letters of credit and any related
notes, guarantees, collateral and security documents, instruments and
agreements executed in connection therewith, as amended.
"BANK CREDIT DOCUMENTS" means the Bank Credit Facility and
each of the "LOAN DOCUMENTS" referred to therein, in each case as
amended, to the extent permitted under Section 5.02(h).
"BANK CREDIT FACILITY" has the meaning specified in the
Preliminary Statements.
"BOARD" means the Board of Governors of the Federal Reserve
System of the United States (or any successor).
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"BOARD OF DIRECTORS" means the Board of Directors of the
Borrower.
"BOARD RESOLUTION" means a copy of a resolution certified by
the Secretary or an Assistant Secretary of the Borrower to have been
duly adopted by the Board of Directors and to be in full force and
effect on the date of such certification, and delivered to the
Administrative Agent.
"BORROWER" has the meaning specified in the recital of parties
to this Agreement.
"BORROWER'S ACCOUNT" means the account of the Borrower as the
Borrower shall specify in writing to the Administrative Agent not later
than 5 Business Days before the Initial Extension of Credit.
"BORROWING" means a borrowing consisting of simultaneous
Advances of the same Type made by the Lenders.
"BRIDGE ADVANCE" means an Advance outstanding prior to the
consummation of the Exchange.
"BRIDGE FACILITY" means, at any time, the aggregate amount of
the Lenders' Commitments at such time.
"BRIDGE DOCUMENTS" means (a) this Agreement, (b) the Notes,
(c) the Exchange Documents, (d) the Commitment Letter and (e) the Side
Letter, in each case as amended.
"BRIDGE NOTE" means a promissory note of the Borrower payable
to the order of any Lender, in substantially the form of Exhibit A-1
hereto, evidencing the aggregate indebtedness of the Borrower to such
Lender resulting from the Bridge Advances owing to such Lender, as
amended.
"BUSINESS" has the meaning specified in Section 4.01(q)(ii).
"BUSINESS DAY" means a day of the year on which banks are not
required or authorized by law to close in New York City and, if the
applicable Business Day relates to any Eurodollar Rate Advances, on
which dealings are carried on in the London interbank market.
"BUSINESS PLAN" means the business plan of the Borrower and
its Subsidiaries set forth in the Confidential Information Memorandum
of the Borrower dated October 2000 relating to the Bank Credit
Facility.
"CALLABLE ADVANCES" means all Advances other than Non-Call
Advances.
"CAPITAL EXPENDITURES" means, for any period, with respect to
any Person, the aggregate of all expenditures by such Person and its
Subsidiaries for the acquisition or leasing (pursuant to a capital
lease) of fixed or capital assets or additions to equipment (including
replacements, capitalized repairs and improvements during such period)
that
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should be capitalized under GAAP on a consolidated balance sheet of
such Person and its Subsidiaries.
"CAPITAL LEASE OBLIGATIONS" means as to any Person, the
obligations of such Person to pay rent or other amounts under any lease
of (or other arrangement conveying the right to use) real or personal
property, or a combination thereof, which obligations are required to
be classified and accounted for as capital leases on a balance sheet of
such Person under GAAP and, for the purposes of this Agreement, the
amount of such obligations at any time shall be the capitalized amount
thereof at such time determined in accordance with GAAP.
"CAPITAL STOCK" means any and all shares, interests,
participations or other equivalents (however designated) of capital
stock of a corporation, any and all equivalent ownership interests in a
Person (other than a corporation) and any and all warrants, rights or
options to purchase any of the foregoing.
"CASH EQUIVALENTS" means (a) marketable direct obligations
issued by, or unconditionally guaranteed by, the United States
Government or issued by any agency thereof and backed by the full faith
and credit of the United States, in each case maturing within one year
from the date of acquisition; (b) certificates of deposit, time
deposits, eurodollar time deposits or overnight bank deposits having
maturities of six months or less from the date of acquisition issued by
any Lender or by any commercial bank organized under the laws of the
United States or any state thereof having combined capital and surplus
of not less than $500,000,000; (c) commercial paper of an issuer rated
at least A-1 by S&P or P-1 by ▇▇▇▇▇'▇, or carrying an equivalent
rating by a nationally recognized rating agency, if both of the two
named rating agencies cease publishing ratings of commercial paper
issuers generally, and maturing within six months from the date of
acquisition; (d) repurchase obligations of any Lender or of any
commercial bank satisfying the requirements of clause (b) of this
definition, having a term of not more than 30 days, with respect to
securities issued or fully guaranteed or insured by the United States
government; (e) securities with maturities of one year or less from the
date of acquisition issued or fully guaranteed by any state,
commonwealth or territory of the United States, by any political
subdivision or taxing authority of any such state, commonwealth or
territory or by any foreign government, the securities of which state,
commonwealth, territory, political subdivision, taxing authority or
foreign government (as the case may be) are rated at least A by S&P or
A by ▇▇▇▇▇'▇; (f) securities with maturities of six months or less from
the date of acquisition backed by standby letters of credit issued by
any Lender or any commercial bank satisfying the requirements of clause
(b) of this definition; or (g) shares of money market mutual or similar
funds which invest substantially exclusively in assets satisfying the
requirements of clauses (a) through (f) of this definition.
"CASH PAY PREFERRED STOCK" means any class or series of
Capital Stock of any Person that by its terms or otherwise (a) is
required to be redeemed prior to the date (the "EXPIRATION DATE") which
is one year after the final maturity date of the Advances and the
expiration of the Commitments hereunder, (b) is redeemable at the
option of the holder of such class or series of Capital Stock at any
time prior to the Expiration Date, (c)
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is convertible into or exchangeable for (unless solely at the option of
such Person) Capital Stock referred to in clause (a) or (b) above or
Indebtedness having a scheduled maturity prior to the Expiration Date
or that would require cash payment of interest prior to the Expiration
Date or (d) provides for payment of dividends (other than dividends
payable solely in common stock or in Non-Cash Pay Preferred Stock of
the Borrower) prior to the Expiration Date; provided, that no Capital
Stock shall constitute Cash Pay Preferred Stock as a result of
containing provisions that give holders the right to require such
Person to repurchase or redeem such Capital Stock upon the occurrence
of (x) a "change of control" (or similar event, however defined) or (y)
the sale of all or substantially all of such Person's assets (or
similar event, however defined).
"CHANGE OF CONTROL" means such time as (a) the Permitted
Investors shall cease to have the power to vote or direct the voting of
securities having at least 30% of the ordinary voting power for the
election of directors of the Borrower (determined on a fully diluted
basis); (b) the Permitted Investors shall cease to own of record and
beneficially, directly or indirectly, securities of the Borrower
representing at least 30% (determined on a fully diluted basis) of the
economic interests therein; (c) any "person" or "group" (as such terms
are used in Sections 13(d) and 14(d) of the Exchange Act), excluding
the Permitted Investors, shall become, or obtain rights (whether by
means or warrants, options or otherwise) to become, the "beneficial
owner" (as defined in Rules 13(d)-3 and 13(d)-5 under the Exchange
Act), directly or indirectly, of more than the percentage of the
outstanding common stock of the Borrower at the time owned and
controlled by the Permitted Investors; (d) the Board of Directors shall
cease to consist of a majority of Continuing Directors; (e) the
Borrower shall cease to own and control, of record and beneficially,
directly, 100% of each class of outstanding Capital Stock of THI free
and clear of all Liens (except Liens created by the Bank Credit
Documents) or (f) a Specified Change of Control shall occur; provided,
that the merger of Time Warner, Inc. with AOL, Inc. is expressly
permitted hereunder and shall not constitute a Change of Control.
"CHANGE OF CONTROL OFFER" has the meaning specified in Section
2.05(b)(vi).
"CHANGE OF CONTROL PAYMENT" has the meaning specified in
Section 2.05(b)(vi).
"CHANGE OF CONTROL PAYMENT DATE" has the meaning specified in
Section 2.05(b)(vi).
"CODE" means the Internal Revenue Code of 1986, as amended
from time to time.
"COMMITMENT" means, with respect to any Lender at any time,
the amount set forth opposite such Lender's name on Schedule I hereto
under the caption "Commitment" or, if such Lender has entered into one
or more Assignment and Acceptances, set forth for such Lender in the
Register maintained by the Administrative Agent pursuant to Section
8.07(d) as such Lender's "Commitment", as such amount may be reduced at
or prior to such time pursuant to Section 2.04.
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"COMMITMENT LETTER" means the letter dated December 4, 2000
among the Borrower, MSSF, ▇▇▇▇▇▇ Commercial Paper Inc., The Chase
Manhattan Bank, Bear ▇▇▇▇▇▇▇ Corporate Lending Inc. and ABN AMRO Bank
N.V., as amended.
"COMMONLY CONTROLLED ENTITY" means an entity, whether or not
incorporated, that together with the Borrower is treated as a single
employer under Section 414(b) or (c) of the Code or, solely for
purposes of Section 302 of ERISA and Section 412 of the Code, is
treated as a single employer under Section 414 of the Code.
"COMPLIANCE CERTIFICATE" means a certificate duly executed by
a Responsible Officer substantially in the form of Exhibit D.
"CONFIDENTIAL INFORMATION" has the meaning specified in
Section 8.09.
"CONSOLIDATED EBITDA" means for any period, Consolidated Net
Income for such period plus, without duplication and to the extent
reflected as a charge in the statement of such Consolidated Net Income
for such period, the sum of (a) income tax expense, (b) interest
expense, amortization or writeoff of debt discount and debt issuance
costs and commissions, discounts and other fees and charges associated
with Indebtedness (including the Advances), (c) depreciation and
amortization expense, (d) amortization of intangibles (including, but
not limited to, goodwill) and organization costs, and (e) any
extraordinary, unusual or non-recurring non-cash expenses or losses
(including, whether or not otherwise includable as a separate item in
the statement of such Consolidated Net Income for such period, non-cash
losses on sales of assets outside of the ordinary course of business),
provided, that the amounts referred to in this clause (e) shall not, in
the aggregate, exceed $20,000,000 for any fiscal year of the Borrower,
or, in the case of such non-cash losses on sales of the Acquired Assets
or any non-cash losses on minority investments or investments in
unconsolidated Subsidiaries, $30,000,000 and minus, to the extent
included in the statement of such Consolidated Net Income for such
period, the sum of (i) interest income and (ii) any extraordinary,
unusual or non-recurring income or gains (other than any reciprocal
compensation income or gains to the extent included in operating
income), including, whether or not otherwise includable as a separate
item in the statement of such Consolidated Net Income for such period,
gains on the sales of assets outside of the ordinary course of
business.
"CONSOLIDATED LEVERAGE RATIO" means as of any day, the ratio
of (a) Consolidated Net Total Debt on such day to (b) Annualized
Consolidated EBITDA for the most recent complete fiscal quarter of the
Borrower.
"CONSOLIDATED NET INCOME" means for any period, the
consolidated net income (or loss) of the Borrower and its Subsidiaries,
determined on a consolidated basis in accordance with GAAP; provided
that there shall be excluded (a) the income (or deficit) of any Person
accrued prior to the date it becomes a Subsidiary of the Borrower or is
merged into or consolidated with the Borrower or any of its
Subsidiaries, (b) the income (or deficit) of any Person (other than a
Subsidiary of the Borrower) in which the Borrower or any of its
Subsidiaries has an ownership interest, except to the extent that any
such income is actually received by the Borrower or such Subsidiary in
the form of
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dividends or similar distributions and (c) the undistributed earnings
of any Subsidiary of the Borrower to the extent that the declaration or
payment of dividends or similar distributions by such Subsidiary is not
at the time permitted by the terms of any provision of any Contractual
Obligation (other than under any Bridge Document) or Requirement of
Law, applicable to such Subsidiary.
"CONSOLIDATED NET SENIOR DEBT" means as of any day, the excess
of (a) Consolidated Senior Debt at such date over (b) the aggregate
amount of cash and Cash Equivalents reflected on a consolidated balance
sheet of the Subsidiaries of the Borrower at such date in excess of
$50,000,000.
"CONSOLIDATED NET TOTAL DEBT" means as of any day, the excess
of (a) Consolidated Total Debt at such date over (b) the aggregate
amount of cash and Cash Equivalents reflected on a consolidated balance
sheet of the Borrower at such date in excess of $50,000,000.
"CONSOLIDATED SENIOR DEBT" means at any date, the aggregate
principal amount of all Senior Indebtedness (other than, in the case of
contingent obligations of the type described in clause (f) of the
definition of "Indebtedness", any such obligations not constituting L/C
Obligations) of the Subsidiaries of the Borrower at such date taken as
a whole, determined on a consolidated basis in accordance with GAAP.
"CONSOLIDATED TOTAL DEBT" means at any date, the aggregate
principal amount of all Indebtedness (other than, in the case of
contingent obligations of the type described in clause (f) of the
definition of "Indebtedness", any such obligations not constituting L/C
Obligations) of the Borrower and its Subsidiaries at such date,
determined on a consolidated basis in accordance with GAAP.
"CONTINUING DIRECTORS" means the directors of the Borrower on
the Effective Date and each other director, if, in each case, such
other director's nomination for election to the Board of Directors is
recommended by at least a majority of the then Continuing Directors or
such other director receives the vote of the Permitted Investors in his
or her election by the shareholders of the Borrower.
"CONTRACTUAL OBLIGATION" means as to any Person, any provision
of any security issued by such Person or of any agreement, instrument
or other undertaking to which such Person is a party or by which it or
any of its property is bound.
"CONTROL INVESTMENT AFFILIATE" means, as to any Person, any
other Person that (a) directly or indirectly, is in control of, is
controlled by, or is under common control with, such Person and (b) is
organized by such Person primarily for the purpose of making equity or
debt investments in one or more companies. For purposes of this
definition, "control" of a Person means the power, directly or
indirectly, to direct or cause the direction of the management and
policies of such Person whether by contract or otherwise.
"CONVERSION", "CONVERT" and "CONVERTED" each refer to a
conversion of Advances of one Type into Advances of the other Type
pursuant to Section 2.08 or 2.09.
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"DEFAULT" means any Event of Default or any event that would
constitute an Event of Default but for the requirement that notice be
given or time elapse or both.
"DISPOSITION" means with respect to any property, any sale,
lease, sale and leaseback, assignment, conveyance, transfer or other
disposition thereof, including pursuant to an exchange for other
property. The terms "DISPOSE" and "DISPOSED OF" shall have correlative
meanings.
"DOLLARS" and "$" means dollars in lawful currency of the
United States.
"DOMESTIC LENDING OFFICE" means, with respect to any Lender,
the office of such Lender specified as its "Domestic Lending Office"
opposite its name on Schedule I hereto or in the Assignment and
Acceptance pursuant to which it became a Lender, as the case may be, or
such other office of such Lender as such Lender may from time to time
specify to the Borrower and the Administrative Agent.
"EFFECTIVE DATE" means the first date on which the conditions
set forth in Article III shall have been satisfied.
"ELIGIBLE ASSIGNEE" means (a) a Lender; (b) an Affiliate of a
Lender; and (c) any other Person approved by the Administrative Agent
and, unless a Default has occurred and is continuing at the time any
assignment is effected pursuant to Section 8.07, the Borrower, such
approval not to be unreasonably withheld or delayed; provided, however,
that neither the Borrower nor any Affiliate of the Borrower shall
qualify as an Eligible Assignee under this definition.
"ENVIRONMENTAL LAWS" means any and all applicable foreign,
Federal, state, local or municipal laws, rules, orders, regulations,
statutes, ordinances, codes, decrees, requirements of any Governmental
Authority or other Requirements of Law (including common law)
regulating, relating to or imposing liability or standards of conduct
concerning protection of human health (as relating to exposure to
Materials of Environmental Concern) or the environment.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended from time to time.
"EUROCURRENCY LIABILITIES" has the meaning specified in
Regulation D of the Board of Governors of the Federal Reserve System,
as in effect from time to time.
"EUROCURRENCY RESERVE REQUIREMENTS" means for any day as
applied to a Eurodollar Rate Advance, the aggregate (without
duplication) of the maximum rates (expressed as a decimal fraction) of
reserve requirements in effect on such day (including basic,
supplemental, marginal and emergency reserves under any regulations of
the Board or other Governmental Authority having jurisdiction with
respect thereto) dealing with reserve requirements prescribed for
eurocurrency funding (currently referred to as "Eurocurrency
Liabilities" in Regulation D of the Board) maintained by a member bank
of the Federal Reserve System.
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"EURODOLLAR BASE RATE" means with respect to each day during
each Interest Period pertaining to a Eurodollar Rate Advance, the rate
per annum determined on the basis of the rate for deposits in Dollars
for a period equal to such Interest Period commencing on the first day
of such Interest Period appearing on Page 3750 of the Telerate screen
as of 11:00 A.M., London time, two Business Days prior to the beginning
of such Interest Period. In the event that such rate does not appear on
Page 3750 of the Telerate screen (or otherwise on such screen), the
"Eurodollar Base Rate" shall be determined by reference to such other
comparable publicly available service for displaying eurodollar rates
as may be selected by the Administrative Agent or, in the absence of
such availability, by reference to the rate at which the Administrative
Agent is offered Dollar deposits at or about 11:00 A.M., New York City
time, two Business Days prior to the beginning of such Interest Period
in the interbank eurodollar market where its eurodollar and foreign
currency and exchange operations are then being conducted for delivery
on the first day of such Interest Period for the number of days
comprised therein.
"EURODOLLAR LENDING OFFICE" means, with respect to any Lender,
the office of such Lender specified as its "Eurodollar Lending Office"
opposite its name on Schedule I hereto or in the Assignment and
Acceptance pursuant to which it became a Lender (or, if no such office
is specified, its Domestic Lending Office), or such other office of
such Lender as such Lender may from time to time specify to the
Borrower and the Administrative Agent.
"EURODOLLAR RATE" means with respect to each day during each
Interest Period pertaining to a Eurodollar Rate Advance, a rate per
annum determined for such day in accordance with the following formula
(rounded upward to the nearest 1/100th of 1%):
Eurodollar Base Rate
----------------------------------------
1.00 - Eurocurrency Reserve Requirements
"EURODOLLAR RATE ADVANCE" means a Bridge Advance that bears
interest as provided in Section 2.06(a)(i)(B).
"EVENTS OF DEFAULT" has the meaning specified in Section 6.01.
"EXCHANGE" has the meaning specified in Section 2.03(b).
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as
amended.
"EXCHANGE ADVANCE" means an Advance outstanding from and after
the consummation of the Exchange.
"EXCHANGE DATE" means the earlier to occur of (a) the one year
anniversary of the date of the Initial Extension of Credit and (b)
January 15, 2002.
"EXCHANGE DOCUMENTS" means the Exchange Indenture, the
Exchange Securities, the Rollover Notes and the Exchange Registration
Rights Agreement.
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"EXCHANGE INDENTURE" means the indenture, containing
substantially the same covenants and the related definitions set forth
in Exhibit G hereto with such amendments thereto as may be approved by
the Required Lenders and the Borrower, events of default and related
definitions corresponding to those set forth in the Existing High Yield
Indenture with such amendments thereto as may be approved by the
Required Lenders and the Borrower, and otherwise in form and substance
reasonably satisfactory to the Required Lenders, as amended, pursuant
to which the Exchange Securities are to be issued.
"EXCHANGE REGISTRATION RIGHTS AGREEMENT" means the
registration rights agreement containing terms set forth in Section
2.03(c)(ii), and the related definitions, and otherwise in form and
substance reasonably satisfactory to the Required Lenders, as amended.
"EXCHANGE SECURITIES" means the senior notes, in substantially
the form set forth in the Exchange Indenture, to be issued under the
Exchange Indenture pursuant to Section 2.03(c) in connection with the
consummation of the Exchange.
"EXISTING CREDIT AGREEMENT" has the meaning specified in the
Preliminary Statements.
"EXISTING HIGH YIELD INDENTURE" means the Indenture dated as
of July 21, 1998 among the Borrower, Time Warner Telecom LLC and The
Chase Manhattan Bank, as Trustee, as amended, pursuant to which the
9-3/4% Senior Notes due 2008 were issued.
"EXISTING HIGH YIELD NOTES" means the Borrower's senior notes
issued pursuant to the Existing High Yield Indenture.
"EXPIRATION DATE" has the meaning specified in the definition
of "Cash Pay Preferred Stock".
"FCC" means the Federal Communications Commission or any
successor Governmental Authority.
"FEDERAL FUNDS EFFECTIVE RATE" means for any day, the weighted
average of the rates on overnight federal funds transactions with
members of the Federal Reserve System arranged by federal funds
brokers, as published on the next succeeding Business Day by the
Federal Reserve Bank of New York, or, if such rate is not so published
for any day that is a Business Day, the average of the quotations for
the day of such transactions received by the Administrative Agent from
three federal funds brokers of recognized standing selected by it.
"FIXED RATE" means a rate per annum equal to the higher of (a)
the sum of (i) the yield to maturity of the Existing High Yield Notes
determined as of the Exchange Date and (ii) 0.75% and (b) the sum of
(i) the Eurodollar Rate in effect at the Exchange Date for an Interest
Period of 3 months, (ii) the Applicable Margin in effect at the
Exchange Date and (iii) 1%.
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"GAAP" means generally accepted accounting principles in the
United States as in effect from time to time, except that for purposes
of Section 5.04, GAAP shall be determined on the basis of such
principles in effect on the date hereof and consistent with those used
in the preparation of the most recent audited financial statements
referred to in Section 4.01(a)(ii). In the event that any "Accounting
Change" (as defined below) shall occur and such change results in a
change in the method of calculation of financial covenants, standards
or terms in this Agreement, then the Borrower and the Administrative
Agent agree to enter into negotiations in order to amend such
provisions of this Agreement so as to equitably reflect such Accounting
Changes with the desired result that the criteria for evaluating the
Borrower's financial condition shall be the same after such Accounting
Changes as if such Accounting Changes had not been made. Until such
time as such an amendment shall have been executed and delivered by the
Borrower, the Administrative Agent and the Required Lenders, all
financial covenants, standards and terms in this Agreement shall
continue to be calculated or construed as if such Accounting Changes
had not occurred. "ACCOUNTING CHANGES" refers to changes in accounting
principles required by the promulgation of any rule, regulation,
pronouncement or opinion by the Financial Accounting Standards Board of
the American Institute of Certified Public Accountants or, if
applicable, the SEC.
"GOVERNMENTAL AUTHORITY" means any nation or government, any
state or other political subdivision thereof, any agency, authority,
instrumentality, regulatory body, court, central bank or other entity
exercising executive, legislative, judicial, taxing, regulatory or
administrative functions of or pertaining to government, any securities
exchange and any self-regulatory organization (including the National
Association of Insurance Commissioners).
"GUARANTEE OBLIGATION" means as to any Person (the
"GUARANTEEING PERSON"), any obligation of (a) the guaranteeing person
or (b) another Person (including any bank under any letter of credit)
to induce the creation of which the guaranteeing person has issued a
reimbursement, counterindemnity or similar obligation, in either case
guaranteeing or in effect guaranteeing any Indebtedness, leases,
dividends or other obligations (the "PRIMARY OBLIGATIONS") of any other
third Person (the "PRIMARY OBLIGOR") in any manner, whether directly or
indirectly, including any obligation of the guaranteeing person,
whether or not contingent, (i) to purchase any such primary obligation
or any property constituting direct or indirect security therefor, (ii)
to advance or supply funds (1) for the purchase or payment of any such
primary obligation or (2) to maintain working capital or equity capital
of the primary obligor or otherwise to maintain the net worth or
solvency of the primary obligor, (iii) to purchase property, securities
or services primarily for the purpose of assuring the owner of any such
primary obligation of the ability of the primary obligor to make
payment of such primary obligation or (iv) otherwise to assure or hold
harmless the owner of any such primary obligation against loss in
respect thereof; provided, however, that the term Guarantee Obligation
shall not include endorsements of instruments for deposit or collection
in the ordinary course of business. The amount of any Guarantee
Obligation of any guaranteeing person shall be deemed to be the lower
of (x) an amount equal to the stated or determinable amount of the
primary obligation in respect of which such Guarantee Obligation is
made and (y) the maximum amount for which such guaranteeing person may
be liable pursuant to the
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terms of the instrument embodying such Guarantee Obligation, unless
such primary obligation and the maximum amount for which such
guaranteeing person may be liable are not stated or determinable, in
which case the amount of such Guarantee Obligation shall be such
guaranteeing person's maximum reasonably anticipated liability in
respect thereof as determined by the Borrower in good faith.
"HEDGE AGREEMENTS" means all interest rate swaps, caps or
collar agreements or similar arrangements dealing with interest rates
or currency exchange rates or the exchange of nominal interest
obligations, either generally or under specific contingencies.
"INDEBTEDNESS" means of any Person at any date, without
duplication, (a) all indebtedness of such Person for borrowed money,
(b) all obligations of such Person for the deferred purchase price of
property or services (other than current trade payables incurred in the
ordinary course of such Person's business), (c) all obligations of such
Person evidenced by notes, bonds, debentures or other similar
instruments, (d) all indebtedness created or arising under any
conditional sale or other title retention agreement with respect to
property acquired by such Person (even though the rights and remedies
of the seller or lender under such agreement in the event of default
are limited to repossession or sale of such property), (e) all Capital
Lease Obligations of such Person, (f) all obligations of such Person,
contingent or otherwise, as an account party or applicant under or in
respect of acceptances, letters of credit, surety bonds or similar
arrangements, (g) all Cash Pay Preferred Stock, (h) all Guarantee
Obligations of such Person in respect of obligations of the kind
referred to in clauses (a) through (g) above, (i) all obligations of
the kind referred to in clauses (a) through (h) above secured by (or
for which the holder of such obligation has an existing right,
contingent or otherwise, to be secured by) any Lien on property
(including accounts and contract rights) owned by such Person, whether
or not such Person has assumed or become liable for the payment of such
obligation, and (j) for the purposes of Sections 5.02(a) and 6.01(e)
only, all obligations of such Person in respect of derivative
transactions (including, without limitation, Hedge Agreements). For
purposes of this definition, the principal amount of any Cash Pay
Preferred Stock shall be deemed to be its liquidation value. The
Indebtedness of any Person shall include the Indebtedness of any other
entity (including any partnership in which such Person is a general
partner) to the extent such Person is liable therefor as a result of
such Person's ownership interest in or other relationship with such
entity, except to the extent the terms of such Indebtedness expressly
provide that such Person is not liable therefor.
"INDEMNIFIED PARTY" has the meaning specified in Section
8.04(b).
"INFORMATION MEMORANDUM" means the information memorandum, if
any, used by the Arranger in connection with the syndication of the
Commitments.
"INITIAL EXTENSION OF CREDIT" means the occurrence of the
initial Borrowing hereunder.
"INITIAL LENDERS" has the meaning specified in the recital of
parties to this Agreement.
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"INSOLVENCY" means with respect to any Multiemployer Plan, the
condition that such Plan is insolvent within the meaning of Section
4245 of ERISA.
"INSOLVENT" means pertaining to a condition of Insolvency.
"INTELLECTUAL PROPERTY" means the collective reference to all
rights, priorities and privileges relating to intellectual property,
whether arising under United States, multinational or foreign laws or
otherwise, including copyrights, copyright licenses, patents, patent
licenses, trademarks, trademark licenses, technology, know-how and
processes, and all rights to ▇▇▇ at law or in equity for any
infringement or other impairment thereof, including the right to
receive all proceeds and damages therefrom.
"INTERCOMPANY SUBORDINATED NOTE" means a promissory note
subordinated on terms and conditions satisfactory to the Administrative
Agent, which note, in any event, (a) shall be subordinated to all other
obligations of the Borrower and its Subsidiaries, (b) shall not be
assignable without the prior written consent of the Administrative
Agent and (c) the principal and interest payments in respect of which
shall not be made unless expressly permitted by Section 5.02(e).
"INTEREST PERIOD" means, for each Eurodollar Rate Advance
comprising part of the same Borrowing, the period commencing on the
date of such Eurodollar Rate Advance or the date of the Conversion of
any ABR Advance into such Eurodollar Rate Advance, and ending on the
last day of the period selected by the Borrower pursuant to the
provisions below and, thereafter, each subsequent period commencing on
the last day of the immediately preceding Interest Period and ending on
the last day of the period selected by the Borrower pursuant to the
provisions below. The duration of each such Interest Period shall be
one, two, three or six months, as the Borrower may, upon notice
received by the Administrative Agent not later than 11:00 A.M. (New
York City time) on the third Business Day prior to the first day of
such Interest Period, select; provided, however, that:
(a) the Borrower may not select any Interest Period
with respect to any Eurodollar Rate Advance that ends after
any principal repayment date for the Bridge Facility unless,
after giving effect to such selection, the aggregate principal
amount of ABR Advances and of Eurodollar Rate Advances having
Interest Periods that end on or prior to such principal
repayment date for the Bridge Facility shall be at least equal
to the aggregate principal amount of Advances under the Bridge
Facility due and payable on or prior to such date;
(b) Interest Periods commencing on the same date for
Eurodollar Rate Advances comprising part of the same Borrowing
shall be of the same duration;
(c) whenever the last day of any Interest Period
would otherwise occur on a day other than a Business Day, the
last day of such Interest Period shall be extended to occur on
the next succeeding Business Day, provided, however, that, if
such extension would cause the last day of such Interest
Period to occur in the
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next following calendar month, the last day of such Interest
Period shall occur on the next preceding Business Day; and
(d) whenever the first day of any Interest Period
occurs on a day of an initial calendar month for which there
is no numerically corresponding day in the calendar month that
succeeds such initial calendar month by the number of months
equal to the number of months in such Interest Period, such
Interest Period shall end on the last Business Day of such
succeeding calendar month.
"INTERNAL REVENUE CODE" means the Internal Revenue Code of
1986, as amended from time to time, and the regulations promulgated and
rulings issued thereunder.
"INVESTMENT GRADE" means a rating of the Existing High Yield
Notes by both S&P and ▇▇▇▇▇'▇, each such rating being in one of such
agency's four highest generic rating categories that signifies
investment grade (i.e., BBB- (or the equivalent) or higher by S&P and
Baa3 (or the equivalent) or higher by ▇▇▇▇▇'▇); provided, in each case,
such ratings are publicly available; provided further, that in the
event Moody's or S&P is no longer in existence, for purposes of
determining whether the Existing High Yield Notes are rated "Investment
Grade", such organization may be replaced by a nationally recognized
statistical rating organization (as defined in Rule 436 under the
Securities Act) designated by the Borrower, notice of which designation
shall be given to the Administrative Agent.
"INVESTMENTS" has the meaning specified in Section 5.02(g).
"L/C OBLIGATIONS" means at any time, an amount equal to the
sum of (a) the aggregate then undrawn and unexpired amount of the then
outstanding Letters of Credit (as defined in the Bank Credit Facility)
and (b) the aggregate amount of drawings under Letters of Credit that
have not then been reimbursed pursuant to Section 3.5 of the Bank
Credit Facility.
"LENDERS" means the Initial Lenders and each Person that shall
become a Lender hereunder pursuant to Section 8.07 for so long as such
Initial Lender or Person, as the case may be, shall be a party to this
Agreement.
"LIEN" means any mortgage, pledge, hypothecation, assignment,
deposit arrangement, encumbrance, lien (statutory or other), charge or
other security interest or any preference, priority or other security
agreement or preferential arrangement of any kind or nature whatsoever
(including any conditional sale or other title retention agreement and
any capital lease having substantially the same economic effect as any
of the foregoing).
"MATERIAL ADVERSE CHANGE" means any material adverse condition
or material adverse change in or affecting the business, operations,
properties or financial condition of the Borrower and its Subsidiaries,
taken as a whole.
"MATERIAL ADVERSE EFFECT" means a material adverse effect on
(a) the business, property, operations or financial condition of the
Borrower and its Subsidiaries taken as a
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whole or (b) the validity or enforceability of this Agreement or any of
the other Bridge Documents or the rights or remedies of the
Administrative Agent or the Lenders hereunder or thereunder.
"MATERIALS OF ENVIRONMENTAL CONCERN" means any gasoline or
petroleum (including crude oil or any fraction thereof) or petroleum
products or any hazardous or toxic substances, materials or wastes,
defined or regulated as such in or under any Environmental Law,
including asbestos, polychlorinated biphenyls and urea-formaldehyde
insulation.
"MATURITY DATE" means the earliest to occur of (a) the one
year anniversary of the date of the Initial Extension of Credit, (b)
January 15, 2002 and (c) the date of termination in whole of the
Commitments pursuant to Section 2.04 or 6.01.
"MS&CO." means ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated, a Delaware
corporation.
"MOODY'S" means ▇▇▇▇▇'▇ Investors Service, Inc. and its
successors.
"MSSF" has the meaning specified in the recital of parties to
this Agreement.
"MULTIEMPLOYER PLAN" means a Plan that is a multiemployer plan
as defined in Section 4001(a)(3) of ERISA.
"NET CASH PROCEEDS" means (a) in connection with any Asset
Sale or Asset Exchange, the proceeds thereof in the form of cash and
Cash Equivalents (including any such proceeds received by way of
deferred payment of principal pursuant to a note or installment
receivable or purchase price adjustment receivable or otherwise, but
only as and when received) of such Asset Sale or Asset Exchange, net of
(i) attorneys' fees, accountants' fees, investment banking fees,
amounts required to be applied to the repayment of Indebtedness secured
by a Lien expressly permitted hereunder on any asset that is the
subject of such Asset Sale or Asset Exchange (other than any Lien
pursuant to a Security Document (as defined in the Bank Credit
Facility)) and other customary fees and expenses actually incurred in
connection therewith, (ii) taxes paid or reasonably estimated to be
payable as a result thereof (after taking into account any available
tax credits or deductions and any tax sharing arrangements) and (iii)
appropriate amounts to be provided by the Borrower or any of its
Subsidiaries, as the case may be, as a reserve required in accordance
with GAAP against any liabilities associated with such Asset Sale or
Asset Exchange and retained by the Borrower or any of its Subsidiaries,
as the case may be, after such Asset Sale or Asset Exchange, including,
without limitation, pension and other post-employment benefit
liabilities and liabilities under any indemnification obligations
associated with such Disposition and (b) in connection with any
issuance or sale of Capital Stock or any incurrence of Indebtedness
(including, without limitation, any Permanent Securities), the cash
proceeds received from such issuance or incurrence, net of attorneys'
fees, investment banking fees, accountants' fees, underwriting
discounts and commissions and other customary fees and expenses
actually incurred in connection therewith.
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"NON-CALL ADVANCE" means any Exchange Advance that has been
designated non-callable pursuant to, and in accordance with, the terms
of Section 8.07(a).
"NON-CASH PAY PREFERRED STOCK" means any Preferred Stock of a
Person that does not qualify as Cash Pay Preferred Stock.
"NON-EXCLUDED TAXES" has the meaning specified in Section
2.11(a).
"NOTE" means a Bridge Note or a Rollover Note.
"NOTICE OF BORROWING" has the meaning specified in Section
2.02(a).
"OBLIGATION" means, the unpaid principal of and interest on
(including interest accruing after the maturity of the Advances and
interest accruing after the filing of any petition in bankruptcy, or
the commencement of any insolvency, reorganization or like proceeding,
relating to the Borrower, whether or not a claim for post-filing or
post-petition interest is allowed in such proceeding) the Advances and
all other obligations and liabilities of the Borrower to the
Administrative Agent or to any Lender (or, in the case of Hedge
Agreements, any affiliate of any Lender), whether direct or indirect,
absolute or contingent, due or to become due, or now existing or
hereafter incurred, which may arise under, out of, or in connection
with, this Agreement, any other Bridge Document, any Hedge Agreement
entered into with any Lender or any affiliate of any Lender or any
other document made, delivered or given in connection herewith or
therewith, whether on account of principal, interest, reimbursement
obligations, fees, indemnities, costs, expenses (including all fees,
charges and disbursements of counsel to the Administrative Agent or to
any Lender that are required to be paid by the Borrower pursuant
hereto) or otherwise.
"OFFER TO PREPAY" has the meaning specified in Section
2.05(b)(iv).
"OTHER TAXES" means any and all present or future stamp or
documentary taxes or any other excise or property taxes, charges or
similar levies arising from any payment made hereunder or from the
execution, delivery or enforcement of, or otherwise with respect to,
this Agreement or any other Bridge Document.
"PBGC" means the Pension Benefit Guaranty Corporation
established pursuant to Subtitle A of Title IV of ERISA (or any
successor).
"PERMANENT FINANCING" means one or more public and/or private
offerings of Permanent Securities to Persons other than the Borrower or
any of its Subsidiaries, in order to refinance all or a portion of the
Obligations owing in respect of the Callable Advances, the Notes and
the callable Exchange Securities.
"PERMANENT SECURITIES" means debt and/or equity securities
issued and sold by the Borrower, any of its Subsidiaries or any direct
or indirect owner of a majority of the Borrower's Voting Stock (other
than Time Warner, Inc.).
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"PERMITTED BANK INDEBTEDNESS" means, at any time, Indebtedness
incurred under the Bank Credit Facility (or any replacement or
refinancing thereof) in an aggregate amount such that the sum of the
aggregate principal amount of term loan borrowings thereunder made from
and after the date hereof and the aggregate principal amount of
Indebtedness outstanding under the Revolver at any time does not exceed
(a) prior to the consummation of the Exchange, $1,000,000,000 and (b)
thereafter, $1,250,000,000.
"PERMITTED ENCUMBRANCES" means with respect to or upon any of
the Acquired Assets, any (a) easement, encroachment or similar
reservation which does not impair the current use, occupancy, or value,
or the marketability of title, of such Acquisition Asset and which
would not individually (or in the aggregate with others) be reasonably
expected to have a material adverse effect on or materially impair the
use or enjoyment of such Acquisition Asset; (b) liens securing the
performance of bids, tenders, leases, contracts (other than for the
repayment of debt), statutory obligations, surety, customs and appeal
bonds and other obligations of like nature, incurred as an incident to
and in the ordinary course of the Seller's business; (c) liens imposed
by law, such as carriers', warehouseman's, mechanics', materialmen's,
landlords', laborers', suppliers' and vendors' liens, incurred in good
faith in the ordinary course of the Seller's business and securing
obligations which are not yet due or which are being contested in good
faith by appropriate proceedings as to which the Seller and its
affiliates and/or the Borrower and its affiliates shall, to the extent
required by GAAP, have set aside on its books appropriate provision for
liability; and (d) extensions, renewals and replacements of liens
referred to in (a) through (c) of this sentence; provided, that any
such extension, renewal or replacement lien shall be limited to the
property or assets covered by the lien extended, renewed or replaced
and that the obligations secured by any such extension, renewal or
replacement lien shall be in an amount not greater than the amount of
the obligations secured by the original lien extended, renewed or
replaced, none of which, individually or in the aggregate, materially
impair the value of the property subject thereto or the use to which
such property is presently put.
"PERMITTED INVESTORS" means the collective reference to Time
Warner Inc., including any successor thereto pursuant to a merger with
AOL, Inc. and its Control Investment Affiliates.
"PERMITTED LINE OF BUSINESS" has the meaning specified in
Section 5.02(n).
"PERMITTED OTHER INDEBTEDNESS" means, at any time,
Indebtedness permitted under Section 5.02(a) at such time other than
(a) Indebtedness under any Bank Credit Agreement (other than the
Permitted Bank Indebtedness) and (b) Indebtedness from any issuance or
sale of any "security" as defined in Section 2(a)(1) of the Securities
Act of 1933, as in effect on the date hereof, other than any
Indebtedness under any Bank Credit Agreement or from any issuance or
sale of any security used to refinance, refund or replace Indebtedness
at its scheduled maturity.
"PERSON" means an individual, partnership, corporation,
limited liability company, business trust, joint stock company, trust,
unincorporated association, joint venture, Governmental Authority or
other entity of whatever nature.
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"PLAN" means at a particular time, any employee benefit plan
that is covered by ERISA and in respect of which the Borrower or a
Commonly Controlled Entity is (or, if such plan were terminated at such
time, would under Section 4069 of ERISA be deemed to be) an "employer"
as defined in Section 3(5) of ERISA.
"PREPAYMENT" has the meaning specified in Section 2.05(b)(iv).
"PREPAYMENT PREMIUM PERCENTAGE" means, at any time, a
percentage equal to the product of (a) the Fixed Rate and (b) the
amount set forth below in effect at such time:
PERIOD AMOUNT
------ ------
After the 5th anniversary of the Exchange Date but 0.5000
prior to the 6th anniversary of the Exchange Date
Thereafter but prior to the 7th anniversary of the 0.3333
Exchange Date Thereafter but prior to the 8th 0.1667
anniversary of the Exchange Date
Thereafter 0.0
"PRIME RATE" means the rate of interest per annum publicly
announced from time to time by the Reference Lender as its prime rate
in effect at its principal office in New York City (the Prime Rate not
being intended to be the lowest rate of interest charged by the
Reference Lender in connection with extensions of credit to debtors).
"PRO FORMA BALANCE SHEET" has the meaning specified in Section
4.01(a)(i).
"PROJECTIONS" has the meaning specified in Section
5.03(b)(iii).
"PROPERTIES" has the meaning specified in Section 4.02(q)(i).
"RECEIPT DATE" means (a) prior to the consummation of the
Exchange, any date on which the Borrower or any of its Subsidiaries
receives any Net Cash Proceeds from any Asset Sale or Asset Exchange
and (b) after the consummation of the Exchange, any Asset Sale
Prepayment Date, and, in each case, a prepayment is required to be made
in connection therewith on any date pursuant to Section 2.05(b).
"REFERENCE LENDER" means The Chase Manhattan Bank.
"REGISTER" has the meaning specified in Section 8.07(d).
"REGULATION U" means Regulation U of the Board, as in effect
from time to time.
"REINVESTMENT DEADLINE" has the meaning specified in the
definition of Reinvestment Notice.
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"REINVESTMENT DEFERRED AMOUNT" means with respect to any
Reinvestment Event, the aggregate Net Cash Proceeds received by the
Borrower or any of its Subsidiaries in connection therewith that are
not applied to prepay the principal amount of the Advances pursuant to
Section 2.05(b) as a result of the delivery of a Reinvestment Notice.
"REINVESTMENT EVENT" means any Asset Sale or Asset Exchange in
respect of which the Borrower has delivered a Reinvestment Notice.
"REINVESTMENT NOTICE" means a written notice executed by a
Responsible Officer stating that (a) no Event of Default has occurred
and is continuing and (b) the Borrower (directly or indirectly through
a Subsidiary) intends and expects to use all or a specified portion of
the Net Cash Proceeds of an Asset Sale or Asset Exchange to acquire or
repair assets useful in its business on or prior to the later of (i)
the date occurring twelve months after the date of receipt of such Net
Cash Proceeds and (ii) the date occurring eighteen months after the
date of receipt of such Net Cash Proceeds so long as such Net Cash
Proceeds were committed to be reinvested within twelve months following
the receipt thereof (such later date, the "REINVESTMENT DEADLINE").
"REINVESTMENT PREPAYMENT AMOUNT" means with respect to any
Reinvestment Event, the Reinvestment Deferred Amount relating thereto
less any amount expended prior to the relevant Reinvestment Prepayment
Date to acquire or repair assets useful in the Borrower's business.
"REINVESTMENT PREPAYMENT DATE" means with respect to any
Reinvestment Event, the earlier of (a) the relevant Reinvestment
Deadline and (b) the date on which the Borrower shall have determined
not to, or shall have otherwise ceased to, acquire or repair assets
useful in the Borrower's business with all or any portion of the
relevant Reinvestment Deferred Amount.
"RELATED DOCUMENTS" means the Acquisition Agreement and the
Bank Credit Documents.
"REORGANIZATION" means with respect to any Multiemployer Plan,
the condition that such plan is in reorganization within the meaning of
Section 4241 of ERISA.
"REPORTABLE EVENT" means any of the events set forth in
Section 4043(c) of ERISA, other than those events as to which the
thirty day notice period is waived.
"REQUIRED LENDERS" means, at any time, Lenders owed or holding
at least a majority in interest of the aggregate principal amount of
the Advances outstanding at such time, or, if no such principal amount
is outstanding at such time, Lenders holding at least a majority in
interest of the aggregate of the Commitments.
"REQUIREMENT OF LAW" means as to any Person, the Certificate
of Incorporation and By-Laws or other organizational or governing
documents of such Person, and any law, treaty, rule or regulation or
determination of an arbitrator or a court or other
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Governmental Authority, in each case applicable to or binding upon such
Person or any of its property or to which such Person or any of its
property is subject.
"RESPONSIBLE OFFICER" means the chief executive officer,
president, treasurer, chief financial officer or chief accounting
officer of the Borrower, but in any event, with respect to financial
matters, the chief financial officer of the Borrower.
"RESTRICTED PAYMENTS" has the meaning specified in Section
5.02(e).
"REVOLVER" has the meaning specified in the Preliminary
Statements.
"ROLLOVER FEE" has the meaning specified in Section 2.07(b).
"ROLLOVER NOTE" means a promissory note of the Borrower
payable to the order of any Lender, in substantially the form of
Exhibit A-2 hereto, evidencing the aggregate indebtedness of the
Borrower to such Lender resulting from the Exchange Advances owing to
such Lender, as amended.
"S&P" means Standard & Poor's, a division of The ▇▇▇▇▇▇-▇▇▇▇
Companies, Inc.
"SEC" means the Securities and Exchange Commission, any
successor thereto and any analogous Governmental Authority.
"SECURITIES ACT" means the Securities Act of 1933, as amended,
and the rules and regulations promulgated thereunder.
"SELLER" has the meaning specified in the Preliminary
Statements.
"SENIOR INDEBTEDNESS" means any Indebtedness of any Subsidiary
of the Borrower that is not contractually subordinated to the
Indebtedness under this Agreement. For the avoidance of doubt, any
Indebtedness represented by an Intercompany Subordinated Note will not
constitute Senior Indebtedness hereunder.
"SENIOR LENDERS" has the meaning specified in the Preliminary
Statements.
"SENIOR LEVERAGE RATIO" means as of any day, the ratio of (a)
Consolidated Net Senior Debt on such day to (b) Annualized Consolidated
EBITDA for the most recent complete fiscal quarter of the Borrower.
"SHELF REGISTRATION STATEMENT REQUEST" has the meaning
specified in Section 2.03(c)(ii)(B).
"SHELL SUBSIDIARY" means any Subsidiary of the Borrower that
is a "shell" company having (a) assets (either directly or through any
Subsidiary or other Capital Stock) with an aggregate value not
exceeding $10,000 and (b) no operations.
"SIDE LETTER" means the letter dated December 4, 2000 between
the Borrower and Chase Securities Inc., as amended.
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"SINGLE EMPLOYER PLAN" means any Plan that is covered by Title
IV of ERISA, but that is not a Multiemployer Plan.
"SOLVENT" means, when used with respect to any Person, that,
as of any date of determination, (a) the amount of the "present fair
saleable value" of the assets of such Person will, as of such date,
exceed the amount of all "liabilities of such Person, contingent or
otherwise" after giving effect to the expected value of rights of
indemnity, contribution and subrogation, as of such date, as such
quoted terms are determined in accordance with applicable federal and
state laws governing determinations of the insolvency of debtors, (b)
the present fair saleable value of the assets of such Person will, as
of such date, be greater than the amount that will be required to pay
the liability of such Person on its debts as such debts become absolute
and matured after giving effect to the expected value of rights of
indemnity, contribution and subrogation, (c) such Person will not have,
as of such date, an unreasonably small amount of capital with which to
conduct its business, and (d) such Person will be able to pay its debts
as they mature after giving effect to the expected value of rights of
indemnity, contribution and subrogation. For purposes of this
definition, (i) "debt" means liability on a "claim", and (ii) "claim"
means any (x) right to payment, whether or not such a right is reduced
to judgment, liquidated, unliquidated, fixed, contingent, matured,
unmatured, disputed, undisputed, legal, equitable, secured or unsecured
or (y) right to an equitable remedy for breach of performance if such
breach gives rise to a right to payment, whether or not such right to
an equitable remedy is reduced to judgment, fixed, contingent, matured
or unmatured, disputed, undisputed, secured or unsecured.
"SPECIFIED CHANGE OF CONTROL" means a "Change of Control" as
defined in the Existing High Yield Indenture.
"SUBORDINATED INDEBTEDNESS" means any Indebtedness of the
Borrower that is subordinated to the Obligations of the Borrower under
the Bridge Documents on, and that otherwise contains, terms and
conditions reasonably satisfactory to, the Required Lenders.
"SUBSIDIARY" means as to any Person, a corporation,
partnership, limited liability company or other entity of which shares
of stock or other ownership interests having ordinary voting power
(other than stock or such other ownership interests having such power
only by reason of the happening of a contingency) to elect a majority
of the board of directors or other managers of such corporation,
partnership or other entity are at the time owned, or the management of
which is otherwise controlled, directly or indirectly through one or
more intermediaries, or both, by such Person. Unless otherwise
qualified, all references to a "Subsidiary" or to "SUBSIDIARIES" in
this Agreement shall refer to a Subsidiary or Subsidiaries of the
Borrower.
"TERMINATION DATE" means the earlier of December 15, 2011 and
the date of termination in whole of the Commitments pursuant to Section
2.04 or 6.01.
"THI" has the meaning specified in the Preliminary Statements.
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"THREE-MONTH SECONDARY CD RATE" means, for any day, the
secondary market rate for three-month certificates of deposit reported
as being in effect on such day (or, if such day shall not be a Business
Day, the next preceding Business Day) by the Board through the public
information telephone line of the Federal Reserve Bank of New York
(which rate will, under the current practices of the Board, be
published in Federal Reserve Statistical Release H.15(519) during the
week following such day), or, if such rate shall not be so reported on
such day or such next preceding Business Day, the average of the
secondary market quotations for three month certificates of deposit of
major money center banks in New York City received at approximately
10:00 A.M., New York City time, on such day (or, if such day shall not
be a Business Day, on the next preceding Business Day) by the
Administrative Agent from three New York City negotiable certificate of
deposit dealers of recognized standing selected by it.
"TIME WARNER ARRANGEMENTS" means the collective reference to
the capacity license of optical fibers and other property from Time
Warner Cable, the facilities lease and services arrangements and the
trade name license agreement between the Borrower and Time Warner Inc.
and its affiliates.
"TRANSACTION" has the meaning specified in the Preliminary
Statements.
"TREASURY RATE" means, with respect to any prepayment to be
made pursuant to Section 2.05(b)(vii) at any time, the rate per annum
equal to the yield to maturity at such time of United States Treasury
securities with a constant maturity most nearly equal to the period
from the date of such prepayment to the fifth anniversary of the
Exchange Date; provided, however, that if the period from such date of
prepayment to the fifth anniversary of the Exchange Date is not equal
to the constant maturity of the United States Treasury security for
which a weekly average yield is given, the Treasury Rate shall be
obtained by linear interpolation (calculated to the nearest one-twelfth
of a year) from the weekly average yields of United States Treasury
securities for which such yields are given, except that if the period
from such date of prepayment to the fifth anniversary of the Exchange
Date is less than one year, the weekly average yield on actually traded
United States Treasury securities adjusted to a constant maturity of
one year shall be used.
"TYPE" refers to the distinction between Advances bearing
interest at the ABR and Advances bearing interest at the Eurodollar
Rate.
"VOTING STOCK" means, with respect to any Person, Capital
Stock of any class or kind ordinarily having the power to vote for the
election of directors, managers or other voting members of the
governing body of such Person.
"WHOLLY OWNED SUBSIDIARY" means as to any Person, any other
Person all of the Capital Stock of which (other than directors'
qualifying shares required by law) is owned by such Person directly
and/or through other Wholly Owned Subsidiaries.
"WHOLLY OWNED SUBSIDIARY GUARANTOR" has the meaning specified
in the Bank Credit Facility as in effect on the date hereof.
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SECTION 1.02. Computation of Time Periods; Other Definitional
Provisions. As used herein and in the other Bridge Documents, and any
certificate or other document made or delivered pursuant hereto or thereto, (i)
the words "INCLUDE", "INCLUDES" and "INCLUDING" shall be deemed to be followed
by the phrase "WITHOUT LIMITATION", (ii) the word "INCUR" shall be construed to
mean incur, create, issue, assume, become liable in respect of or suffer to
exist (and the words "INCURRED" and "INCURRENCE" shall have correlative
meanings), and (iii) the words "ASSET" and "PROPERTY" shall be construed to have
the same meaning and effect and to refer to any and all tangible and intangible
assets and properties, including cash, Capital Stock, securities, revenues,
accounts, leasehold interests and contract rights, (iv) in the computation of
periods of time from a specified date to a later specified date, the word "FROM"
means "FROM AND INCLUDING" and the words "TO" and "UNTIL" each mean "TO BUT
EXCLUDING". References in the Bridge Documents to any agreement or contract "AS
AMENDED" shall mean and be a reference to such agreement or contract as amended,
amended and restated, supplemented or otherwise modified from time to time in
accordance with its terms.
SECTION 1.03. Accounting Terms. All accounting terms not
specifically defined herein shall be construed in accordance with GAAP.
ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES
SECTION 2.01. The Advances. Each Lender severally agrees, on
the terms and conditions hereinafter set forth, to make a single advance (an
"ADVANCE") to the Borrower on any Business Day during the Availability Period in
an amount not to exceed such Lender's Commitment at such time. The Borrowing
made pursuant to this Section 2.01 shall consist of Advances made simultaneously
by the Lenders ratably according to their Commitments. Amounts borrowed under
this Section 2.01 and repaid or prepaid may not be reborrowed.
SECTION 2.02. Making the Advances. (a) The Borrowing shall be
made on notice, given not later than 2:00 P.M. (New York City time) on the third
Business Day prior to the date of the proposed Borrowing in the case of a
Borrowing consisting of Eurodollar Rate Advances, or the first Business Day
prior to the date of the proposed Borrowing in the case of a Borrowing
consisting of ABR Advances, by the Borrower to the Administrative Agent, which
shall give to each Lender prompt notice thereof by telex or telecopier. Such
notice of the Borrowing (the "NOTICE OF BORROWING") shall be by telephone,
confirmed immediately in writing, or telex or telecopier, in substantially the
form of Exhibit B hereto, specifying therein the requested (i) date of such
Borrowing, (ii) Type of Advances comprising such Borrowing, (iii) aggregate
amount of such Borrowing and (iv) in the case of a Borrowing consisting of
Eurodollar Rate Advances, initial Interest Period for each such Advance. Each
Lender shall, before 11:00 A.M. (New York City time) on the date of such
Borrowing, make available for the account of its Applicable Lending Office to
the Administrative Agent at the Administrative Agent's Account, in same day
funds, such Lender's ratable portion of such Borrowing in accordance with the
respective Commitments of such Lender and the other Lenders. After the
Administrative Agent's receipt of such funds, the Administrative Agent will make
such funds available to the Borrower by crediting the Borrower's Account.
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(b) Anything in subsection (a) above to the contrary
notwithstanding, (i) the Borrower may not select Eurodollar Rate Advances if the
obligation of the Lenders to make Eurodollar Rate Advances shall then be
suspended pursuant to Section 2.08 or 2.09 and (ii) the Advances may not be
outstanding as part of more than 1 separate Borrowing.
(c) The Notice of Borrowing shall be irrevocable and binding
on the Borrower. In the case of any Borrowing that the related Notice of
Borrowing specifies is to be comprised of Eurodollar Rate Advances, the Borrower
shall indemnify each Lender against any loss, cost or expense incurred by such
Lender as a result of any failure to fulfill on or before the date specified in
such Notice of Borrowing for such Borrowing the applicable conditions set forth
in Article III so as to cause such Advance not to be made on such date,
including, without limitation, any loss, cost or expense incurred by reason of
the liquidation or reemployment of deposits or other funds acquired by such
Lender to fund the Advance to be made by such Lender as part of such Borrowing
when such Advance, as a result of such failure, is not made on such date. Such
indemnification may include an amount equal to the excess, if any, of (i) the
amount of interest that would have accrued on the amount not so borrowed for the
period from the date of such failure to borrow to the last day of the Interest
Period that would have commenced on the date of such failure at the applicable
rate of interest for such Advances provided for herein (excluding, however, the
Applicable Margin included therein, if any) over (ii) the amount of interest (as
reasonably determined by such Lender) that would have accrued to such Lender on
such amount by placing such amount on deposit for a comparable period with
leading banks in the interbank eurodollar market.
(d) Unless the Administrative Agent shall have received notice
from a Lender prior to the date of the Borrowing that such Lender will not make
available to the Administrative Agent such Lender's ratable portion of such
Borrowing, the Administrative Agent may assume that such Lender has made such
portion available to the Administrative Agent on the date of such Borrowing in
accordance with subsection (a) of this Section 2.02 and the Administrative Agent
may, in reliance upon such assumption, make available to the Borrower on such
date a corresponding amount. If and to the extent that such Lender shall not
have so made such ratable portion available to the Administrative Agent, such
Lender and the Borrower severally agree to repay or pay to the Administrative
Agent forthwith on demand (provided that the Administrative Agent shall not make
any such demand on the Borrower unless such Lender has failed to pay its ratable
portion to the Administrative Agent within 3 Business Days following the date of
such Borrowing) such corresponding amount and to pay interest thereon, for each
day from the date such amount is made available to the Borrower until the date
such amount is repaid or paid to the Administrative Agent, at (i) in the case of
the Borrower, the interest rate applicable at such time under Section 2.06 to
Advances comprising such Borrowing and (ii) in the case of such Lender, the
Federal Funds Effective Rate. If such Lender shall pay to the Administrative
Agent such corresponding amount, such amount so paid shall constitute such
Lender's Advance as part of such Borrowing for all purposes. Notwithstanding
anything to the contrary herein, the Borrower may replace in its sole discretion
any Lender who defaults in its obligations to make Advances hereunder in
accordance with Section 2.15.
(e) The failure of any Lender to make the Advance to be made
by it as part of any Borrowing shall not relieve any other Lender of its
obligation, if any, hereunder to make its Advance on the date of such Borrowing,
but no Lender shall be responsible for the failure of any
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other Lender to make the Advance to be made by such other Lender on the date of
any Borrowing.
SECTION 2.03. Repayment of Advances. (a) The Borrower shall
repay to the Administrative Agent for the ratable account of the Lenders the
aggregate outstanding principal amount of the Advances on the Maturity Date or,
if the Exchange shall have been consummated in accordance with subsections (b)
and (c) below, the Termination Date, together with all other amounts then owing
to the Lenders (whether for accrued and unpaid interest, fees or other amounts)
under the Bridge Documents.
(b) If, on the Exchange Date, the Bridge Advances shall not
have been paid in full, together with all interest thereon and all other amounts
owing under the Bridge Documents, then, subject to the terms contained herein
and the satisfaction of the conditions set forth below, each Bridge Advance then
outstanding hereunder (evidenced by a Bridge Note, if any) shall be deemed to be
exchanged (all such exchanges being, collectively, the "EXCHANGE") for an
Exchange Advance to be outstanding hereunder and, if requested by the Lender to
which such Bridge Advance is owed prior to the Exchange Date, evidenced by a
Rollover Note, in principal amount equal to the principal amount thereof
outstanding on the Exchange Date. Any accrued and unpaid interest on the Bridge
Advances immediately prior to giving effect to the Exchange shall be due and
payable on the Exchange Date and may, at the option of the Borrower, so long as
no Event of Default shall have occurred and be continuing, not be paid in cash
but may instead be capitalized and shall be deemed to be an Advance constituting
additional principal hereunder and under the Notes, which additional principal
shall be allocated to the Lenders on a pro rata basis and shall bear interest as
set forth herein.
(i) The consummation of the Exchange shall be subject to the
following conditions precedent:
(A) No Default shall have occurred and be continuing
(it being understood that the failure to repay Advances on the
Maturity Date shall not constitute a Default hereunder);
(B) The Exchange would not violate the terms of any
injunction, decree, order or judgment entered by a court of
competent jurisdiction;
(C) The Borrower shall have paid in full in cash all
accrued fees, interest (subject to Section 2.03(b)), and other
amounts owing to the Administrative Agent and the Lenders
(including, without limitation, the Rollover Fee referred to
in Section 2.07(b) and the reasonable accrued fees and
expenses of counsel) under the Bridge Documents; and
(D) The Administrative Agent shall have received each
of the documents required to be delivered pursuant to clause
(ii) below.
(ii) On the Exchange Date, the Borrower shall deliver to the
Administrative Agent the following documents, each dated the Exchange
Date and duly executed or authenticated, as the case may be, by each
Person party thereto:
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(A) The Rollover Notes for the account of each Lender
requesting a Rollover Note prior to the Exchange Date;
(B) The Exchange Indenture;
(C) The Exchange Registration Rights Agreement;
(D) Favorable opinions of New York counsel, general
counsel and such other special counsel to the Borrower as may
be reasonably required by the Administrative Agent, in form
and substance satisfactory to the Administrative Agent, as to
such matters as any Lender through the Administrative Agent
may reasonably request; and
(E) Copies of resolutions, documents, instruments and
opinions reasonably necessary or desirable in the opinion of
the Administrative Agent to consummate the Exchange.
(iii) Upon the consummation of the Exchange on the Exchange
Date, Article V shall be amended in full to read as set forth in
Exhibit G hereto, the definitions in Section 1.01, to the extent
otherwise defined in Exhibit G hereto, shall be amended in full to read
as set forth in Exhibit G and Section 1.01 shall be amended to include
the other definitions set forth in Exhibit G hereto in appropriate
alphabetical order, in each case with such amendments thereto as may be
approved by the Required Lenders and the Borrower. Amendments required
to give effect herein to the incorporation of the terms and provisions
of Exhibit G shall become effective automatically upon the consummation
of the Exchange, without a separate writing and without the signature
of the Borrower or the Lenders
(c) (i) From and after the Exchange Date, within 5 Business
Days after the request of any Lender, the Borrower will execute and deliver, and
cause the trustee under the Exchange Indenture to authenticate, an Exchange
Security to the Administrative Agent for delivery to each Lender requesting one.
Each such Exchange Security will be in the principal amount of, and will
replace, that portion of the Exchange Advances then owing to such Lender
hereunder and under the Rollover Note, if any, held by such Lender as specified
by such Lender in such request, but in any event shall be in an amount equal to
$10,000,000 or an integral multiple of $1,000,000 in excess thereof (or, if
less, the aggregate amount of the Exchange Advances then owing to such Lender),
and shall bear interest at a rate per annum equal to the Fixed Rate; provided
that in each case, in no event shall the applicable interest rate payable under
the Exchange Securities exceed 17% per annum (or, during the continuance of a
Default under Section 6.01(a), 19% per annum); and provided further that any
interest payable under the Exchange Securities in excess of 15% per annum may,
at the option of the Borrower, so long as no event of default shall have
occurred and be continuing under the Exchange Indenture, not be paid in cash but
may instead be capitalized and shall be deemed to be additional principal
thereunder. Upon execution and delivery of the Exchange Securities requested by
a Lender pursuant to this Section 2.03(c), such Lender shall surrender the
Rollover Note, if any, held by it to the Administrative Agent for delivery to
the Borrower in exchange for such Exchange Securities issued pursuant to the
Exchange Indenture and, if the aggregate principal amount of
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such Exchange Securities is less than the amount of the Rollover Note
surrendered by such Lender, the Borrower shall execute and deliver to the
Administrative Agent for delivery to such Lender a new Rollover Note to the
order of such Lender. Such new Rollover Note shall be in a principal amount
equal to the amount by which the amount of the Rollover Note surrendered exceeds
the aggregate principal amount of such Exchange Securities, dated the date of
such Exchange Securities and otherwise in substantially the form of Exhibit A-2
hereto.
(ii)(A) The Exchange Registration Rights Agreement shall
provide for the following registration rights and otherwise be in form and
substance reasonably satisfactory to the Required Lenders. To the extent
available under the Securities Act, the Borrower will file, as soon as
practicable after the Exchange Date, and will use its reasonable best efforts to
have declared effective, as soon practicable thereafter, at the Borrower's
expense, an exchange offer registration statement with respect to the exchange
of the Exchange Securities for identical securities that are registered under
the Securities Act (except that such registered securities shall not bear
legends restricting the transfer thereof) pursuant to the Exchange Registration
Rights Agreement.
(B) If the exchange offer referred to in clause (A) above is
not completed within the time period set forth in clause (D) below or holders of
Exchange Securities and Lenders owed Exchange Advances representing at least a
majority in interest of the principal amount outstanding in respect of the
Exchange Securities and the Exchange Advances so request (a "SHELF REGISTRATION
STATEMENT REQUEST"), the Borrower will file, as soon as practicable after such
determination or request, and will use its reasonable best efforts to cause to
become effective, as soon as practicable thereafter, a shelf registration
statement with respect to sales from time to time (subject to customary blackout
periods to be agreed) of the Exchange Securities by the holders thereof pursuant
to the Exchange Registration Rights Agreement. The Borrower will also use its
reasonable best efforts to keep such shelf registration statement effective
until the earlier of (i) the date as of which all Exchange Securities that may
be issued under Section 2.03(c)(i) have been resold pursuant to such Shelf
Registration Statement or (ii) the date as of which all such Exchange Securities
that may have been issued under Section 2.03(c)(i) may be sold without
restriction and without registration under the Securities Act.
(C) The holders of the Exchange Securities will have "piggy
back" registration rights in connection with the registration of any debt
securities (subject to customary exceptions) under the Securities Act by the
Borrower unless all Exchange Securities that have been issued or may be issued
hereunder have been redeemed by the Borrower or will be redeemed using the
proceeds of such debt securities to be registered.
(D) If the exchange offer registration statement referred to
in clause (A) above is (x) not filed within 75 days from the Exchange Date or
(y) the exchange offer thereunder has not been completed or the shelf
registration statement referred to in clause (B) above is not declared effective
within 150 days from the Exchange Date or the date of a Shelf Registration
Statement Request, then the Borrower shall pay liquidated damages of $0.192 per
week per $1,000 principal amount of Exchange Securities outstanding to each
holder of such Exchange Securities until such time as such exchange offer
registration statement has been filed, such exchange offer has been completed,
or such shelf registration statement has been declared effective, as the case
may be.
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(E) The Borrower hereby agrees to use reasonable best efforts
to cooperate with the holders of Exchange Securities in connection with the
offer and sale of such Exchange Securities to other Persons, including, without
limitation, taking similar actions enumerated in Section 5.01(f)(i) through (x).
SECTION 2.04. Termination or Reduction of the Commitments. (a)
Optional. The Borrower may, upon at least ten days' notice to the Administrative
Agent, terminate in whole or reduce in part the unused portions of the
Commitments; provided, however, that each partial reduction of the Bridge
Facility (i) shall be in an aggregate amount of $1,000,000 or an integral
multiple of $100,000 in excess thereof and (ii) shall be made ratably among the
Lenders in accordance with their Commitments.
(b) Mandatory. (i) On the date of receipt by the Borrower, any
Subsidiary of the Borrower or any direct or indirect owner of a majority of the
Borrower's Voting Stock (other than Time Warner, Inc.) of the Net Cash Proceeds
from the sale or issuance of any Permanent Securities (other than a sale by such
owner of common stock of the Borrower) on or prior to the date of the Initial
Extension of Credit, the aggregate Commitments of the Lenders shall be
automatically and permanently reduced, on a pro rata basis, by an amount equal
to the amount of such Net Cash Proceeds.
(ii) On the date of the Initial Extension of Credit, after
giving effect to the Borrowing on such day, and from time to time thereafter
upon each repayment or prepayment of the Advances, the aggregate Commitments of
the Lenders shall be automatically and permanently reduced, on a pro rata basis,
by an amount equal to the amount by which the aggregate Commitments immediately
prior to such reduction exceed the aggregate unpaid principal amount of the
Advances then outstanding.
SECTION 2.05. Prepayments. (a) Optional. The Borrower may at
any time, subject to clause (z) of the proviso to this sentence, upon at least
ten days' notice to the Administrative Agent stating the proposed date and
aggregate principal amount of the prepayment, and if such notice is given the
Borrower shall, prepay the outstanding aggregate principal amount of the
Advances comprising part of the same Borrowing in whole or ratably in part,
together with accrued fees and interest to the date of such prepayment on the
aggregate principal amount prepaid; provided, however, that (x) each partial
prepayment shall be in an aggregate principal amount of $1,000,000 or an
integral multiple of $100,000 in excess thereof, (y) if any prepayment of a
Eurodollar Rate Advance is made on a date other than the last day of an Interest
Period for such Advance, the Borrower shall also pay any amounts owing pursuant
to Section 8.04(c) and (z) any prepayment of a Non-Call Advance may only be made
on or after the 5th anniversary of the Exchange Date. Any such prepayment of a
Non-Call Advance shall be made together with a premium thereon in an amount
equal to the product of (I) the principal amount of such Non-Call Advance at
such time and (II) the Prepayment Premium Percentage in effect at such time.
Subject to clause (z) of the proviso to the first sentence of this Section
2.05(a), each prepayment shall be applied ratably first to prepay the Callable
Advances then outstanding, comprising part of the same Borrowing, until such
Advances are paid in full and second to prepay Non-Call Advances, if any, then
outstanding. The Borrower may not prepay any Non-Call Advance prior to the
payment or prepayment of the Callable Advances in full.
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(b) Mandatory. (i) The Borrower shall, on the date of receipt
of the Net Cash Proceeds (x) by any direct or indirect owner of a majority of
the Borrower's Voting Stock (other than Time Warner, Inc.) from the incurrence,
sale or issuance of any Permanent Securities (other than common stock of the
Borrower) or (y) by the Borrower or any of its Subsidiaries from (A) the
incurrence or issuance by the Borrower or any of its Subsidiaries of any
Indebtedness (including without limitation, any Permanent Securities but
excluding (1) prior to the consummation of the Exchange, (I) Permitted Bank
Indebtedness and (II) other Indebtedness not otherwise provided in clause (I)
above incurred pursuant to Section 5.02(a) (other than pursuant to Section
5.02(a)(vii) or clause (B) of Section 5.02(a)(xiv) and (2) after consummation of
the Exchange, Permitted Other Indebtedness) and (B) the sale or issuance by the
Borrower or any of its Subsidiaries of any Capital Stock to any Person other
than the Borrower or a Subsidiary of the Borrower (including, without
limitation, receipt of any capital contribution by the Borrower or any of its
Subsidiaries from any direct or indirect owner of a majority of the Borrower's
or such Subsidiary's Voting Stock and issuance of any Permanent Securities but
excluding any such sale or issuance to employees, officers and directors of the
Borrower or any of its Subsidiaries pursuant to an employee stock option plan or
employee stock purchase plan or in connection with bona fide compensation
arrangements) subject to subsection (iii) below, prepay an aggregate principal
amount of the Callable Advances comprising part of the same Borrowings in an
amount equal to the amount of such Net Cash Proceeds. Subject to subsection
(iii) below, each such prepayment shall be applied ratably to the Bridge
Facility.
(ii) (A) At any time prior to the consummation of the
Exchange, the Borrower shall, within 3 Business Days after the date of receipt
of the Net Cash Proceeds by the Borrower or any of its Subsidiaries from any
Asset Sale or Asset Exchange not referred to in subsection (i) above, unless a
Reinvestment Notice shall have been delivered in respect thereof in accordance
with the terms of the Bank Credit Facility, and subject to subsection (iii)
below, prepay an aggregate principal amount of the Advances comprising part of
the same Borrowings in an amount equal to the amount of such Net Cash Proceeds
remaining, if any, after such Net Cash Proceeds have been applied to repay any
amounts outstanding under the Bank Credit Facility that are required by the
terms thereof to be prepaid from such Net Cash Proceeds (unless such prepayment
is expressed waived by the requisite Senior Lenders thereunder in accordance
with the terms thereof); provided, however, that notwithstanding the foregoing,
(I) the aggregate Net Cash Proceeds of Asset Sales and Asset Exchanges that may
be excluded from the foregoing requirement pursuant to a Reinvestment Notice
shall not exceed $30,000,000 at any time, other than with respect to Asset Sales
permitted under Section 5.02(d)(ix) at any time (in each case, after giving
effect to any actual reinvestment of such Net Cash Proceeds in accordance with a
Reinvestment Notice) and (II) on each Reinvestment Prepayment Date, an amount
equal to the Reinvestment Prepayment Amount with respect to the relevant
Reinvestment Event shall be applied toward the prepayment of the Advances as set
forth in Section 2.05(b)(iii). Subject to subsection (iii) below, each such
prepayment shall be applied ratably to the Bridge Facility.
(B) At any time after the consummation of the Exchange, the
Borrower shall, subject to subsections (iii) and (iv) below, prepay an aggregate
principal amount of the Advances comprising part of the same Borrowings in
accordance with Section 5.02(e).
(iii) Prepayments of the Bridge Facility made pursuant to
clause (b)(i) above shall be applied ratably to prepay Callable Advances then
outstanding, comprising part of the
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same Borrowing, until such Advances are paid in full. Prepayments of the Bridge
Facility made pursuant to clause (b)(ii) above shall be applied ratably first to
prepay Callable Advances then outstanding, comprising part of the same
Borrowing, until such Advances are paid in full and second to prepay Non-Call
Advances then outstanding and owing to the Lenders, at the option of each such
Lender as set forth in subsection (iv) below.
(iv) Upon the occurrence of any Receipt Date, each Lender to
which a Non-Call Advance is then owing shall have the right to require the
Borrower to prepay all or any portion of the Non-Call Advances owing to such
Lender pursuant to an offer made in the manner described below (each, an "OFFER
TO PREPAY"), in an amount equal to 100% of the aggregate principal amount
thereof plus accrued and unpaid fees and interest, if any, thereon and amounts,
if any, owing in respect thereof pursuant to Section 8.04(c), in each case to
the date of such prepayment (the "PREPAYMENT"). At least 5 Business Days prior
to the expected Receipt Date, the Borrower shall notify the Administrative Agent
as to the expected occurrence of such Receipt Date, and the Administrative Agent
shall deliver a notice on behalf of the Borrower to each such Lender stating:
(A) that the Offer to Prepay is being made pursuant
to this Section 2.05(b)(iv);
(B) the parties, and the events or circumstances
giving rise, to the Receipt Date in respect of which such
Offer to Prepay is being made, in reasonable detail;
(C) the prepayment amount for the Non-Call Advances
owing to such Lender and the Prepayment Date therefor;
(D) that any Non-Call Advance (or portion thereof)
owing to a Lender in respect of which such Lender has not
accepted the Offer to Prepay made to it shall continue to
accrue interest in accordance with the terms hereof;
(E) that, unless the Borrower defaults in the payment
of the Prepayment, all Non-Call Advances (or portions thereof)
owing to each Lender that has accepted the Offer to Prepay
made to it shall cease to accrue interest after the Prepayment
Date; and
(F) that any Lender which accepts the Offer to Prepay
made to it only with respect to a portion of the Non-Call
Advances owing to it shall, promptly upon the request of such
Lender, be issued a new Exchange Advance Note equal in
principal amount to the principal amount of the remaining
Non-Call Advances owing to it.
Any Lender that elects to have all or a portion of the Non-Call Advances owing
to it prepaid as part of the Offer to Prepay shall deliver a notice to the
Administrative Agent (with a copy to the Borrower) at least three Business Days
prior to the scheduled Receipt Date. Any Lender that does not deliver to the
Administrative Agent with a copy to the Borrower notice accepting the Offer to
Prepay at least three Business Days prior to the Receipt Date shall be deemed to
have rejected such Offer to Prepay. On the Receipt Date, the Borrower shall (x)
prepay to each of the
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Lenders that has accepted the Offer to Prepay made to it the Prepayment for its
Non-Call Advances (or portions of Non-Call Advances) and (y) deliver to each
Lender requesting a new Note a Rollover Note equal in aggregate principal amount
to the aggregate principal amount of the Non-Call Advances owing, if any, to
such Lender after the Borrower has paid the Lender the Prepayment owing to such
Lender. If fewer than all of the Lenders owed Non-Call Advances accept the Offer
to Prepay, the Administrative Agent shall promptly notify each of the Lenders of
the aggregate principal amount of the Non-Call Advances that will remain
outstanding after giving effect to the Prepayments.
(v) The Borrower shall, on the date of occurrence of any
Change of Control, prepay the aggregate outstanding principal amount of the
Callable Advances in full, together with a premium of 1% on the principal amount
prepaid; provided, however, that the Borrower shall not be required to prepay
such Callable Advances if, at the time of occurrence of such Change of Control,
the Existing High Yield Notes shall be rated Investment Grade.
(vi) Upon the occurrence of a Change of Control, each Lender
to which a Non-Call Advance is then owing shall have the right to require the
Borrower to prepay all or any portion of the Non-Call Advances owing to such
Lender pursuant to an offer made in the manner described below (each, a "CHANGE
OF CONTROL OFFER"), in an amount equal to 101% of the aggregate principal amount
thereof plus accrued and unpaid fees and interest, if any, thereon and amounts,
if any, owing in respect thereof pursuant to Section 8.04(c), in each case to
the date of such prepayment (the "CHANGE OF CONTROL PAYMENT"); provided,
however, that the Borrower shall not be required to commence and consummate a
Change of Control Offer if, at the time specified below for the commencement of
a Change of Control Offer, the Existing High Yield Notes shall be rated
Investment Grade. Not later than ten Business Days following any Change of
Control, the Borrower shall notify the Administrative Agent as to the occurrence
of such Change of Control, and the Administrative Agent shall deliver a notice
on behalf of the Borrower to each such Lender stating:
(A) that the Change of Control Offer is being made
pursuant to this Section 2.05(b)(vi);
(B) the parties, and the events or circumstances
giving rise, to the Change of Control for which such Change of
Control Offer is being made, in reasonable detail;
(C) the prepayment amount for the Non-Call Advances
owing to such Lender and the Change of Control Payment Date
therefor;
(D) that any Non-Call Advance (or portion thereof)
owing to a Lender in respect of which such Lender has not
accepted the Change of Control Offer made to it shall continue
to accrue interest in accordance with the terms hereof;
(E) that, unless the Borrower defaults in the payment
of the Change of Control Payment, all Non-Call Advances (or
portions thereof) owing to each Lender that has accepted the
Change of Control Offer made to it shall cease to accrue
interest after the Change of Control Payment Date; and
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(F) that any Lender which accepts the Change of
Control Offer made to it only with respect to a portion of the
Non-Call Advances owing to it shall, promptly upon the request
of such Lender, be issued a new Rollover Note equal in
principal amount to the principal amount of the remaining
Advances owing to it.
Any Lender that elects to have all or a portion of the Advances owing to it
prepaid as part of the Change of Control Offer shall deliver a notice to the
Administrative Agent (with a copy to the Borrower) at least three Business Days
prior to the scheduled Change of Control Payment Date. Any Lender that does not
deliver to the Administrative Agent with a copy to the Borrower notice accepting
the Change of Control Offer at least three Business Days prior to the Change of
Control Payment Date shall be deemed to have rejected such Change of Control
Offer. On a date that is not earlier than 30 days nor later than 60 days from
the date that the Borrower delivers or causes to be delivered notice of the
Change of Control to the Lenders owed Non-Call Advances (a "CHANGE OF CONTROL
PAYMENT DATE"), the Borrower shall (x) prepay to each of the Lenders that has
accepted the Change of Control Offer made to it the Change of Control Payment
for its Non-Call Advances (or portions of Non-Call Advances) and (y) deliver to
each Lender requesting a new Note a Rollover Note equal in aggregate principal
amount to the aggregate principal amount of the Non-Call Advances owing, if any,
to such Lender after the Borrower has paid the Lender the Change of Control
Payment owing to such Lender. If fewer than all of the Lenders owed Non-Call
Advances accept the Change of Control Offer, the Borrower shall promptly notify
each of the Lenders of the aggregate principal amount of the Non-Call Advances
that will remain outstanding after giving effect to the Change of Control
Payments.
(vii) In addition, at any time prior to the fifth anniversary
of the Exchange Date, upon the occurrence of a Change of Control, the Borrower
may, upon not less than 30 days' and not more than 60 days' notice, prepay, in
whole but not in part, the Non-Call Advances in an amount equal to 100% of the
aggregate principal amount thereof plus the Applicable Premium plus accrued and
unpaid interest, if any, thereon and amounts, if any owing in respect thereof
pursuant to Section 8.04(c), in each case to the date of such prepayment. Notice
of prepayment of the Non-Call Advances pursuant to this subsection (vii) shall
be delivered by the Borrower to the Lenders not later than 10 Business Days
following the occurrence of a Change of Control.
(viii) From and after the issuance of Exchange Securities
pursuant to the Exchange Indenture, notwithstanding anything contained herein to
the contrary, any amounts required to be applied to the prepayment of the
Rollover Notes hereunder and the Exchange Securities pursuant to, and in
accordance with the terms of, the Exchange Indenture shall be applied ratably in
accordance with the principal amounts outstanding under the Rollover Notes and
the Exchange Securities, respectively (subject to the provisions hereunder
relating to Non-Call Advances and provisions under the Exchange Indenture
relating to non-callable Exchange Securities).
(ix) All prepayments under this subsection (b) shall be made
together with accrued fees and interest to the date of such prepayment on the
principal amount prepaid.
SECTION 2.06. Interest. (a) Scheduled Interest. The Borrower
shall pay interest on the unpaid principal amount of each Bridge Advance and
each Exchange Advance
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owing to each Lender from the date of such Advance until such principal amount
shall be paid in full, at the following rates per annum:
(i) Bridge Advances. In the case of Bridge Advances,
(A) ABR Advances. During such periods as such Advance
is an ABR Advance, a rate per annum equal at all times to the
sum of (A) the ABR in effect from time to time plus (B) the
Applicable Margin in effect from time to time, payable in
arrears quarterly on the last day of each March, June,
September and December during such periods and on the date
such ABR Advance shall be Converted or paid in full; and
(B) Eurodollar Rate Advances. During such periods as
such Advance is a Eurodollar Rate Advance, a rate per annum
equal at all times during each Interest Period for such
Advance to the sum of (A) the Eurodollar Rate for such
Interest Period for such Advance plus (B) the Applicable
Margin in effect from time to time, payable in arrears on the
last day of such Interest Period and, if such Interest Period
has a duration of more than three months, on each day that
occurs during such Interest Period every three months from the
first day of such Interest Period and on the date such
Eurodollar Rate Advance shall be Converted or paid in full;
and
(ii) Exchange Advances. In the case of Exchange Advances, a
rate per annum equal at all times to the Fixed Rate, payable in arrears
quarterly on the last day of each March, June, September and December
during such period and on the date such Advance shall be exchanged for
an Exchange Security or paid in full;
provided that in each case, in no event shall the applicable interest rate
payable under this Section 2.06(a) exceed 17% per annum (or, during the
continuance of a Default under Section 6.01(a), 19% per annum); and provided
further that any interest payable under this Section 2.06(a) in excess of 15%
per annum may, at the option of the Borrower, so long as no Default shall have
occurred and be continuing, not be paid in cash but may instead be capitalized
and shall be deemed to be an Advance constituting additional principal hereunder
and under the Notes, which additional principal shall be allocated to the
Lenders on a pro rata basis and shall bear interest as set forth herein.
(b) Default Interest. (i) Upon the occurrence and during the
continuance of a Default under Section 6.01(a) with respect to principal, the
Borrower shall pay interest on the overdue unpaid principal amount of each
Advance owing to each Lender, payable in arrears on the dates referred to in
clause (a)(i)(A), (a)(i)(B) or (a)(ii) above and on demand, at a rate per annum
equal at all times to 2% per annum above the rate per annum required to be paid
on such Advance pursuant to clause (a)(i)(A), (a)(i)(B) or (a)(ii) above and
(ii) upon the occurrence and during the continuance of a Default under Section
6.01(a) with respect to the amount of any interest, fee or other amount payable
under the Bridge Documents (other than principal) that is not paid when due,
from the date such amount shall be due until such overdue amount shall be paid
in full, payable in arrears on the date such amount shall be paid in full and on
demand, at a rate per annum equal at all times to 2% per annum above the rate
per annum required to be paid,
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in the case of interest, on the type of Advance on which such interest has
accrued pursuant to clause (a)(i)(A), (a)(i)(B) or (a)(ii) above and, in all
other cases, on ABR Advances pursuant to clause (a)(i)(A) above.
(c) Notice of Interest Period and Interest Rate. Promptly
after receipt of a Notice of Borrowing pursuant to Section 2.02(a), a notice of
Conversion pursuant to Section 2.08 or a notice of selection of an Interest
Period pursuant to the terms of the definition of "Interest Period", the
Administrative Agent shall give notice to the Borrower and each Lender of the
applicable Interest Period and the applicable interest rate determined by the
Administrative Agent for purposes of clause (a)(i) or (a)(ii) above.
SECTION 2.07. Fees. (a) Commitment Letter Fees. The Borrower
shall pay to the Administrative Agent for the account of the Lenders or where
applicable, for the account of the Initial Lenders, as the case may be, all fees
payable pursuant to, and in accordance with the terms of, the Commitment Letter.
The Lenders shall pay or issue a credit, as appropriate, to the Borrower to the
extent required in respect of any commitment fee credit, takedown fee credit or
any other credit to which the Borrower is entitled pursuant to, and in
accordance with the terms of, the Commitment Letter. Without prejudice to the
survival of any other agreement of the Borrower under the Commitment Letter, the
agreements and obligations of the Borrower with respect to payment of fees and
other fee arrangements and of the Lenders with respect to any commitment fee
credit, takedown fee credit or any other credit to which the Borrower is
entitled contained in the Commitment Letter shall survive the termination of the
Commitment Letter in accordance with its terms and remain in full force and
effect concurrently herewith.
(b) Rollover Fee. The Borrower shall pay to the Administrative
Agent for the account of the Lenders a rollover fee (the "ROLLOVER FEE"),
payable on the Exchange Date, in an amount equal to 2.5% of the principal amount
of the Advances then outstanding.
(c) Administrative Agent's Fees. The Borrower shall pay to the
Administrative Agent for its own account such fees as may from time to time be
agreed between the Borrower and the Administrative Agent.
SECTION 2.08. Conversion of Bridge Advances. (a) Optional. The
Borrower may on any Business Day, upon notice given to the Administrative Agent
not later than 11:00 A.M. (New York City time) on the third Business Day prior
to the date of the proposed Conversion and subject to the provisions of Section
2.09, Convert all or any portion of the Bridge Advances of one Type comprising
the same Borrowing into Bridge Advances of the other Type; provided, however,
that any Conversion of Eurodollar Rate Advances into ABR Advances shall be made
only on the last day of an Interest Period for such Eurodollar Rate Advances, no
Conversion of any Advances shall result in more separate Borrowings than
permitted under Section 2.02(b) and each Conversion of Advances comprising part
of the same Borrowing shall be made ratably among the Lenders in accordance with
their Commitments. Each such notice of Conversion shall, within the restrictions
specified above, specify (i) the date of such Conversion, (ii) the Bridge
Advances to be Converted and (iii) if such Conversion is into Eurodollar Rate
Advances, the duration of the initial Interest Period for such Advances. Each
notice of Conversion shall be irrevocable and binding on the Borrower.
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(b) Mandatory. (i) On the date on which the aggregate unpaid
principal amount of Eurodollar Rate Advances comprising any Borrowing shall be
reduced, by payment or prepayment or otherwise, to less than $5,000,000, such
Advances shall automatically Convert into ABR Advances on the last day of the
applicable Interest Period.
(ii) If the Borrower shall fail to select the duration of any
Interest Period for any Eurodollar Rate Advances in accordance with the
provisions contained in the definition of "Interest Period" in Section 1.01, the
Administrative Agent will forthwith so notify the Borrower and the Lenders,
whereupon each such Eurodollar Rate Advance will automatically, on the last day
of the then existing Interest Period therefor, Convert into an ABR Advance.
(iii) Upon the occurrence and during the continuance of any
Event of Default and if the Administrative Agent or the Required Lenders so
decide, (A) each Eurodollar Rate Advance will automatically, on the last day of
the then existing Interest Period therefor, Convert into an ABR Advance and (B)
the obligation of the Lenders to make, or to Convert Advances into, Eurodollar
Rate Advances shall be suspended.
SECTION 2.09. Increased Costs. (a) If the adoption of or any
change in any Requirement of Law or in the interpretation or application thereof
or compliance by any Lender with any request or directive (whether or not having
the force of law) from any central bank or other Governmental Authority made
subsequent to the date hereof:
(i) shall subject any Lender to any tax of any kind
whatsoever with respect to this Agreement or any Eurodollar
Rate Advance or Exchange Advance made by it, or change the
basis of taxation of payments to such Lender in respect
thereof (except for Non-Excluded Taxes covered by Section 2.11
and changes in the rate of tax on the overall net income of
such Lender);
(ii) shall impose, modify or hold applicable any
reserve, special deposit, compulsory loan or similar
requirement against assets held by, deposits or other
liabilities in or for the account of, advances, loans or other
extensions of credit by, or any other acquisition of funds by,
any office of such Lender that is not otherwise included in
the determination of the Eurodollar Rate or the Fixed Rate
hereunder; or
(iii) shall impose on such Lender any other
condition;
and the result of any of the foregoing is to increase the cost to such Lender,
by an amount that such Lender deems to be material, of making, converting into,
continuing or maintaining Eurodollar Loans or to reduce any amount receivable
hereunder in respect thereof, then, in any such case, the Borrower shall
promptly pay such Lender, upon its demand, any additional amounts necessary to
compensate such Lender for such increased cost actually incurred or reduced
amount actually received. If any Lender becomes entitled to claim any additional
amounts pursuant to this paragraph, it shall promptly (and, in any event, within
three months) notify the Borrower (with a copy to the Administrative Agent) of
the event by reason of which it has become so entitled.
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(b) If any Lender shall have determined that the adoption of
or any change in any Requirement of Law regarding capital adequacy or in the
interpretation or application thereof or compliance by such Lender or any
corporation controlling such Lender with any request or directive regarding
capital adequacy (whether or not having the force of law) from any Governmental
Authority made subsequent to the date hereof shall have the effect of reducing
the rate of return on such Lender's or such corporation's capital as a
consequence of its obligations hereunder to a level below that which such Lender
or such corporation could have achieved but for such adoption, change or
compliance (taking into consideration such Lender's or such corporation's
policies with respect to capital adequacy) by an amount deemed by such Lender to
be material, then from time to time, after submission by such Lender to the
Borrower (with a copy to the Administrative Agent) of a written request
therefor, the Borrower shall pay to such Lender such additional amount or
amounts as will compensate such Lender for such reduction; provided that the
Borrower shall not be required to compensate a Lender pursuant to this paragraph
for any amounts incurred more than 90 days prior to the date that such Lender
notifies the Borrower of such Lender's intention to claim compensation therefor;
and provided further that, if the circumstances giving rise to such claim have a
retroactive effect, then such 90-day period shall be extended to include the
period of such retroactive effect.
(c) A certificate, setting forth a reasonably detailed
explanation as to the reason for any additional amounts payable pursuant to this
Section, as to any additional amounts payable pursuant to this Section submitted
by any Lender to the Borrower (with a copy to the Administrative Agent) shall be
conclusive in the absence of manifest error. The obligations of the Borrower
pursuant to this Section shall survive the termination of this Agreement and the
payment of the Advances and all other amounts payable hereunder.
(d) Notwithstanding any other provision of this Agreement, if
the introduction of or any change in or in the interpretation of any law or
regulation shall make it unlawful, or any central bank or other governmental
authority shall assert that it is unlawful, for any Lender or its Eurodollar
Lending Office to perform its obligations hereunder to make Eurodollar Rate
Advances or to continue to fund or maintain Eurodollar Rate Advances hereunder,
then, on notice thereof and demand therefor by such Lender to the Borrower
through the Administrative Agent, (i) each Eurodollar Rate Advance will
automatically, upon such demand, Convert into an ABR Advance and (ii) the
obligation of the Lenders to make, or to Convert Advances into, Eurodollar Rate
Advances shall be suspended until the Administrative Agent shall notify the
Borrower that such Lender has determined that the circumstances causing such
suspension no longer exist.
SECTION 2.10. Payments and Computations. (a) The Borrower
shall make each payment hereunder and under the Notes, irrespective of any right
of counterclaim or set-off not later than 12:00 Noon (New York City time) on the
day when due in U.S. dollars to the Administrative Agent at the Administrative
Agent's Account in same day funds, with payments being received by the
Administrative Agent after such time being deemed to have been received on the
next succeeding Business Day. The Administrative Agent will promptly thereafter
cause like funds to be distributed (i) if such payment by the Borrower is in
respect of principal, interest, commitment fees or any other Obligation then
payable hereunder and under the Notes to more than one Lender, to such Lenders
for the account of their respective Applicable Lending Offices ratably in
accordance with the amounts of such respective Obligations then payable to such
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Lenders and (ii) if such payment by the Borrower is in respect of any Obligation
then payable hereunder to one Lender, to such Lender for the account of its
Applicable Lending Office, in each case to be applied in accordance with the
terms of this Agreement. Upon its acceptance of an Assignment and Acceptance and
recording of the information contained therein in the Register pursuant to
Section 8.07(e), from and after the effective date of such Assignment and
Acceptance, the Administrative Agent shall make all payments hereunder and under
the Notes in respect of the interest assigned thereby to the Lender assignee
thereunder, and the parties to such Assignment and Acceptance shall make all
appropriate adjustments in such payments for periods prior to such effective
date directly between themselves.
(b) The Borrower hereby authorizes each Lender and each of its
Affiliates, if and to the extent payment owed to such Lender is not made when
due (subject to all applicable grace periods) hereunder or, in the case of a
Lender, under the Note held by such Lender, to charge from time to time, to the
fullest extent permitted by law, against any or all of the Borrower's accounts
with such Lender or such Affiliate any amount so due. Each Lender and each such
Affiliate agrees promptly to notify the Borrower after any such set-off and
application; provided, however, that the failure to give such notice shall not
affect the validity of such set-off and application.
(c) All computations of interest based on the ABR shall be
made by the Administrative Agent on the basis of a year of 365 or 366 days, as
the case may be, and all computations of interest based on the Eurodollar Rate,
the Fixed Rate or the Federal Funds Effective Rate and of fees shall be made by
the Administrative Agent on the basis of a year of 360 days, in each case for
the actual number of days (including the first day but excluding the last day)
occurring in the period for which such interest, fees or commissions are
payable. Each determination by the Administrative Agent of an interest rate or
fee hereunder shall be conclusive and binding for all purposes, absent manifest
error.
(d) Whenever any payment hereunder or under the Notes shall be
stated to be due on a day other than a Business Day, such payment shall be made
on the next succeeding Business Day, and such extension of time shall in such
case be included in the computation of payment of interest or commitment fee, as
the case may be; provided, however, that, if such extension would cause payment
of interest on or principal of Eurodollar Rate Advances to be made in the next
following calendar month, such payment shall be made on the next preceding
Business Day.
(e) Unless the Administrative Agent shall have received notice
from the Borrower prior to the date on which any payment is due to any Lender
hereunder that the Borrower will not make such payment in full, the
Administrative Agent may assume that the Borrower has made such payment in full
to the Administrative Agent on such date and the Administrative Agent may, in
reliance upon such assumption, cause to be distributed to each such Lender on
such due date an amount equal to the amount then due such Lender. If and to the
extent the Borrower shall not have so made such payment in full to the
Administrative Agent, each such Lender shall repay to the Administrative Agent
forthwith on demand such amount distributed to such Lender together with
interest thereon, for each day from the date such amount is distributed to such
Lender until the date such Lender repays such amount to the Administrative
Agent, at the Federal Funds Effective Rate.
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SECTION 2.11. Taxes. (a) All payments made by the Borrower
under this Agreement shall be made free and clear of, and without deduction or
withholding for or on account of, any present or future income, stamp or other
taxes, levies, imposts, duties, charges, fees, deductions or withholdings, now
or hereafter imposed, levied, collected, withheld or assessed by any
Governmental Authority, excluding net income taxes and franchise taxes (imposed
in lieu of net income taxes) imposed on the Administrative Agent or any Lender
as a result of a present or former connection between the Administrative Agent
or such Lender and the jurisdiction of the Governmental Authority imposing such
tax or any political subdivision or taxing authority thereof or therein (other
than any such connection arising solely from the Administrative Agent or such
Lender having executed, delivered or performed its obligations or received a
payment under, or enforced, this Agreement or any other Bridge Document). If any
such non-excluded taxes, levies, imposts, duties, charges, fees, deductions or
withholdings ("NON-EXCLUDED TAXES") or Other Taxes are required to be withheld
from any amounts payable to the Administrative Agent or any Lender hereunder,
the amounts so payable to the Administrative Agent or such Lender shall be
increased to the extent necessary to yield to the Administrative Agent or such
Lender (after payment of all taxes) interest or any such other amounts payable
hereunder at the rates or in the amounts specified in this Agreement, provided,
however, that the Borrower shall not be required to increase any such amounts
payable to any Lender with respect to any Non-Excluded Taxes (i) that are
attributable to such Lender's failure to comply with the requirements of
paragraph (d) or (e) of this Section or (ii) that are United States withholding
taxes imposed on amounts payable to such Lender at the time the Lender becomes a
party to this Agreement, except to the extent that such Lender's assignor (if
any) was entitled, at the time of assignment, to receive additional amounts from
the Borrower with respect to such Non-Excluded Taxes pursuant to this paragraph.
(b) In addition, the Borrower shall pay any Other Taxes to the
relevant Governmental Authority in accordance with applicable law.
(c) Whenever any Non-Excluded Taxes or Other Taxes are payable
by the Borrower, as promptly as possible thereafter the Borrower shall send to
the Administrative Agent for its own account or for the account of the relevant
Lender, as the case may be, a certified copy of an original official receipt
received by the Borrower showing payment thereof. If the Borrower fails to pay
any Non-Excluded Taxes or Other Taxes when due to the appropriate taxing
authority or fails to remit to the Administrative Agent the required receipts or
other required documentary evidence, the Borrower shall indemnify the
Administrative Agent and the Lenders for any incremental taxes, interest or
penalties that may become payable by the Administrative Agent or any Lender as a
result of any such failure.
(d) Each Lender (or Eligible Assignee that becomes a Lender
hereunder) that is not a "U.S. Person" as defined in Section 7701(a)(30) of the
Code (a "NON U.S. LENDER") shall deliver to the Borrower and the Administrative
Agent (or, in the case of a participant under Section 8.07(f), to the Lender
from which the related participation shall have been purchased) two copies of
either U.S. Internal Revenue Service Form W-8BEN or Form W-8ECI, or, in the case
of a Non U.S. Lender claiming exemption from U.S. federal withholding tax under
Section 871(h) or 881(c) of the Code with respect to payments of "portfolio
interest", a statement substantially in the form of Exhibit E hereto and a Form
W-8BEN, or any subsequent versions thereof or successors thereto, properly
completed and duly executed by such Non U.S. Lender
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claiming complete exemption from, or a reduced rate of, U.S. federal withholding
tax on all payments by the Borrower under this Agreement and the other Loan
Documents. Such forms shall be delivered by each Non U.S. Lender on or before
the date it becomes a party to this Agreement. In addition, each Non U.S. Lender
shall deliver such forms promptly upon the obsolescence or invalidity of any
form previously delivered by such Non U.S. Lender. Each Non U.S. Lender shall
promptly notify the Borrower at any time it determines that it is no longer in a
position to provide any previously delivered certificate to the Borrower (or any
other form of certification adopted by the U.S. taxing authorities for such
purpose). Notwithstanding any other provision of this paragraph, a Non U.S.
Lender shall not be required to deliver any form pursuant to this paragraph that
such Non U.S. Lender is not legally able to deliver.
(e) A Lender that is entitled to an exemption from or
reduction of non-U.S. withholding tax under the law of the jurisdiction in which
the Borrower is located, or any treaty to which such jurisdiction is a party,
with respect to payments under this Agreement shall deliver to the Borrower
(with a copy to the Administrative Agent), at the time or times prescribed by
applicable law or reasonably requested by the Borrower, such properly completed
and executed documentation prescribed by applicable law as will permit such
payments to be made without withholding or at a reduced rate, provided that such
Lender is legally entitled to complete, execute and deliver such documentation
and in such Lender's judgment such completion, execution or submission would not
materially prejudice the legal position of such Lender.
(f) If any payee receives a refund of any Non-Excluded Taxes
or Other Taxes paid by the Borrower under this Section 2.11, which refund in the
sole judgment of such payee is allocable to such payment, such payee shall
promptly pay over to the Borrower the amount of such refund, net of all
out-of-pocket expenses of such payee; provided, however, that the Borrower, upon
the request of such payee, agrees to repay the amount paid over to the Borrower
to such payee in the event such Lender or the Administrative Agent is required
to repay such refund.
(g) The agreements in this Section shall survive the
termination of this Agreement and the payment of the Advances and all other
amounts payable hereunder.
SECTION 2.12. Sharing of Payments, Etc. If any Lender shall
obtain at any time any payment (whether voluntary, involuntary, through the
exercise of any right of set-off, or otherwise, other than as a result of an
assignment pursuant to Section 8.07) (a) on account of Obligations due and
payable to such Lender hereunder and under the Notes at such time in excess of
its ratable share (according to the proportion of (i) the amount of such
Obligations due and payable to such Lender at such time to (ii) the aggregate
amount of the Obligations due and payable to all Lenders hereunder and under the
Notes at such time) of payments on account of the Obligations due and payable to
all Lenders hereunder and under the Notes at such time obtained by all the
Lenders at such time or (b) on account of Obligations owing (but not due and
payable) to such Lender hereunder and under the Notes at such time in excess of
its ratable share (according to the proportion of (i) the amount of such
Obligations owing to such Lender at such time to (ii) the aggregate amount of
the Obligations owing (but not due and payable) to all Lenders hereunder and
under the Notes at such time) of payments on account of the Obligations owing
(but not due and payable) to all Lenders hereunder and under the Notes at such
time obtained by all of the Lenders at such time, such Lender shall forthwith
purchase from the other
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Lenders such interests or participating interests in the Obligations due and
payable or owing to them, as the case may be, as shall be necessary to cause
such purchasing Lender to share the excess payment ratably with each of them;
provided, however, that if all or any portion of such excess payment is
thereafter recovered from such purchasing Lender, such purchase from each other
Lender shall be rescinded and such other Lender shall repay to the purchasing
Lender the purchase price to the extent of such Lender's ratable share
(according to the proportion of (x) the purchase price paid to such Lender to
(y) the aggregate purchase price paid to all Lenders) of such recovery together
with an amount equal to such Lender's ratable share (according to the proportion
of (I) the amount of such other Lender's required repayment to (II) the total
amount so recovered from the purchasing Lender) of any interest or other amount
paid or payable by the purchasing Lender in respect of the total amount so
recovered. The Borrower agrees that any Lender so purchasing an interest or
participating interest from another Lender pursuant to this Section 2.12 may, to
the fullest extent permitted by law, exercise all its rights of payment
(including the right of set-off) with respect to such interest or participating
interest, as the case may be, as fully as if such Lender were the direct
creditor of the Borrower in the amount of such interest or participating
interest, as the case may be.
SECTION 2.13. Use of Proceeds. The proceeds of the Advances
shall be available (and the Borrower agrees that it shall use such proceeds)
solely to finance a portion of the purchase price of the Acquisition, to pay
transaction fees and expenses in connection with the Transaction and to finance
a portion of the Business Plan.
SECTION 2.14. Evidence of Debt. (a) Each Lender shall maintain
in accordance with its usual practice an account or accounts evidencing the
indebtedness of the Borrower to such Lender resulting from each Advance owing to
such Lender from time to time, including the amounts of principal and interest
payable and paid to such Lender from time to time hereunder. The Borrower agrees
that upon reasonable prior written notice by any Lender to the Borrower (with a
copy of such notice to the Administrative Agent) to the effect that a promissory
note or other evidence of indebtedness is required or appropriate in order for
such Lender to evidence (whether for purposes of pledge, enforcement or
otherwise) the Advances owing to, or to be made by, such Lender, the Borrower
shall promptly execute and deliver to such Lender, with a copy to the
Administrative Agent, a Bridge Note or a Rollover Note, as applicable, payable
to the order of such Lender in a principal amount equal to the Commitment of
such Lender (with an attached Schedule showing the aggregate principal amount
outstanding in respect of such Commitment at such time). All references to Notes
in the Loan Documents shall mean Notes, if any, to the extent issued hereunder.
(b) The Register maintained by the Administrative Agent
pursuant to Section 8.07(d) shall include a control account, and a subsidiary
account for each Lender, in which accounts (taken together) shall be recorded
(i) the date and amount of each Borrowing made hereunder, the Type of Advances
comprising such Borrowing and, if appropriate, the Interest Period applicable
thereto, (ii) the terms of each Assignment and Acceptance delivered to and
accepted by it, (iii) the amount of any principal or interest due and payable or
to become due and payable from the Borrower to each Lender hereunder, and (iv)
the amount of any sum received by the Administrative Agent from the Borrower
hereunder and each Lender's share thereof.
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(c) Entries made in good faith by the Administrative Agent in
the Register pursuant to subsection (b) above, and by each Lender in its account
or accounts pursuant to subsection (a) above, shall be prima facie evidence of
the amount of principal and interest due and payable or to become due and
payable from the Borrower to, in the case of the Register, each Lender and, in
the case of such account or accounts, such Lender, under this Agreement, absent
manifest error; provided, however, that the failure of the Administrative Agent
or such Lender to make an entry, or any finding that an entry is incorrect, in
the Register or such account or accounts shall not limit or otherwise affect the
obligations of the Borrower under this Agreement except to the extent of such
error.
SECTION 2.15. Replacement of Lenders. The Borrower shall be
permitted to replace any Lender that (a) requests reimbursement for amounts
owing pursuant to Section 2.09 or 2.11(a) or (b) defaults in its obligation to
make Advances hereunder, with a replacement financial institution; provided that
(i) such replacement does not conflict with any Requirement of Law, (ii) no
Event of Default shall have occurred and be continuing at the time of such
replacement, (iii) prior to any such replacement, such Lender shall not have
eliminated, after requested to do so by the Borrower, the continued need for
payment of amounts owing pursuant to Section 2.09 or 2.11(a), (iv) the
replacement financial institution shall purchase, at par, all Advances and other
amounts owing to such replaced Lender on or prior to the date of replacement,
(v) the Borrower shall be liable to such replaced Lender under Section 8.04(c)
if any Eurodollar Rate Advance owing to such replaced Lender shall be purchased
other than on the last day of the Interest Period relating thereto, (vi) the
replacement financial institution, if not already a Lender, shall be reasonably
satisfactory to the Administrative Agent, (vii) the replaced Lender shall be
obligated to make such replacement in accordance with the provisions of Section
8.07 (provided that the Borrower shall be obligated to pay the registration and
processing fee referred to therein), (viii) until such time as such replacement
shall be consummated, the Borrower shall pay all additional amounts (if any)
required pursuant to Section 2.09 or 2.11(a), as the case may be, and (ix) any
such replacement shall not be deemed to be a waiver of any rights that the
Borrower, the Administrative Agent or any other Lender shall have against the
replaced Lender.
ARTICLE III
CONDITIONS OF LENDING
SECTION 3.01. Conditions Precedent to Initial Extension of
Credit. The obligation of each Lender to make a Bridge Advance on the occasion
of the Initial Extension of Credit hereunder is subject to the satisfaction,
prior to or concurrently with the making of the Initial Extension of Credit, of
the following conditions precedent:
(a) The Administrative Agent shall have received on or before
the day of the Initial Extension of Credit the following, each dated
such day (unless otherwise specified), in form and substance reasonably
satisfactory to the Administrative Agent (unless otherwise specified)
and (except for the Bridge Notes) in sufficient copies for each Lender:
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(i) The Bridge Notes payable to the order of the
Lenders that have requested Bridge Notes prior to the
Effective Date.
(ii) A certificate of the Borrower, dated the
Effective Date, substantially in the form of Exhibit F hereto,
with appropriate insertions and attachments.
(iii) Certified copies of each of the Related
Documents, duly executed by the parties thereto.
(iv) The Commitment Letter, duly executed by the
Borrower and the other parties thereto.
(v) Certified copies of (A) the Pro Forma Balance
Sheet and (B) the financial statements referred to in Section
4.01(a)(ii).
(vi) A Notice of Borrowing relating to the Initial
Extension of Credit.
(vii) A favorable opinion of Cravath, Swaine & ▇▇▇▇▇,
New York counsel for the Borrower, in form and substance
reasonably satisfactory to the Administrative Agent.
(viii) A favorable opinion of ▇▇▇▇ ▇. ▇▇▇▇▇, Esq.,
general counsel to the Borrower, in form and substance
reasonably satisfactory to the Administrative Agent.
(b) There shall not have occurred and be continuing or become
known to the Lenders, any Material Adverse Change since June 30, 2000
(it being understood that as of September 11, 2000, none of MSSF,
▇▇▇▇▇▇ Commercial Paper Inc. or the Chase Manhattan Bank, and as of
December 4, 2000, neither Bear ▇▇▇▇▇▇▇ Corporate Lending Inc. nor ABN
AMRO Bank N.V., was aware of any such Material Adverse Change).
(c) All material governmental and third party consents and
approvals (other than in connection with the consummation of the
Acquisition) necessary or, in the reasonable discretion of the Lenders,
advisable in connection with the Transaction, the Initial Extension of
Credit and the continuing operations of the Borrower and its
Subsidiaries shall have been obtained; all applicable waiting periods
in connection with the Transaction shall have expired without any
action being taken or threatened by any competent authority, that
restrains, prevents or otherwise imposes adverse conditions upon the
Transaction or the Initial Extension of Credit.
(d) The Borrower shall have paid all accrued fees of the
Administrative Agent and the Lenders and all accrued and invoiced
expenses of the Administrative Agent (including the accrued fees and
expenses of counsel to the Administrative Agent).
(e) The Acquisition shall have been consummated for an
aggregate purchase price of approximately $690 million in accordance
with the terms of the Acquisition Agreement and without any amendment,
modification or waiver of any of the material
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terms or conditions thereof (including, without limitation, the
material conditions precedent) without the prior written consent of the
Lenders.
(f) The Acquisition Agreement shall be in full force and
effect in accordance with its terms.
(g) The Bank Credit Documents shall be in form and substance
reasonably satisfactory to the Lenders and shall be in full force and
effect; the conditions precedent to the effectiveness of the Bank
Credit Facility shall have been satisfied in accordance with the terms
and conditions of the Bank Credit Facility without any waiver,
modification or amendment not consented to by the Lenders of any term,
provision or condition set forth therein (including, without
limitation, the material conditions precedent); and the Borrower shall
have received Net Cash Proceeds of at least $250,000,000 from
borrowings thereunder.
(h) The Lenders shall be satisfied that from and after
December 4, 2000 and through the Initial Extension of Credit there
shall have been no competing offering, placement or arrangement of any
debt or equity securities or bank financing by or on behalf of the
Borrower or its Subsidiaries or with respect to the Acquired Assets
(except for any bank financing by the Borrower or its subsidiaries
(including the Bank Credit Facility) that has been previously disclosed
to the Initial Lenders and that will, in conjunction with the financing
contemplated hereby, provide financing for the Acquisition and except
for any Permanent Financing for which ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co.
Incorporated, ▇▇▇▇▇▇ Brothers Inc., Bear ▇▇▇▇▇▇▇ & Co. Inc. and ABN
AMRO Incorporated have acted (or have been offered a bona fide
opportunity to act) as co-lead financial advisors, agents and/or
underwriters as provided in the Commitment Letter).
(i) The Administrative Agent shall have received such other
documents or materials as the Administrative Agent shall reasonably
request.
SECTION 3.02. Determinations Under Section 3.01. For purposes
of determining compliance with the conditions specified in Section 3.01, each
Lender shall be deemed to have consented to, approved or accepted or to be
satisfied with each document or other matter required thereunder to be consented
to or approved by or acceptable or satisfactory to the Lenders unless an officer
of the Administrative Agent responsible for the transactions contemplated by the
Bridge Documents shall have received notice from such Lender prior to the
Initial Extension of Credit specifying its objection thereto and such Lender
shall not have made available to the Administrative Agent such Lender's ratable
portion of such Borrowing.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. Representations and Warranties of the Borrower.
The Borrower represents and warrants as follows:
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(a) Financial Condition. (i) The unaudited pro forma
consolidated balance sheet of the Borrower and its consolidated
Subsidiaries as at June 30, 2000 (including the notes thereto) (the
"PRO FORMA BALANCE SHEET"), copies of which have heretofore been
furnished to each Lender, has been prepared giving effect (as if such
events had occurred on such date) to (i) the consummation of the
Acquisition, (ii) the Advances to be made hereunder and borrowings of
$225 million under the Bank Credit Facility in connection with the
Acquisition and/or the Business Plan of the Borrower as described in
the Confidential Information Memorandum (as defined in the Bank Credit
Facility) and the use of proceeds thereof and (iii) the payment of fees
and expenses in connection with the foregoing. The Pro Forma Balance
Sheet has been prepared based on information and assumptions believed
by the Borrower to be reasonable as of the date of delivery thereof,
and presents fairly, based on such information and assumptions, on a
pro forma basis the estimated financial position of the Borrower and
its consolidated Subsidiaries as at June 30, 2000, assuming that the
events specified in the preceding sentence had actually occurred at
such date.
(ii) The audited consolidated balance sheets of the Borrower
as at December 31, 1998 and December 31, 1999, and the related
consolidated statements of income and of cash flows for the fiscal
years of the Borrower ended on such dates, reported on by and
accompanied by an unqualified report from Ernst & Young LLP, present
fairly the consolidated financial condition of the Borrower as at such
date, and the consolidated results of its operations and its
consolidated cash flows for the respective fiscal years of the Borrower
then ended. The unaudited consolidated balance sheet of the Borrower as
at June 30, 2000, and the related unaudited consolidated statements of
income and cash flows for the six-month period ended on such date,
present fairly the consolidated financial condition of the Borrower as
at such date, and the consolidated results of its operations and its
consolidated cash flows for the six-month period then ended (subject to
normal year end adjustments). All such financial statements, including
the related schedules and notes thereto, have been prepared in
accordance with GAAP applied consistently throughout the periods
involved (except as approved by the aforementioned firm of accountants
and disclosed therein). The Borrower and its Subsidiaries do not have
any material Guarantee Obligations, contingent liabilities and
liabilities for taxes, or any long term leases or unusual forward or
long term commitments, including any interest rate or foreign currency
swap or exchange transaction or other obligation in respect of
derivatives, that are not reflected in the most recent financial
statements referred to in this paragraph. During the period from June
30, 2000 to and including the date hereof there has been no Disposition
by the Borrower or any of its Subsidiaries of any material part of its
business or property.
(b) No Change. Since June 30, 2000, there has been no
development or event that has had or could reasonably be expected to
have a Material Adverse Effect.
(c) Existence; Compliance with Law. Each of the Borrower and
its Subsidiaries (i) is duly organized, validly existing and in good
standing under the laws of the jurisdiction of its organization, (ii)
has the power and authority under its constitutive documents, and the
legal right, to own and operate its property, to lease the property it
operates as lessee and to conduct the business in which it is currently
engaged, (iii) is
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duly qualified as a foreign corporation, partnership or limited
liability company, as the case may be, and in good standing under the
laws of each jurisdiction where its ownership, lease or operation of
property or the conduct of its business requires such qualification and
(iv) is in compliance with all Requirements of Law except to the extent
that the failure to comply therewith could not, in the aggregate,
reasonably be expected to have a Material Adverse Effect.
(d) Power; Authorization; Enforceable Obligations. The
Borrower has the power and authority under its constitutive documents,
and the legal right, to make, deliver and perform the Bridge Documents
and to obtain extensions of credit hereunder. The Borrower has taken
all necessary organizational action under its constitutive documents to
authorize the execution, delivery and performance of the Bridge
Documents executed and delivered on or prior to the Initial Extension
of Credit and to authorize the extensions of credit on the terms and
conditions of this Agreement. No consent or authorization of, filing
with, notice to or other act by or in respect of, any Governmental
Authority or any other Person is required in connection with the
extensions of credit hereunder or with the execution, delivery,
performance, validity or enforceability of this Agreement or any of the
Bridge Documents, the Bank Credit Facility or the Acquisition, except
consents, authorizations, filings and notices described in Schedule
4.01(d) hereto, which consents, authorizations, filings and notices
have been obtained or made and are in full force and effect unless
otherwise indicated on Schedule 4.01(d) hereto. Each Bridge Document
has been duly executed and delivered on behalf of the Borrower. This
Agreement constitutes, and each other Bridge Document upon execution
will constitute, a legal, valid and binding obligation of the Borrower,
enforceable against the Borrower in accordance with its terms, except
as enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the enforcement of
creditors' rights generally and by general equitable principles
(whether enforcement is sought by proceedings in equity or at law).
(e) No Legal Bar. The execution, delivery and performance of
this Agreement and the other Bridge Documents, the borrowings hereunder
and the use of the proceeds thereof will not violate any Requirement of
Law or any Contractual Obligation of the Borrower or any of its
Subsidiaries and will not result in, or require, the creation or
imposition of any Lien on any of their respective properties or
revenues pursuant to any Requirement of Law or any such Contractual
Obligation (other than the Liens permitted under Section 5.02(b)). No
Requirement of Law or Contractual Obligation applicable to the Borrower
or any of its Subsidiaries could reasonably be expected to have a
Material Adverse Effect.
(f) Litigation. No litigation, investigation or proceeding of
or before any arbitrator or Governmental Authority is pending or, to
the knowledge of the Borrower, threatened by or against the Borrower or
any of its Subsidiaries or against any of their respective properties
or revenues (i) with respect to any of the Bridge Documents or any of
the transactions contemplated hereby or thereby, or (ii) that could
reasonably be expected to have a Material Adverse Effect.
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(g) No Default. Neither the Borrower nor any of its
Subsidiaries is in default under or with respect to any of its
Contractual Obligations in any respect that could reasonably be
expected to have a Material Adverse Effect. No Default has occurred and
is continuing.
(h) Ownership of Property; Liens. Each of the Borrower and its
Subsidiaries has title in fee simple to, or a valid leasehold interest
in, all its real property, and good title to, or a valid leasehold
interest in, all its other property, and none of such property is
subject to any Lien except as permitted by Section 5.02(b).
(i) Intellectual Property. The Borrower and each of its
Subsidiaries owns, or is licensed to use, all Intellectual Property
necessary for the conduct of its business as currently conducted. No
material claim has been asserted and is pending by any Person
challenging or questioning the use of any Intellectual Property or the
validity or effectiveness of any Intellectual Property, nor does the
Borrower or any of its Subsidiaries know of any valid basis for any
such claim. The use of Intellectual Property by the Borrower and its
Subsidiaries does not infringe on the rights of any Person in any
material respect.
(j) Taxes. Each of the Borrower and its Subsidiaries has filed
or caused to be filed all Federal, state and other material tax returns
that are required to be filed and has paid all taxes shown to be due
and payable on said returns or on any assessments made against it or
any of its property and all other taxes, fees or other charges imposed
on it or any of its property by any Governmental Authority (other than
any the amount or validity of which are currently being contested in
good faith by appropriate proceedings and with respect to which
reserves in conformity with GAAP have been provided on the books of the
Borrower or its Subsidiaries, as the case may be); no tax Lien has been
filed, and, to the knowledge of the Borrower, no claim is being
asserted, with respect to any such tax, fee or other charge (except, in
each case, for taxes in respect of the Seller or its affiliates in an
aggregate amount not to exceed the amount held back from the purchase
price paid by the Borrower to the Seller and its affiliates in
connection with the Acquisition).
(k) Federal Regulations. No part of the proceeds of any Loans,
and no other extensions of credit hereunder, will be used for "buying"
or "carrying" any "margin stock" within the respective meanings of each
of the quoted terms under Regulation U as now and from time to time
hereafter in effect or for any purpose that violates the provisions of
the Regulations of the Board. If requested by any Lender or the
Administrative Agent, the Borrower will furnish to the Administrative
Agent and each Lender a statement to the foregoing effect in conformity
with the requirements of FR Form G-3 or FR Form U-1, as applicable,
referred to in Regulation U.
(l) Labor Matters. Except as, in the aggregate, could not
reasonably be expected to have a Material Adverse Effect: (i) there are
no strikes or other labor disputes against the Borrower or any of its
Subsidiaries pending or, to the knowledge of the Borrower, threatened;
(ii) hours worked by and payment made to employees of the Borrower and
its Subsidiaries have not been in violation of the Fair Labor Standards
Act or any other applicable Requirement of Law dealing with such
matters; and (iii) all
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payments due from the Borrower or any of its Subsidiaries on account of
employee health and welfare insurance have been paid or accrued as a
liability on the books of the Borrower or the relevant Subsidiary.
(m) ERISA. Neither a Reportable Event with respect to a Plan
which, if terminated, would result in material liability nor an
"accumulated funding deficiency" (within the meaning of Section 412 of
the Code or Section 302 of ERISA) has occurred during the five year
period prior to the date on which this representation is made or deemed
made with respect to any Plan, and each Plan has complied in all
material respects with the applicable provisions of ERISA and the Code.
No termination of a Single Employer Plan, other than a standard
termination pursuant to Section 4041(b) of ERISA, has occurred, and no
Lien in favor of the PBGC or a Plan has arisen, during such five-year
period, in either case with respect to which the Borrower has any
outstanding liability. The present value of all accrued benefits under
each Single Employer Plan (based on those assumptions used to fund such
Plans) did not, as of the last annual valuation date prior to the date
on which this representation is made or deemed made, exceed the value
of the assets of such Plan allocable to such accrued benefits by a
material amount. Neither the Borrower nor any Commonly Controlled
Entity has had a complete or partial withdrawal from any Multiemployer
Plan that has resulted or could reasonably be expected to result in a
material liability under ERISA which has not been satisfied as of the
date hereof, and neither the Borrower nor any Commonly Controlled
Entity would to the knowledge of the Borrower become subject to any
material liability under ERISA if the Borrower or any such Commonly
Controlled Entity were to withdraw completely from all Multiemployer
Plans as of the valuation date most closely preceding the date on which
this representation is made or deemed made. No such Multiemployer Plan
is in Reorganization or Insolvent.
(n) Investment Company Act; Other Regulations. Neither the
Borrower nor its Subsidiaries is an "investment company", or a company
"controlled" by an "investment company", within the meaning of the
Investment Company Act of 1940, as amended. Neither the Borrower nor
its Subsidiaries is subject to regulation under any Requirement of Law
(other than Regulation X of the Board) that limits its ability to incur
Indebtedness.
(o) Subsidiaries. Except as disclosed to the Administrative
Agent by the Borrower in writing from time to time after the Effective
Date, (i) Schedule 4.01(o) hereto sets forth the name and jurisdiction
of incorporation of each Subsidiary and, as to each such Subsidiary,
the percentage of each class of Capital Stock owned by the Borrower or
any of its Subsidiaries and (ii) there are no outstanding
subscriptions, options, warrants, calls, rights or other agreements or
commitments (other than stock options granted to employees or directors
and directors' qualifying shares) of any nature relating to any Capital
Stock of the Borrower or any Subsidiary of the Borrower, except as
created by the Bank Credit Documents.
(p) Use of Proceeds. The proceeds of the Advances shall be
used to finance the Acquisition, to pay related fees and expenses and
to finance a portion of the Business Plan.
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(q) Environmental Matters. Except as, individually or in the
aggregate, could not reasonably be expected to have a Material Adverse
Effect:
(i) the facilities and properties owned, leased or
operated by the Borrower or any of its Subsidiaries (the
"PROPERTIES") do not contain any Materials of Environmental
Concern in amounts or concentrations or under circumstances
that constitute a violation of, or could reasonably be
expected to give rise to liability under, any Environmental
Law;
(ii) neither the Borrower nor any of its Subsidiaries
has received any written notice of any violation, alleged
violation, liability or potential liability regarding
environmental matters or compliance with Environmental Laws
with regard to any of the Properties or the business operated
by the Borrower or any of its Subsidiaries (the "BUSINESS"),
nor does the Borrower have knowledge that any such notice will
be received or is being threatened;
(iii) Materials of Environmental Concern have not
been transported or disposed of from the Properties in
violation of, or in a manner or to a location that could
reasonably be expected to give rise to liability under, any
Environmental Law, nor have any Materials of Environmental
Concern been generated, treated, stored or disposed of at, on
or under any of the Properties in violation of, or in a manner
that could reasonably be expected to give rise to liability
under, any applicable Environmental Law;
(iv) no judicial proceeding or governmental or
administrative action is pending or, to the knowledge of the
Borrower, threatened, under any Environmental Law to which the
Borrower or any Subsidiary is or will be named as a party with
respect to the Properties or the Business, nor are there any
consent decrees or other decrees, consent orders,
administrative orders or other orders outstanding under any
Environmental Law with respect to the Properties or the
Business;
(v) there has been no release or threat of release of
Materials of Environmental Concern at or from the Properties,
or arising from or related to the operations of the Borrower
or any Subsidiary in connection with the Properties or
otherwise in connection with the Business, in violation of or
in amounts or in a manner that could give rise to liability
under Environmental Laws; and
(vi) the Properties and all operations at the
Properties or otherwise in respect to the Business are in
compliance, and have in the last five years been in
compliance, with all applicable Environmental Laws.
(r) Accuracy of Information, etc. No statement or information
contained in this Agreement, any other Bridge Document, the Information
Memorandum, if any, or any other document, certificate or statement
furnished by or on behalf of the Borrower to the Administrative Agent
or the Lenders, or any of them, for use in connection with the
transactions contemplated by this Agreement or the other Bridge
Documents, contained
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as of the date such Information Memorandum, if any, statement,
information, document or certificate was so furnished, any untrue
statement of a material fact or omitted to state a material fact
necessary to make the statements contained herein or therein, when
taken as a whole and in conjunction with the Borrower's public filings
and disclosures, not misleading. The projections contained in the
materials referenced above are based upon good faith estimates and
assumptions believed by management of the Borrower to be reasonable at
the time made, it being recognized by the Lenders that such financial
information as it relates to future events is not to be viewed as fact
and that actual results during the period or periods covered by such
financial information may differ from the projected results set forth
therein by a material amount. To the best knowledge of the Borrower, as
of the Effective Date, the representations and warranties contained in
the Acquisition Agreement are true and correct in all material
respects. There is no fact known to the Borrower or any of its
Subsidiaries that could reasonably be expected to have a Material
Adverse Effect that has not been expressly disclosed herein, in the
other Bridge Documents, in the Information Memorandum, if any, or in
any other documents, certificates and statements furnished to the
Administrative Agent and the Lenders for use in connection with the
transactions contemplated hereby and by the other Bridge Documents.
(s) Solvency. Except for any Shell Subsidiaries, each of the
Borrower and its Subsidiaries is, and after giving effect to the
Acquisition and the incurrence of all Indebtedness and obligations
being incurred in connection herewith and therewith will be and will
continue to be, Solvent.
(t) Certain Documents. The Borrower has delivered to the
Administrative Agent a complete and correct copy of the Acquisition
Agreement, including any amendments, supplements or modifications with
respect to any of the foregoing.
ARTICLE V
COVENANTS OF THE BORROWER
SECTION 5.01. Affirmative Covenants. Until the consummation of
the Exchange in accordance with Section 2.03(b) so long as any Bridge Advance or
any other Obligation of the Borrower under any Bridge Document (other than the
Rollover Notes or any other Exchange Document) shall remain unpaid or any Lender
shall have any Commitment hereunder with respect to any Bridge Advance, the
Borrower will, and will cause each of its Subsidiaries to:
(a) Payment of Obligations. Pay, discharge or otherwise
satisfy at or before maturity or before they become delinquent, as the
case may be, all its material obligations of whatever nature, except
where the amount or validity thereof is currently being contested in
good faith by appropriate proceedings and reserves in conformity with
GAAP with respect thereto have been provided on the books of the
Borrower or its Subsidiaries, as the case may be.
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(b) Maintenance of Existence; Compliance. (i) (A) Preserve,
renew and keep in full force and effect its corporate existence and (B)
take all reasonable action to maintain all rights, privileges and
franchises necessary or desirable in the normal conduct of its
business, except, in each case, as otherwise permitted by Section
5.02(c) and except, in the case of clause (B) above, to the extent that
failure to do so could not reasonably be expected to have a Material
Adverse Effect; and (ii) comply with all Contractual Obligations and
Requirements of Law except to the extent that failure to comply
therewith could not, in the aggregate, reasonably be expected to have a
Material Adverse Effect.
(c) Maintenance of Property; Insurance. (i) Keep all property
useful and necessary in its business in good working order and
condition, ordinary wear and tear excepted and (ii) maintain with
financially sound and reputable insurance companies insurance on all
its property in at least such amounts and against at least such risks
(but including in any event public liability, product liability and
business interruption) as are usually insured against in the same
general area by companies engaged in the same or a similar business.
(d) Inspection of Property; Books and Records; Discussions.
(i) Keep proper books of records and account in which full, true and
correct entries in conformity with GAAP and all Requirements of Law
shall be made of all dealings and transactions in relation to its
business and activities and (ii) permit representatives of any Lender
to visit and inspect any of its properties and examine and make
abstracts from any of its books and records at any reasonable time,
upon reasonable notice and as often as may reasonably be desired and to
discuss the business, operations, properties and financial and other
condition of the Borrower and its Subsidiaries with officers and
employees of the Borrower and its Subsidiaries and with its independent
certified public accountants.
(e) Environmental Laws. (i) Comply in all material respects
with, and use its reasonable efforts to ensure compliance in all
material respects by all tenants and subtenants, if any, with, all
applicable Environmental Laws, and obtain and comply in all material
respects with and maintain, and use its reasonable efforts to ensure
that all tenants and subtenants obtain and comply in all material
respects with and maintain, any and all licenses, approvals,
notifications, registrations or permits required by applicable
Environmental Laws, except to the extent that failure to do so could
not reasonably be expected to have a Material Adverse Effect.
(ii) Conduct and complete all investigations, studies,
sampling and testing, and all remedial, removal and other actions
required under Environmental Laws and promptly comply in all material
respects with all lawful orders and directives of all Governmental
Authorities regarding Environmental Laws, except to the extent that the
same are being contested in good faith by appropriate proceedings and
the pendency of such proceedings could not reasonably be expected to
have a Material Adverse Effect.
(f) Permanent Financings. Cooperate with the Lenders in
connection with, and use its reasonable best efforts to effectuate, the
Permanent Financings, including, without limitation, upon request by
MS&Co.:
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(i) in connection with any private offerings with or
without registration rights (including offers and sales
pursuant to Rule 144A and Regulation S under the Securities
Act), preparing customary offering memorandums relating to the
offer and sale of Permanent Securities, such offering
memorandums containing (A) such disclosures as would have been
included in a registration statement filed under the
Securities Act or as may be required by applicable laws,
rules, regulations or other requirements, (B) such disclosures
as may be appropriate or customary for such offering
memorandums and (C) such disclosures as reasonably requested
by MS&Co.
(ii) in connection with any private offerings with
registration rights (including offers and sales pursuant to
Rule 144A and Regulation S under the Securities Act),
executing and delivering registration rights agreements, in
form and substance reasonably satisfactory to MS&Co.;
(iii) in connection with any public offerings
(including offerings pursuant to a "shelf" registration
statement), preparing prospectuses relating to the offer and
sale of Permanent Securities in connection with the Permanent
Financings, such prospectuses containing (A) such disclosures
as may be required by the Securities Act and other applicable
laws, rules, regulations or other requirements, (B) such
disclosures as may be appropriate or customary for such
documents and (C) such disclosures as reasonably requested by
MS&Co., and filing the related registration statements;
(iv) providing Board Resolutions approving any
issuances and sales of the Permanent Securities in connection
with the Permanent Financings, the related purchase agreements
and/or underwriting agreements and the transactions
contemplated thereby, and all documents evidencing other
necessary corporate action with respect to the issuances and
sales of the Permanent Securities in connection with the
Permanent Financings;
(v) executing and delivering all necessary purchase
agreements and/or underwriting agreements, in form and
substance reasonably satisfactory to MS&Co., containing in all
cases customary covenants, representations and warranties and
indemnities and providing for in all cases the delivery of
customary legal opinions (including 10-b5 opinions in the case
of registered or 144A offerings), officers' and other
certificates and accountants' comfort letters;
(vi) if any "qualified independent underwriter" is
required by the National Association of Securities Dealers,
Inc. in connection with any offer or sale of the Permanent
Securities, paying an underwriting fee (in a customary and
reasonable amount for transactions of this type and amount)
and agreeing to indemnify such underwriter on customary terms,
which underwriter shall be a firm selected by MS&Co. and
reasonably agreed upon by the Borrower;
(vii) assisting MS&Co. and any other placement agents
and/or underwriters in their selling efforts, including,
without limitation, providing such
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persons, all information reasonably deemed necessary by MS&Co.
in connection with the offer and sale of the Permanent
Securities issued and sold in order to consummate the
Permanent Financings, including, but not limited to,
information and projections prepared by the Borrower and its
Subsidiaries or on its behalf relating to offering and sales
of such Permanent Securities, including making available
representatives of the Borrower and its Subsidiaries and, if
appropriate, using its reasonable best efforts to make
available representatives of any other issuer of such
Permanent Securities;
(viii) assisting MS&Co. and any other placement
agents and/or underwriters in connection with the marketing of
any Permanent Securities to be offered publicly or placed
privately which marketing efforts may be accomplished by a
variety of means, including, without limitation, supplementing
and updating any offering materials to be used in the
marketing of the Permanent Securities and the use of road show
presentations (including "one-on-one" meetings) involving
senior management of the Borrower and its Subsidiaries and
using its reasonable best efforts to involve senior management
of any issuers of the Permanent Securities in any such road
show presentations on the one hand and the proposed purchasers
of the Permanent Securities on the other hand, in each case in
order to consummate the Permanent Financings;
(ix) paying all fees and expenses of MS&Co. and any
other placement agents and/or underwriters set forth in the
Commitment Letter and in the Side Letter, as the case may be,
and other customary fees and expenses relating to any
offerings and sales of Permanent Securities; and
(x) providing such other cooperation and assistance
as is customarily provided by issuers in connection with such
private placements and/or public sales of their securities,
and taking such further actions and preparing, executing,
delivering and filing any agreements, instruments, documents
and certificates to effectuate the Permanent Financings.
(g) Syndication. Take all action as the Administrative Agent,
on behalf of the Lenders, may reasonably request to assist
Administrative Agent in forming a syndicate of lenders acceptable to
the Administrative Agent (in consultation with the Borrower) in order
to syndicate, in consultation with the Borrower, the Bridge Notes and,
if applicable, the Rollover Notes to additional lenders, including,
without limitation: (i) making senior management and representatives of
the Borrower available to participate in information meetings with
potential lenders at such times and places as the Administrative Agent
may reasonably request; (ii) using its reasonable best efforts to
ensure that the syndication efforts benefit from the Borrower's lending
relationships; and (iii) providing the Administrative Agent with all
information that the Administrative Agent reasonably deems necessary to
successfully complete the syndication; without limiting the generality
of the foregoing, in order to ensure an orderly and effective
syndication of the Bridge Notes and/or the Rollover Notes, the Borrower
agrees that until the termination of the syndication (as evidenced by
notification (confirmed in writing) received by the Borrower from the
Administrative Agent), the Borrower will not, and will not permit any
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of its Affiliates to, syndicate or issue, attempt to syndicate or
issue, announce or authorize the announcement of the syndication or
issuance of, or engage in discussions concerning the syndication or
issuance of, any debt facility or debt security (including any renewals
thereof) (other than the Bank Credit Facility or any Permanent
Financing or in respect of any Bank Credit Agreement), without the
prior written consent of the Administrative Agent or except to the
extent that in the reasonable judgment of the Administrative Agent any
syndication hereunder would not be adversely affected.
SECTION 5.02. Negative Covenants. Until the consummation of
the Exchange in accordance with Section 2.03(b) so long as any Bridge Advance or
any other Obligation of the Borrower under any Bridge Document (other than the
Rollover Notes or any other Exchange Document) shall remain unpaid or any Lender
shall have any Commitment hereunder with respect to any Bridge Advance, the
Borrower will not, and will not permit any of its Subsidiaries to, at any time:
(a) Indebtedness. Create, issue, incur, assume, become liable
in respect of or suffer to exist any Indebtedness, except:
(i) Indebtedness of the Borrower pursuant to any
Bridge Document;
(ii) Indebtedness of the Borrower to any Subsidiary
and of THI to any Subsidiary of the Borrower and of any
Subsidiary of the Borrower to any Subsidiary of the Borrower;
(iii) Guarantee Obligations incurred in the ordinary
course of business (A) by any of the Borrower's Subsidiaries
of obligations of any Wholly Owned Subsidiary Guarantor and
(B) by the Borrower of obligations of its Subsidiaries with
respect to such Subsidiaries' real estate leases;
(iv) Indebtedness outstanding on the date hereof and
listed on Schedule 5.02(a)(iv) and any refinancings,
refundings, renewals or extensions thereof (without
increasing, or shortening the maturity of, the principal
amount thereof); and provided further that in no event may
Indebtedness of the Borrower be refinanced by means of any
Indebtedness of any of its Subsidiaries pursuant to this
clause (iv);
(v) Indebtedness (including, without limitation,
Capital Lease Obligations other than the Capital Lease
Obligations assumed pursuant to the Acquisition Agreement)
secured by Liens permitted by Section 5.02(b)(vii) in an
aggregate principal amount not to exceed $30,000,000 at any
one time outstanding;
(vi) Hedge Agreements in respect of Indebtedness
otherwise permitted hereby that bears interest at a floating
rate, so long as such agreements are not entered into for
speculative purposes;
(vii) Indebtedness ("REFINANCING INDEBTEDNESS")
issued in exchange for, or the net proceeds of which are used
to refinance or refund, then outstanding
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Indebtedness incurred under clause (i) of this Section 5.02(a)
in an amount not to exceed the amount so refinanced or
refunded (plus premiums, accrued interest, fees and expenses);
provided that such Refinancing Indebtedness shall only be
permitted under this clause (vii) if
(A) in case the Advances are refinanced in
part, such Refinancing Indebtedness, by its terms or
by the terms of any agreement or instrument pursuant
to which such Refinancing Indebtedness is
outstanding, is expressly made pari passu with, or
subordinate in right of payment to, the remaining
Advances; and
(B) such Refinancing Indebtedness,
determined as of the date of incurrence of such
Refinancing Indebtedness, does not mature prior to
the date that is one year after the Termination Date,
and the Average Life of such Refinancing Indebtedness
is at least equal to the remaining Average Life of
the Advances and Exchange Securities to be refinanced
or refunded;
(viii) Indebtedness of any Subsidiary acquired in
connection with any Investment permitted pursuant to Section
5.02(g)(vii), provided that (A) no Default has occurred and is
continuing or would result therefrom, (B) such Indebtedness
existed at the time such Person became a Subsidiary and was
not incurred in anticipation thereof, (C) no Person other than
such Subsidiary becomes an obligor in respect of such
Indebtedness and (D) the aggregate amount of such Indebtedness
in excess of $20,000,000 (whether or not subsequently repaid)
shall constitute usage of the basket provided in Section
5.02(g)(vii);
(ix) Indebtedness consisting of guaranties of loans
made to officers, directors or employees of the Borrower or
any Subsidiary of the Borrower in an aggregate amount which,
when added to the outstanding principal amount of loans and
advances made pursuant to Section 5.02(g)(iv), shall not
exceed $5,000,000 at any one time outstanding;
(x) Indebtedness of THI or any Subsidiary of the
Borrower to the Borrower;
(xi) unsecured trade accounts payable incurred in the
ordinary course of business and not more than 120 days past
due (but excluding any Indebtedness for borrowed money);
(xii) reimbursement obligations incurred in the
ordinary course of business related to performance bonds
posted in connection with the installation of fiber facilities
and similar activities in an aggregate amount not to exceed
$20,000,000 at any one time outstanding;
(xiii) additional Indebtedness of the Borrower or any
of its Subsidiaries in an aggregate principal amount (for the
Borrower and all Subsidiaries) not to exceed $30,000,000 at
any one time outstanding;
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(xiv) (A) Indebtedness of THI outstanding at any time
under the Bank Credit Facility (or any replacement or
refinancing thereof) in an aggregate principal amount such
that the sum of the aggregate principal amount of term loan
borrowings thereunder (whether under the Bank Credit Facility
in effect on the date hereof or under any replacement or
refinancing thereof) made from and after the date hereof and
the aggregate principal amount of Indebtedness outstanding
under the Revolver at any time does not exceed $1,000,000,000,
(B) additional Indebtedness of THI under the Bank Credit
Facility in an aggregate principal amount not to exceed
$250,000,000 outstanding at any time less principal repayments
of term loans thereunder, provided that the Net Cash Proceeds
of such additional Indebtedness is applied in accordance with
Section 2.05(b) and (C) Guarantee Obligations pursuant to this
Section 5.02(a)(xiv) by any of the Borrower's Subsidiaries;
and
(xv) Indebtedness (including, without limitation,
Capital Lease Obligations) assumed pursuant to the Acquisition
Agreement in an aggregate principal amount not to exceed
$30,000,000 at any one time outstanding.
(b) Liens. Create, incur, assume or suffer to exist any Lien
upon any of its property, whether now owned or hereafter acquired,
except for:
(i) Liens for taxes not yet due or that are being
contested in good faith by appropriate proceedings, provided
that adequate reserves with respect thereto are maintained on
the books of the Borrower or its Subsidiaries, as the case may
be, in conformity with GAAP;
(ii) carriers', warehousemen's, mechanics',
materialmen's, repairmen's or other like Liens arising in the
ordinary course of business that are not overdue for a period
of more than 30 days or that are being contested in good faith
by appropriate proceedings;
(iii) pledges or deposits in connection with workers'
compensation, unemployment insurance and other social security
legislation and deposits securing liability to insurance
carriers under insurance or self-insurance arrangements;
(iv) deposits to secure the performance of bids,
trade contracts (other than for borrowed money), leases,
statutory obligations, surety and appeal bonds, performance
bonds and other obligations of a like nature incurred in the
ordinary course of business;
(v) easements, rights-of-way, restrictions and other
similar encumbrances incurred in the ordinary course of
business that, in the aggregate, are not substantial in amount
and that do not in any case materially detract from the value
of the property subject thereto or materially interfere with
the ordinary conduct of the business of the Borrower or any of
its Subsidiaries;
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(vi) Liens in existence on the date hereof listed on
Schedule 5.02(b)(vi), securing Indebtedness permitted by
Section 5.02(a)(iv), provided that no such Lien is spread to
cover any additional property after the Effective Date and
that the amount of Indebtedness secured thereby is not
increased;
(vii) Liens securing Indebtedness of the Borrower or
any other Subsidiary incurred pursuant to Section 5.02(a)(v)
to finance the acquisition of fixed or capital assets,
provided that (A) such Liens shall be created substantially
simultaneously with the acquisition of such fixed or capital
assets, (B) such Liens do not at any time encumber any
property other than the property financed by such Indebtedness
and (C) the amount of Indebtedness secured thereby is not
increased;
(viii) Liens securing Indebtedness of the Borrower
and its Subsidiaries permitted under Section 5.02(a)(xiv)
pursuant to the Bank Credit Facility securing amounts
thereunder in an aggregate principal amount not to exceed
$1,250,000,000;
(ix) any interest or title of a lessor under any
lease entered into by the Borrower or any other Subsidiary in
the ordinary course of its business and covering only the
assets so leased;
(x) Liens on the property or assets of a Person which
becomes a Subsidiary after the date hereof securing
Indebtedness permitted by Section 5.02(a)(viii), provided that
(A) such Liens existed at the time such Person became a
Subsidiary and were not created in anticipation thereof, (B)
any such Lien is not expanded to cover any property or assets
of such Person after the time such Person becomes a Subsidiary
(other than after acquired title in or on such property and
proceeds of the existing collateral in accordance with the
instrument creating such Lien), (C) the amount of Indebtedness
secured thereby is not increased, and (D) neither (x) the
aggregate outstanding principal amount of the obligations
secured thereby nor (y) the aggregate fair market value
(determined as of the date such Lien is incurred) of the
assets subject thereto exceeds (as to all relevant
Subsidiaries) $20,000,000 at any one time;
(xi) Liens not otherwise permitted by this Section so
long as neither (A) the aggregate outstanding principal amount
of the obligations secured thereby nor (B) the aggregate fair
market value (determined as of the date such Lien is incurred)
of the assets subject thereto exceeds (as to the Borrower and
all Subsidiaries) $5,000,000 at any one time; and
(xii) Permitted Encumbrances with respect to the
Acquired Assets.
(c) Fundamental Changes. Enter into any merger, consolidation
or amalgamation, or liquidate, wind up or dissolve itself (or suffer
any liquidation or dissolution), or Dispose of, all or substantially
all of its property or business, except that:
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(i) any Subsidiary of the Borrower may be merged or
consolidated with or into the Borrower (provided that the
Borrower shall be the continuing or surviving corporation) or
with or into any Subsidiary of the Borrower (provided that the
Subsidiary of the Borrower shall be the continuing or
surviving corporation);
(ii) any Subsidiary of the Borrower may Dispose of
any or all of its assets (upon voluntary liquidation or
otherwise) to the Borrower or any Subsidiary of the Borrower;
and
(iii) any Shell Subsidiary may be dissolved.
(d) Disposition of Property. Dispose of any of its property,
whether now owned or hereafter acquired, or issue or sell any shares of
its Capital Stock to any Person, except:
(i) the Disposition of obsolete or worn out property
in the ordinary course of business;
(ii) the sale of inventory in the ordinary course of
business; the Disposition of cash and Cash Equivalents for
fair value; the license of intellectual property in the
ordinary course of business; and leases and subleases with
respect to excess capacity and not materially interfering with
the ordinary conduct of business;
(iii) Dispositions permitted by Section 5.02(c)(ii);
(iv) the sale or issuance of the Borrower's common
stock or preferred stock to any Person, provided that the Net
Cash Proceeds from such sale or issuance shall be applied to
the prepayment of the Advances to the extent required by
Section 2.05(b), provided further that if such preferred stock
constitutes Cash Pay Preferred Stock, it is issued in
compliance with Section 5.02(a);
(v) the sale or issuance of any Subsidiary's Capital
Stock to the Borrower or any Subsidiary of the Borrower;
(vi) any Asset Exchange by the Borrower and its
Subsidiaries, provided that (A) on the date of such Asset
Exchange, no Default shall have occurred and be continuing or
would result therefrom, (B) the assets received in connection
with such Asset Exchange shall be received by a Subsidiary of
the Borrower or, in the case of any Capital Stock so received,
by the Borrower and (C) in the event that any cash
consideration is paid or received by the Borrower or any of
its Subsidiaries in connection with such Asset Exchange, then
(x) the payment of any such cash is permitted by Section
5.02(f) or Section 5.02(g)(vii), as applicable and in
accordance with GAAP, and (y) the Disposition related to the
receipt of any such cash is permitted by Section
5.02(d)(viii);
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(vii) the Disposition of any Investments made
pursuant to Section 5.02(g)(vi), provided that the Net Cash
Proceeds of such Disposition shall be applied to the
prepayment of the Advances to the extent required by Section
2.05(b);
(viii) the Disposition for fair market value of other
property having a fair market value not to exceed $25,000,000
in the aggregate for any fiscal year of the Borrower, provided
that the Net Cash Proceeds of such Disposition shall be
applied to the prepayment of the Advances to the extent
required by Section 2.05(b); and
(ix) the Disposition for fair market value of
Acquired Assets having a fair market value not to exceed
$200,000,000, provided that the Net Cash Proceeds of such
Disposition are received on or prior to the second anniversary
of the Effective Date, and provided further that the Net Cash
Proceeds of such Disposition shall be applied to the
prepayment of the Advances to the extent required by Section
2.05(b).
(e) Restricted Payments. (i) In the case of the Borrower,
declare or pay any dividend (other than dividends payable solely in
common stock or Non-Cash Pay Preferred Stock of the Person making such
dividend or in respect of Cash Pay Preferred Stock to the extent issued
in compliance with Section 5.02(a)) on, or make any payment on account
of, or set apart assets for a sinking or other analogous fund for, the
purchase, redemption, defeasance, retirement or other acquisition of,
any Capital Stock of the Borrower, whether now or hereafter
outstanding, or make any other distribution in respect thereof, either
directly or indirectly, or make any payment on account of any advance
or loan owing by the Borrower to any of its Affiliates (other than any
Subsidiary of the Borrower), whether in cash or property or in
obligations of the Borrower or any Subsidiary, except that so long as
no Event of Default shall have occurred and be continuing or would
result therefrom the Borrower may purchase the Borrower's common stock
or common stock options from present or former officers or employees of
the Borrower or any Subsidiary upon the death, disability or
termination of employment of such officer or employee, provided, that
the aggregate amount of payments under this Section 5.02(e)(i) after
the date hereof (net of any proceeds received by the Borrower after the
date hereof in connection with resales of any common stock or common
stock options so purchased) shall not exceed $5,000,000; and (ii) in
the case of the Borrower's Subsidiaries, declare or pay any dividend
on, or make any payment on account of, or set apart assets for a
sinking or other analogous fund for, the purchase, redemption,
defeasance, retirement or other acquisition of, any Capital Stock of
any Subsidiary of the Borrower, whether now or hereafter outstanding,
or make any other distribution in respect thereof, either directly or
indirectly, or make any payment on account of any advance or loan owing
by such Subsidiary to the Borrower or any of its Subsidiaries or
Affiliates, whether in cash or property or in obligations of the
Borrower or any Subsidiary (collectively, the "RESTRICTED PAYMENTS")
except that any Subsidiary of the Borrower may make Restricted Payments
to the Borrower or any of its Subsidiaries.
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(f) Capital Expenditures. Until the date on which the ratio of
Consolidated Total Debt on such day to Annualized Consolidated EBITDA
for the most recent complete fiscal quarter of the Borrower is less
than 5.00 to 1.0: make or commit to make any Capital Expenditure,
except Capital Expenditures of the Borrower and its Subsidiaries in the
ordinary course of business not exceeding for any fiscal year of the
Borrower set forth below the dollar amount set forth below opposite
such fiscal year:
FISCAL YEAR ENDING AMOUNT
------------------ ------
December 31, 2000 $500,000,000
December 31, 2001 $790,000,000
provided, that (i) up to $150,000,000 of any such amount referred to
above, if not so expended in the fiscal year of the Borrower for which
it is permitted, may be carried over for expenditure in the next
succeeding fiscal year of the Borrower, (ii) up to $25,000,000 of any
such amount referred to above may be carried back for expenditure in
the immediately preceding fiscal year of the Borrower and (iii) Capital
Expenditures made pursuant to this Section 5.02(f) during any fiscal
year of the Borrower shall be deemed made, first, in respect of amounts
carried over from the prior fiscal year of the Borrower pursuant to
subclause (i) above, second, in respect of amounts permitted for such
fiscal year as provided above and, third, in respect of amounts carried
back from the next succeeding fiscal year of the Borrower pursuant to
subclause (ii) above.
(g) Investments. Make any advance, loan, extension of credit
(by way of guaranty or otherwise) or capital contribution to, or
purchase any Capital Stock, bonds, notes, debentures or other debt
securities of, or any assets constituting a business unit of, or make
any other investment in, any Person (all of the foregoing,
"INVESTMENTS"), except:
(i) extensions of trade credit in the ordinary course
of business;
(ii) Investments in Cash Equivalents;
(iii) Guarantee Obligations permitted by Section
5.02(a);
(iv) loans and advances to officers, directors or
employees of the Borrower or any Subsidiary of the Borrower in
the ordinary course of business (including for travel,
entertainment and relocation expenses) in an aggregate amount
for the Borrower or any Subsidiary of the Borrower which, when
added to the outstanding principal amount of Indebtedness
incurred pursuant to Section 5.02(a)(ix), shall not exceed
$5,000,000 at any one time outstanding;
(v) intercompany Investments by the Borrower or any
of its Subsidiaries in the Borrower or any Person that, prior
to such investment, is a Subsidiary of the Borrower;
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(vi) Investments by the Borrower or any of its
Subsidiaries in existing or potential trade suppliers, vendors
and customers from whom THI reasonably expects to obtain a
material commercial benefit in an aggregate amount (valued at
cost) not to exceed $25,000,000 at any one time; and
(vii) in addition to Investments otherwise expressly
permitted by this Section, Investments by the Borrower or any
of its Subsidiaries in an aggregate amount (valued at cost)
not to exceed $75,000,000 at any one time.
(h) Optional Payments and Modifications of Certain Debt
Instruments. (i) Make or offer to make any optional or voluntary
payment, prepayment, repurchase or redemption of or otherwise
optionally or voluntarily defease or segregate funds with respect to
the Existing High Yield Notes or the Bank Credit Facility except
prepayments of advances under the Revolver or (ii) amend, modify, waive
or otherwise change, or consent or agree to any amendment,
modification, waiver or other change to, any of the terms of the
Existing High Yield Notes or the Bank Credit Facility in any manner
materially adverse to the Lenders.
(i) Transactions with Affiliates. Other than as set forth on
Schedule 5.02(i), enter into any transaction, including any purchase,
sale, lease or exchange of property, the rendering of any service or
the payment of any management, advisory or similar fees, with any
Affiliate, unless such transaction is (i) between or among Wholly Owned
Subsidiaries of the Borrower or (ii) (A) otherwise permitted under this
Agreement, (B) in the ordinary course of business of the Borrower or
such Subsidiary, as the case may be, and (C) upon fair and reasonable
terms no less favorable to the Borrower or such Subsidiary, as the case
may be, than it would obtain in a comparable arm's length transaction
with a Person that is not an Affiliate.
(j) Sales and Leasebacks. Enter into any arrangement with any
Person providing for the leasing by the Borrower or any Subsidiary of
real or personal property that has been or is to be sold or transferred
by the Borrower or such Subsidiary to such Person or to any other
Person to whom funds have been or are to be advanced by such Person on
the security of such property or rental obligations of the Borrower or
such Subsidiary, other than any sale and leaseback transaction
involving properties existing on the Effective Date and permitted by
Section 5.02(b)(xi) or properties acquired after the Effective Date and
permitted by Section 5.02(b)(vii).
(k) Changes in Fiscal Periods. Permit the fiscal year of the
Borrower to end on a day other than December 31 or change the
Borrower's method of determining fiscal quarters.
(l) Negative Pledge Clauses. Enter into or suffer to exist or
become effective any agreement that prohibits or limits the ability of
the Borrower or any of its Subsidiaries to create, incur, assume or
suffer to exist any Lien upon any of its property or revenues, whether
now owned or hereafter acquired, other than (i) this Agreement and the
other Bridge Documents, (ii) the Time Warner Arrangements, (iii) any
agreements governing any purchase money Liens or Capital Lease
Obligations otherwise permitted
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hereby (in which case, any prohibition or limitation shall only be
effective against the assets financed thereby), (iv) any agreements
governing any Investment in any joint venture that limit the ability to
grant a security interest in the Capital Stock of such joint venture,
(v) customary restrictions entered into in the ordinary course of
business with respect to Intellectual Property that limit the ability
to grant a security interest in such Intellectual Property, (vi) any
agreements governing any leasehold interest (including any rights of
way, collocation agreements and other similar such interests in real
estate, and agreements assumed pursuant to the Acquisition Agreement
granting an indefeasible right of use in fiber or conduits or providing
for joint construction or marketing of fiber or conduits) or building
entry agreements that limit the ability to grant a security interest in
such leasehold interest or building entry agreements, (vii) agreements
with customers for the provision of services that limit the ability to
grant a security interest in such agreements (but not amounts
receivable or any money or other amounts due or to become due or other
right of payment resulting from those agreements), (viii) the Existing
High Yield Indenture, (ix) the Bank Credit Facility and (x) any
agreement governing Indebtedness permitted to be incurred by Section
5.02(a)(vii).
(m) Clauses Restricting Subsidiary Distributions. Enter into
or suffer to exist or become effective any consensual encumbrance or
restriction on the ability of any Subsidiary of the Borrower to (i)
make Restricted Payments in respect of any Capital Stock of such
Subsidiary held by, or pay any Indebtedness owed to, the Borrower or
any other Subsidiary of the Borrower, (ii) make loans or advances to,
or other Investments in, the Borrower or any other Subsidiary of the
Borrower or (iii) transfer any of its assets to the Borrower or any
other Subsidiary of the Borrower, except for such encumbrances or
restrictions existing under or by reason of (A) any restrictions
existing under the Bridge Documents, (B) any restrictions with respect
to a Subsidiary imposed pursuant to an agreement that has been entered
into in connection with the Disposition of all or substantially all of
the Capital Stock or assets of such Subsidiary and (C) any restrictions
existing under the Bank Credit Facility in effect on the date hereof.
(n) Lines of Business; Holding Company Status. Enter into any
business, either directly or through any Subsidiary, except for the
design, development, construction, installation, integration,
management or provision of any telecommunications business, including
voice, video, internet and data transmission products, services and
systems, fiber network construction and sales and any business
reasonably related to the foregoing (each, a "PERMITTED LINE OF
BUSINESS").
(o) Modifications to Time Warner Arrangements and Material
Rights and Privileges. Amend, supplement, or otherwise modify the terms
and conditions of any of the Time Warner Arrangements or any material
rights and privileges (including, without limitation, FCC and local
regulatory licenses) in any manner materially adverse to the Lenders.
(p) Amendments to Acquisition Agreement. Amend, supplement or
otherwise modify (pursuant to a waiver or otherwise) the terms and
conditions of the indemnities furnished to the Borrower or any of its
Subsidiaries pursuant to the Acquisition Agreement in any manner that
could reasonably be expected to have a Material Adverse Effect.
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SECTION 5.03. Reporting Requirements. Until the consummation
of the Exchange in accordance with Section 2.03(b) so long as any Bridge Advance
or any other Obligation of the Borrower under any Bridge Document (other than
the Rollover Notes or any other Exchange Document) shall remain unpaid or any
Lender shall have any Commitment hereunder with respect to any Bridge Advance,
the Borrower will furnish to the Administrative Agent and the Lenders:
(a) Financial Statements. (i) Annual Financials. As soon as
available, but in any event within 95 days after the end of each fiscal
year of the Borrower, a copy of the audited consolidated balance sheet
of the Borrower and its consolidated Subsidiaries as at the end of such
year and the related audited consolidated statements of income and of
cash flows for such year, setting forth in each case in comparative
form the figures for the previous year, reported on without a "going
concern" or like qualification or exception, or qualification arising
out of the scope of the audit, by Ernst &Young LLP or other independent
certified public accountants of nationally recognized standing.
(ii) Quarterly Financials. As soon as available, but in any
event not later than 50 days after the end of each of the first three
quarterly periods of each fiscal year of the Borrower, the unaudited
consolidated balance sheet of the Borrower and its consolidated
Subsidiaries as at the end of such quarter and the related unaudited
consolidated statements of income and of cash flows for such quarter
and the portion of the fiscal year of the Borrower through the end of
such quarter, setting forth in each case in comparative form the
figures for the previous year, certified by a Responsible Officer as
being fairly stated in all material respects (subject to normal
year-end adjustments).
All such financial statements, together with the notes thereto, shall
be complete and correct in all material respects and shall be prepared
in reasonable detail and in accordance with GAAP applied consistently
throughout the periods reflected therein and with prior periods (except
as approved by such accountants or officer, as the case may be, and
disclosed therein).
Any financial statement required to be delivered pursuant to this
Section 5.03(a) shall be deemed to have been delivered on the date on
which the Borrower posts such financial statement on its website on the
Internet at ▇▇▇.▇▇▇▇▇▇▇▇▇.▇▇▇ or when such financial statement is
posted on the SEC's website on the internet at ▇▇▇.▇▇▇.▇▇▇; provided
that the Borrower shall give notice of any such posting to the
Administrative Agent (who shall then give notice of any such posting to
the Lenders); provided, further, that the Borrower shall deliver paper
copies of any financial statement referred to in this Section 5.03(a)
to the Administrative Agent if the Administrative Agent or any Lender
requests the Borrower to deliver such paper copies until written notice
to cease delivering such paper copies is given by the Administrative
Agent.
(b) Certificates; Other Information. (i) concurrently with the
delivery of the financial statements referred to in Section 5.03(a)(i),
a certificate of the independent
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certified public accountants reporting on such financial statements
stating that in making the examination necessary therefor no knowledge
was obtained of any Default, except as specified in such certificate;
(ii) concurrently with the delivery of any financial
statements pursuant to Section 5.03(a), (A) a certificate of a
Responsible Officer stating that, to the best of each such Responsible
Officer's knowledge, the Borrower during such period has observed or
performed in all material respects all of its covenants and other
agreements, and satisfied every condition, contained in this Agreement
and the other Bridge Documents to which it is a party to be observed,
performed or satisfied by it, and that such Responsible Officer has
obtained no knowledge of any Default except as specified in such
certificate and (B) in the case of quarterly or annual financial
statements, a Compliance Certificate containing all information and
calculations necessary for determining compliance by the Borrower and
its Subsidiaries with the provisions of this Agreement referred to
therein as of the last day of the fiscal quarter or fiscal year of the
Borrower, as the case may be, including, without limitation, a report
as to the status of availability of the exception to the indebtedness
covenant contained in the Existing High Yield Indenture (including a
statement as to the amount of the Advances outstanding under this
Agreement that are permitted to be outstanding under the exception
contained in Section 4.03(a)(vii) of the Existing High Yield Indenture
relating to the acquisition of certain assets);
(iii) as soon as available, and in any event no later than 50
days after the end of each fiscal year of the Borrower, a detailed
consolidated budget for the following fiscal year of the Borrower
(including a projected consolidated balance sheet of the Borrower and
its Subsidiaries as of the end of the following fiscal year of the
Borrower, the related consolidated statements of projected cash flow
and projected income and a description of the underlying assumptions
applicable thereto), and, as soon as available, significant revisions,
if any, of such budget and projections with respect to such fiscal year
of the Borrower (collectively, the "PROJECTIONS"), which Projections
shall in each case be accompanied by a certificate of a Responsible
Officer stating that such Projections are based on reasonable
estimates, information and assumptions believed by the Borrower to be
reasonable at the time made and that such Responsible Officer has no
reason to believe that such Projections are incorrect or misleading in
any material respect (it being recognized by the Lenders that such
opinions, projections and forecasts as to any future event or state of
affairs are not to be viewed as factual information and that actual
results during the period or periods covered by any such opinion,
projection or forecast may differ from the opinions and projected or
forecast results);
(iv) no later than 10 Business Days prior to the effectiveness
thereof, copies of substantially final drafts of any proposed
amendment, supplement, waiver or other modification with respect to the
Existing High Yield Indenture;
(v) within five days after the same are sent, copies of all
financial statements and reports that the Borrower sends to the holders
of any class of its debt securities or public equity securities and,
within five days after the same are filed, copies of all financial
statements and reports that the Borrower may make to, or file with, the
SEC; and
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(vi) promptly, such additional financial and other information
as any Lender may from time to time reasonably request through the
Administrative Agent.
Any delivery required to be made pursuant to Section 5.03(b)(v) shall
be deemed to have been made on the date on which the Borrower posts
such delivery on its website on the internet at ▇▇▇.▇▇▇▇▇▇▇▇▇.▇▇▇ or
when such delivery is posted on the SEC's website on the internet at
▇▇▇.▇▇▇.▇▇▇; provided that the Borrower shall give notice of any such
posting to the Administrative Agent (who shall then give notice of any
such posting to the Lenders); provided, further, that the Borrower
shall deliver paper copies of any delivery referred to in Section
5.03(b)(v) to the Administrative Agent if the Administrative Agent or
any Lender requests the Borrower to deliver such paper copies until
written notice to cease delivering such paper copies is given by the
Administrative Agent.
(c) Notices. Promptly notice of: (i) the occurrence of any
Default or Event of Default;
(ii) any (A) default or event of default under any Contractual
Obligation of the Borrower or any of its Subsidiaries or (B)
litigation, investigation or proceeding that may exist at any time
between the Borrower or any of its Subsidiaries and any Governmental
Authority, that in either case, if not cured or if adversely
determined, as the case may be, could reasonably be expected to have a
Material Adverse Effect;
(iii) any litigation or proceeding affecting the Borrower or
any of its Subsidiaries (A) in which the amount involved is $5,000,000
or more and not covered by insurance, (B) in which injunctive or
similar relief is sought or (C) which relates to any Bridge Document;
(iv) the following events, and in any event within 30 days
after a Responsible Officer knows or has reason to know thereof: (A)
the occurrence of any Reportable Event with respect to any Plan, a
failure by the Borrower or any Commonly Controlled Entity to make any
required contribution to a Plan, the creation of any Lien in favor of
the PBGC or a Plan or any withdrawal from, or the termination,
Reorganization or Insolvency of, any Multiemployer Plan or (B) the
institution of proceedings or the taking of any other action by the
PBGC or the Borrower or any Commonly Controlled Entity or any
Multiemployer Plan with respect to the withdrawal from, or the
termination, Reorganization or Insolvency of, any Plan; provided that
in the case of either clause (A) or (B) above, such event or events
could reasonably be expected to result in liability in excess of
$5,000,000; and
(v) any development or event that has had or could reasonably
be expected to have a Material Adverse Effect.
Each notice pursuant to this Section 5.03(c) shall be accompanied by a
statement of a Responsible Officer setting forth details of the
occurrence referred to therein and stating what action the Borrower or
the relevant Subsidiary proposes to take with respect thereto.
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SECTION 5.04. Financial Covenants. Until the consummation of
the Exchange in accordance with Section 2.03(b) so long as any Bridge Advance or
any other Obligation of the Borrower under any Bridge Document (other than the
Rollover Notes or any other Exchange Document) shall remain unpaid or any Lender
shall have any Commitment hereunder with respect to any Bridge Advance, the
Borrower will not:
(a) Senior Leverage Ratio. Permit the Senior Leverage Ratio as
of the last day of any fiscal quarter of the Borrower during the period
set forth below to exceed the ratio set forth below opposite such
fiscal quarter:
FISCAL QUARTER SENIOR LEVERAGE RATIO
-------------- ---------------------
Effective Date - 06/30/01 5.00 to 1.0
07/01/01 - 12/31/01 4.50 to 1.0
(b) Consolidated Leverage Ratio. Permit the Consolidated
Leverage Ratio as of the last day of any fiscal quarter of the Borrower
during the period set forth below to exceed the ratio set forth below
opposite such fiscal quarter:
CONSOLIDATED
FISCAL QUARTER LEVERAGE RATIO
-------------- --------------
Effective Date - 03/31/01 16.00 to 1.0
04/01/01 - 06/30/01 15.00 to 1.0
07/01/01 - 09/30/01 13.00 to 1.0
10/01/01 - 12/31/01 12.00 to 1.0
ARTICLE VI
EVENTS OF DEFAULT
SECTION 6.01. Events of Default. If any of the following
events ("EVENTS OF DEFAULT") shall occur and be continuing:
(a) (i) the Borrower shall fail to pay any principal of any
Advance when the same shall become due and payable or (ii) the Borrower
shall fail to pay any interest on any Advance, or the Borrower shall
fail to make any other payment under any Bridge Document, in each case
under this clause (ii) within 5 days after the same becomes due and
payable; or
(b) any representation or warranty made by the Borrower (or
any of its officers) under or in connection with any Bridge Document
shall prove to have been incorrect in any material respect when made;
or
(c) the Borrower shall fail to perform or observe any term,
covenant or agreement contained in Section 2.03(b), 2.13, 5.01(b)(i),
5.02, 5.03(c)(i) or 5.04; or
(d) the Borrower shall fail to perform or observe any other
term, covenant or agreement contained in any Bridge Document on its
part to be performed or observed if
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such failure shall remain unremedied for 30 days after the earlier of
the date on which (i) a Responsible Officer becomes aware of such
failure or (ii) written notice thereof shall have been given to the
Borrower by the Administrative Agent or any Lender; or
(e) the Borrower or any of its Subsidiaries shall fail to pay
any principal of, premium or interest on or any other amount payable in
respect of any Indebtedness of the Borrower or such Subsidiary (as the
case may be) that is outstanding in a principal amount of at least
$10,000,000 either individually or in the aggregate (but excluding
Indebtedness outstanding hereunder), when the same becomes due and
payable (whether by scheduled maturity, required prepayment,
acceleration, demand or otherwise), and such failure shall continue
after the applicable grace period, if any, specified in the agreement
or instrument relating to such Indebtedness; or any other event shall
occur or condition shall exist under any agreement or instrument
relating to any such Indebtedness and shall continue after the
applicable grace period, if any, specified in such agreement or
instrument, if the effect of such event or condition is to accelerate
the maturity of such Indebtedness or otherwise to cause, such
Indebtedness to mature; or any such Indebtedness shall be declared to
be due and payable or required to be prepaid or redeemed (other than by
a regularly scheduled required prepayment or redemption), purchased or
defeased, or an offer to prepay, redeem, purchase or defease such
Indebtedness shall be required to be made, in each case prior to the
stated maturity thereof; or
(f) the Borrower or any of its Subsidiaries shall generally
not pay its debts as such debts become due, or shall admit in writing
its inability to pay its debts generally, or shall make a general
assignment for the benefit of creditors; or any proceeding shall be
instituted by or against the Borrower or any of its Subsidiaries
seeking to adjudicate it a bankrupt or insolvent, or seeking
liquidation, winding up, reorganization, arrangement, adjustment,
protection, relief, or composition of it or its debts under any law
relating to bankruptcy, insolvency or reorganization or relief of
debtors, or seeking the entry of an order for relief or the appointment
of a receiver, trustee or other similar official for it or for any
substantial part of its property and, in the case of any such
proceeding instituted against it (but not instituted by it) that is
being diligently contested by it in good faith, either such proceeding
shall remain undismissed or unstayed for a period of 60 days or any of
the actions sought in such proceeding (including, without limitation,
the entry of an order for relief against, or the appointment of a
receiver, trustee, custodian or other similar official for, it or any
substantial part of its property) shall occur; or the Borrower or any
of its Subsidiaries shall take any corporate action to authorize any of
the actions set forth above in this subsection (f); or
(g) one or more judgments or decrees shall be entered against
the Borrower or any of its Subsidiaries involving in the aggregate a
liability (to the extent (i) not paid by insurance or (ii) as to which
no reasonable expectation of insurance coverage exists) of $10,000,000
or more (or, with respect to judgments related to reciprocal
compensation arrangements for which reserves in conformity with GAAP
have been provided on the books of the Borrower or its Subsidiaries or
that have not yet been recognized as revenue, $15,000,000 or more), and
all such judgments or decrees shall not have been vacated, discharged,
stayed or bonded pending appeal within 30 days from the entry thereof;
or
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(h) any provision of any Bridge Document after delivery
thereof pursuant to Section 3.01 shall for any reason cease to be valid
and binding on or enforceable against the Borrower party to it, or any
the Borrower shall so state in writing; or
(i) (i) any Person shall engage in any "prohibited
transaction" (as defined in Section 406 of ERISA or Section 4975 of the
Code) involving any Plan, (ii) any "accumulated funding deficiency" (as
defined in Section 302 of ERISA), whether or not waived, shall exist
with respect to any Plan or any Lien in favor of the PBGC or a Plan
shall arise on the assets of the Borrower or any Commonly Controlled
Entity, (iii) a Reportable Event shall occur with respect to, or
proceedings shall commence to have a trustee appointed, or a trustee
shall be appointed, to administer or to terminate, any Single Employer
Plan, which Reportable Event or commencement of proceedings or
appointment of a trustee is, in the reasonable opinion of the Required
Lenders, likely to result in the termination of such Plan for purposes
of Title IV of ERISA, (iv) any Single Employer Plan shall terminate for
purposes of Title IV of ERISA, (v) the Borrower or any Commonly
Controlled Entity shall, or in the reasonable opinion of the Required
Lenders is likely to, incur any liability in connection with a
withdrawal from, or the Insolvency or Reorganization of, a
Multiemployer Plan or (vi) any other event or condition other than in
the ordinary course shall occur or exist with respect to a Plan; and in
each case in clauses (i) through (vi) above, such event or condition,
together with all other such events or conditions, if any, could, in
the sole judgment of the Required Lenders, reasonably be expected to
have a Material Adverse Effect;
then, and in any such event, the Administrative Agent (i) shall at the request,
or may with the consent, of the Required Lenders, by notice to the Borrower,
declare the Commitments of each Lender and the obligation of each Lender to make
Advances to be terminated, whereupon the same shall forthwith terminate, and
(ii) shall at the request, or may with the consent, of the Required Lenders, by
notice to the Borrower, declare the Advances, the Notes, all interest thereon
and all other amounts payable under this Agreement and the other Bridge
Documents to be forthwith due and payable, whereupon the Advances, the Notes,
all such interest and all such amounts shall become and be forthwith due and
payable, without presentment, demand, protest or further notice of any kind, all
of which are hereby expressly waived by the Borrower; provided, however, that in
the event of an actual or deemed entry of an order for relief with respect to
the Borrower under the Federal Bankruptcy Code, (A) the Commitments of each
Lender and the obligation of each Lender to make Advances shall automatically be
terminated and (B) the Advances, the Notes, all such interest and all such
amounts shall automatically become and be due and payable, without presentment,
demand, protest or any notice of any kind, all of which are hereby expressly
waived by the Borrower.
ARTICLE VII
THE AGENTS
SECTION 7.01. Authorization and Action. Each Lender hereby
appoints and authorizes the Administrative Agent to take such action as agent on
its behalf and to exercise such powers and discretion under this Agreement and
the other Bridge Documents as are delegated to the Administrative Agent by the
terms hereof and thereof, together with such
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powers and discretion as are reasonably incidental thereto. As to any matters
not expressly provided for by the Bridge Documents (including, without
limitation, enforcement or collection of the Notes), the Administrative Agent
shall not be required to exercise any discretion or take any action, but shall
be required to act or to refrain from acting (and shall be fully protected in so
acting or refraining from acting) upon the instructions of the Required Lenders,
and such instructions shall be binding upon all Lenders and all holders of
Notes; provided, however, that the Administrative Agent shall not be required to
take any action that exposes the Administrative Agent to personal liability or
that is contrary to this Agreement or applicable law. The Administrative Agent
agrees to give to each Lender prompt notice of each notice given to it by the
Borrower pursuant to the terms of this Agreement.
SECTION 7.02. Administrative Agent's Reliance, Etc. Neither
the Administrative Agent nor any of its directors, officers, agents or employees
shall be liable for any action taken or omitted to be taken by it or them under
or in connection with the Bridge Documents, except for its or their own gross
negligence or willful misconduct. Without limitation of the generality of the
foregoing, the Administrative Agent: (a) may treat the payee of any Note as the
holder thereof until the Administrative Agent receives and accepts an Assignment
and Acceptance entered into by the Lender that is the payee of such Note, as
assignor, and an Eligible Assignee, as assignee, as provided in Section 8.07;
(b) may consult with legal counsel (including counsel for the Borrower),
independent public accountants and other experts selected by it and shall not be
liable for any action taken or omitted to be taken in good faith by it in
accordance with the advice of such counsel, accountants or experts; (c) makes no
warranty or representation to any Lender and shall not be responsible to any
Lender for any statements, warranties or representations (whether written or
oral) made in or in connection with the Bridge Documents; (d) shall not have any
duty to ascertain or to inquire as to the performance or observance of any of
the terms, covenants or conditions of any Bridge Document on the part of the
Borrower or to inspect the property (including the books and records) of the
Borrower; (e) shall not be responsible to any Lender for the due execution,
legality, validity, enforceability, genuineness, sufficiency or value of any
Bridge Document or any other instrument or document furnished pursuant thereto;
and (f) shall incur no liability under or in respect of any Bridge Document by
acting upon any notice, consent, certificate or other instrument or writing
(which may be by telegram, telecopy or telex) believed by it to be genuine and
signed or sent by the proper party or parties.
SECTION 7.03. MSSF and Affiliates. With respect to its
Commitments, the Advances made by it and the Notes issued to it, MSSF shall have
the same rights and powers under the Bridge Documents as any other Lender and
may exercise the same as though it were not the Administrative Agent; and the
term "Lender" or "Lenders" shall, unless otherwise expressly indicated, include
MSSF in its individual capacity. MSSF and its affiliates may accept deposits
from, lend money to, act as trustee under indentures of, accept investment
banking engagements from and generally engage in any kind of business with, the
Borrower, any of its Subsidiaries and any Person that may do business with or
own securities of the Borrower or any such Subsidiary, all as if MSSF was not
the Administrative Agent and without any duty to account therefor to the
Lenders.
SECTION 7.04. Lender Credit Decision. Each Lender acknowledges
that it has, independently and without reliance upon the Administrative Agent or
any other Lender and
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based on the financial statements referred to in Section 4.01 and such other
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 and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
credit decisions in taking or not taking action under this Agreement.
SECTION 7.05. Indemnification. (a) Each Lender severally
agrees to indemnify the Administrative Agent (to the extent not promptly
reimbursed by the Borrower) from and against such Lender's ratable share
(determined as provided below) of any and all liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
of any kind or nature whatsoever that may be imposed on, incurred by, or
asserted against the Administrative Agent in any way relating to or arising out
of the Bridge Documents or any action taken or omitted by the Administrative
Agent under the Bridge Documents (collectively, the "INDEMNIFIED COSTS");
provided, however, that no Lender shall be liable for any portion of such
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements resulting from the Administrative Agent's gross
negligence or willful misconduct as found in a final, non-appealable judgment by
a court of competent jurisdiction. Without limitation of the foregoing, each
Lender agrees to reimburse the Administrative Agent promptly upon demand for its
ratable share of any costs and expenses (including, without limitation, fees and
expenses of counsel) payable by the Borrower under Section 8.04, to the extent
that the Administrative Agent is not promptly reimbursed for such costs and
expenses by the Borrower. In the case of any investigation, litigation or
proceeding giving rise to any Indemnified Costs, this Section 7.05 applies
whether any such investigation, litigation or proceeding is brought by any
Lender or any other Person.
(b) For purposes of this Section 7.05, the Lenders' respective
ratable shares of any amount shall be determined, at any time, according to the
sum of (i) the aggregate principal amount of the Advances outstanding at such
time and owing to the respective Lenders and (ii) the aggregate unused portions
of their respective Commitments at such time. The failure of any Lender to
reimburse the Administrative Agent promptly upon demand for its ratable share of
any amount required to be paid by the Lenders to the Administrative Agent as
provided herein shall not relieve any other Lender of its obligation hereunder
to reimburse the Administrative Agent for its ratable share of such amount, but
no Lender shall be responsible for the failure of any other Lender to reimburse
the Administrative Agent for such other Lender's ratable share of such amount.
Without prejudice to the survival of any other agreement of any Lender
hereunder, the agreement and obligations of each Lender contained in this
Section 7.05 shall survive the payment in full of principal, interest and all
other amounts payable hereunder and under the other Bridge Documents.
SECTION 7.06. Successor Administrative Agent. The
Administrative Agent may resign at any time by giving 30 days' prior written
notice thereof to the Lenders and the Borrower and may be removed at any time
with or without cause by the Required Lenders with, so long as no Event of
Default shall have occurred, the consent of the Borrower. Upon any such
resignation or removal, the Required Lenders shall have the right to appoint a
successor Administrative Agent with the consent of the Borrower so long as no
Event of Default shall have occurred and be continuing at the time of such
appointment. If no successor Administrative
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Agent shall have been so appointed by the Required Lenders, and shall have
accepted such appointment, within 30 days after the retiring Administrative
Agent's giving of notice of resignation or the Required Lenders' removal of the
retiring Administrative Agent, then the retiring Administrative Agent may, on
behalf of the Lenders, appoint a successor Administrative Agent, which shall be
a commercial bank organized or licensed under the laws of the United States or
of any State thereof and having a combined capital and surplus of at least
$250,000,000. Upon the acceptance of any appointment as Administrative Agent
hereunder by a successor Administrative Agent, such successor Administrative
Agent shall succeed to and become vested with all the rights, powers,
discretion, privileges and duties of the retiring Administrative Agent, and the
retiring Administrative Agent shall be discharged from its duties and
obligations under the Bridge Documents. If within 45 days after written notice
is given of the retiring Administrative Agent's resignation or removal under
this Section 7.06 no successor Administrative Agent shall have been appointed
and shall have accepted such appointment, then on such 45th day (a) the retiring
Administrative Agent's resignation or removal shall become effective, (b) the
retiring Administrative Agent shall thereupon be discharged from its duties and
obligations under the Bridge Documents and (c) the Required Lenders shall
thereafter perform all duties of the retiring Administrative Agent under the
Bridge Documents until such time, if any, as the Required Lenders appoint a
successor Administrative Agent as provided above. After any retiring
Administrative Agent's resignation or removal hereunder as Administrative Agent
shall have become effective, the provisions of this Article VII shall inure to
its benefit as to any actions taken or omitted to be taken by it while it was
Administrative Agent under this Agreement.
ARTICLE VIII
MISCELLANEOUS
SECTION 8.01. Amendments, Etc. No amendment or waiver of any
provision of this Agreement or the Notes or any other Bridge Document, nor
consent to any departure by the Borrower therefrom, shall in any event be
effective unless the same shall be in writing and signed by the Required
Lenders, and then such waiver or consent shall be effective only in the specific
instance and for the specific purpose for which given; provided, however, that
no amendment, waiver or consent shall, unless in writing and signed by all of
the Lenders (other than any Lender that is, at such time, a Defaulting Lender),
do any of the following at any time: (i) waive any of the conditions specified
in Section 3.01, (ii) change the number of Lenders or the percentage of (A) the
Commitments or (B) the aggregate unpaid principal amount of the Advances that,
in each case, shall be required for the Lenders or any of them to take any
action hereunder, (iii) amend Section 2.13 or this Section 8.01, (iv) increase
the Commitments of the Lenders, (v) reduce the principal of, or interest on, the
Advances and the Notes or any fees or other amounts payable hereunder, (vi)
postpone any date scheduled for any payment of principal of, or interest on, the
Advances and the Notes pursuant to Section 2.03 or 2.06 or any date fixed for
payment of fees or other amounts payable hereunder, or (ix) limit the liability
of the Borrower under any of the Bridge Documents; provided further that no
amendment, waiver or consent shall, unless in writing and signed by the
Administrative Agent in addition to the Lenders required above to take such
action, affect the rights or duties of the Administrative Agent under this
Agreement or the other Bridge Documents.
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SECTION 8.02. Notices, Etc. All notices and other
communications provided for hereunder shall be in writing (including
telegraphic, telecopy or telex communication) and mailed, telegraphed,
telecopied, telexed or delivered, if to the Borrower, at its address at ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇ ▇▇▇▇▇▇; if to any
Initial Lender, at its Domestic Lending Office specified opposite its name on
Schedule I hereto; if to any other Lender, at its Domestic Lending Office
specified in the Assignment and Acceptance pursuant to which it became a Lender;
and if to the Administrative Agent, at its address at ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇ ▇▇▇▇▇▇, telephone: (▇▇▇) ▇▇▇-▇▇▇▇;
facsimile: (▇▇▇) ▇▇▇-▇▇▇▇ (or - 1866); or, as to the Borrower or the
Administrative Agent, at such other address as shall be designated by such party
in a written notice to the other parties and, as to each other party, at such
other address as shall be designated by such party in a written notice to the
Borrower and the Administrative Agent. All such notices and other communications
shall, when mailed, telegraphed, telecopied or telexed, be effective when
deposited in the mails, delivered to the telegraph company, transmitted by
telecopier or confirmed by telex answerback, respectively, except that notices
and communications to the Administrative Agent pursuant to Article II, III or
VII shall not be effective until received by the Administrative Agent. Delivery
by telecopier of an executed counterpart of any amendment or waiver of any
provision of this Agreement or the Notes or of any Exhibit hereto to be executed
and delivered hereunder shall be effective as delivery of an original executed
counterpart thereof.
SECTION 8.03. No Waiver; Remedies. No failure on the part of
any Lender or the Administrative Agent to exercise, and no delay in exercising,
any right hereunder or under any Note shall operate as a waiver thereof; nor
shall any single or partial exercise of any such right preclude any other or
further exercise thereof or the exercise of any other right. The remedies herein
provided are cumulative and not exclusive of any remedies provided by law.
SECTION 8.04. Costs and Expenses. (a) The Borrower agrees to
pay promptly following demand therefor (i) all reasonable costs and expenses of
the Administrative Agent in connection with the preparation, execution,
delivery, administration, modification and amendment of the Bridge Documents and
the other matters referred to therein (including travel costs, document
production and other expenses of this type and the reasonable fees and expenses
of one firm of primary counsel for the Administrative Agent and the Lenders with
respect thereto and fees of other professional advisors retained with the
Borrower's consent, with respect to advising the Administrative Agent as to its
rights and responsibilities, or the perfection, protection or preservation of
rights or interests, under the Bridge Documents, with respect to negotiations
with the Borrower or with other creditors of the Borrower or any of its
Subsidiaries arising out of any Default and with respect to presenting claims in
or otherwise participating in or monitoring any bankruptcy, insolvency or other
similar proceeding involving creditors' rights generally and any proceeding
ancillary thereto) and (ii) all costs and expenses of the Administrative Agent
and each Lender in connection with the enforcement of the Bridge Documents,
whether in any action, suit or litigation, or any bankruptcy, insolvency or
other similar proceeding affecting creditors' rights generally (including,
without limitation, the reasonable fees and expenses of counsel for the
Administrative Agent and each Lender with respect thereto).
(b) The Borrower agrees to indemnify, defend and save and hold
harmless the Administrative Agent, each Lender and each of their Affiliates and
their respective officers,
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directors, employees, agents and advisors (each, an "INDEMNIFIED PARTY") from
and against, and shall pay promptly following demand therefor, any and all
claims, damages, losses, liabilities and expenses (including, without
limitation, reasonable fees and expenses of counsel) incurred by or asserted or
awarded against any Indemnified Party, in each case arising out of or in
connection with or by reason of (including, without limitation, in connection
with any investigation, litigation or proceeding or preparation of a defense in
connection therewith) (i) the Bridge Facility, the actual or proposed use of the
proceeds of the Advances, the Bridge Documents or any of the transactions
contemplated thereby, including, without limitation, any acquisition or proposed
acquisition (including, without limitation, the Transaction) or (ii) any
violation of, noncompliance with or liability under any Environmental Law
applicable to the operations of the Borrower or any of its Subsidiaries or any
of the Properties, except to the extent such claim, damage, loss, liability or
expense is found in a final, non-appealable judgment by a court of competent
jurisdiction to have resulted from such Indemnified Party's gross negligence or
willful misconduct. In the case of an investigation, litigation or other
proceeding to which the indemnity in this Section 8.04(b) applies, such
indemnity shall be effective whether or not such investigation, litigation or
proceeding is brought by the Borrower, its directors, shareholders or creditors
or an Indemnified Party, whether or not any Indemnified Party is otherwise a
party thereto and whether or not the Acquisition is consummated. The Borrower
also agrees not to assert any claim against the Administrative Agent, any Lender
or any of their Affiliates, or any of their respective officers, directors,
employees, agents and advisors, on any theory of liability, for special,
indirect, consequential or punitive damages arising out of or otherwise relating
to the Bridge Facility, the actual or proposed use of the proceeds of the
Advances, the Bridge Documents or any of the transactions contemplated by the
Bridge Documents except to the extent such claim is based upon willful
misconduct. It is understood and agreed that, to the extent not precluded by a
conflict of interest, each Indemnified Party shall endeavor to work
cooperatively with a view to minimizing the legal and other expenses associated
with any defense and any potential settlement or judgment.
(c) If any payment of principal of, or Conversion of, any
Eurodollar Rate Advance is made by the Borrower to or for the account of a
Lender or if any Exchange Security is issued for an Exchange Advance other than
on the last day of the Interest Period for such Advance, as a result of an
issuance, payment or Conversion pursuant to Section 2.03, 2.05, 2.08(b)(i) or
2.09(d), acceleration of the maturity of the Notes pursuant to Section 6.01 or
for any other reason, or if the Borrower fails to make any payment or prepayment
of an Advance for which a notice of prepayment has been given or that is
otherwise required to be made, whether pursuant to Section 2.03, 2.05 or 6.01 or
otherwise, the Borrower shall, upon demand by such Lender (with a copy of such
demand to the Administrative Agent), pay to the Administrative Agent for the
account of such Lender any amounts required to compensate such Lender for any
additional losses, costs or expenses that it may reasonably incur as a result of
such payment or Conversion or such failure to pay or prepay, as the case may be,
including, without limitation, any loss, cost or expense incurred by reason of
the liquidation or reemployment of deposits or other funds acquired by any
Lender to fund or maintain such Advance. Such indemnification may include an
amount equal to the excess, if any, of (i) the amount of interest that would
have accrued on the amount so prepaid, or not so borrowed, converted or
continued, for the period from the date of such prepayment or of such failure to
borrow, convert or continue to the last day of such Interest Period (or, in the
case of a failure to borrow, convert or continue, the Interest Period that would
have commenced on the date of such failure) in each case at the applicable rate
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of interest for such Loans provided for herein (excluding, however, the
Applicable Margin included therein, if any) over (ii) the amount of interest (as
reasonably determined by such Lender) that would have accrued to such Lender on
such amount by placing such amount on deposit for a comparable period with
leading banks in the interbank eurodollar market.
(d) If the Borrower fails to pay when due any costs, expenses
or other amounts payable by it under any Bridge Document, including, without
limitation, fees and expenses of counsel and indemnities, such amount may be
paid on behalf of the Borrower by the Administrative Agent or any Lender, in its
sole discretion.
(e) Without prejudice to the survival of any other agreement
of the Borrower hereunder or under any other Bridge Document, the agreements and
obligations of the Borrower contained in Sections 2.09 and 2.11 and this Section
8.04 shall survive the payment in full of principal, interest and all other
amounts payable hereunder and under any of the other Bridge Documents.
SECTION 8.05. Right of Set-off. Upon (a) the occurrence and
during the continuance of any Event of Default and (b) the making of the request
or the granting of the consent specified by Section 6.01 to authorize the
Administrative Agent to declare the Notes due and payable pursuant to the
provisions of Section 6.01, the Administrative Agent and each Lender and each of
their respective Affiliates is hereby authorized at any time and from time to
time, to the fullest extent permitted by law, to set off and otherwise 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 the Administrative
Agent, such Lender or such Affiliate to or for the credit or the account of the
Borrower against any and all of the Obligations of the Borrower now or hereafter
existing under the Bridge Documents, irrespective of whether the Administrative
Agent or such Lender shall have made any demand under this Agreement or such
Note or Notes and although such obligations may be unmatured. The Administrative
Agent and each Lender agrees promptly to notify the Borrower after any such
set-off and application; provided, however, that the failure to give such notice
shall not affect the validity of such set-off and application. The rights of the
Administrative Agent and each Lender and their respective Affiliates under this
Section are in addition to other rights and remedies (including, without
limitation, other rights of set-off) that the Administrative Agent, such Lender
and their respective Affiliates may have.
SECTION 8.06. Binding Effect. This Agreement shall become
effective when it shall have been executed by the Borrower and the
Administrative Agent and the Administrative Agent shall have been notified by
each Initial Lender that such Initial Lender has executed it and thereafter
shall be binding upon and inure to the benefit of the Borrower, the
Administrative Agent and each Lender and their respective successors and
assigns, except that the Borrower shall not have the right to assign its rights
hereunder or any interest herein without the prior written consent of the
Lenders.
SECTION 8.07. Assignments and Participations. (a) Each Lender
may upon 10 days' notice to the Borrower and, so long as no Default shall have
occurred and be continuing, if demanded by the Borrower (following a demand by
such Lender pursuant to Section 2.09 or 2.11) upon at least five Business Days'
notice to such Lender and the Administrative Agent, will assign to one or more
Eligible Assignees all or a portion of its rights and obligations under this
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Agreement (including, without limitation, all or a portion of its Commitment,
the Advances owing to it and the Note or Notes, if any, held by it); provided,
however, that (i) each such assignment shall be of a uniform, and not a varying,
percentage of all rights and obligations under and in respect of the Bridge
Facility, (ii) except in the case of an assignment to a Person that, immediately
prior to such assignment, was a Lender or an Affiliate of a Lender or an
assignment of all of a Lender's rights and obligations under this Agreement, the
aggregate amount of the Commitments being assigned to such Eligible Assignee
pursuant to such assignment (determined as of the date of the Assignment and
Acceptance with respect to such assignment) shall in no event be less than
$1,000,000 (or such lesser amount as shall be approved by the Administrative
Agent and, so long as no Default shall have occurred and be continuing at the
time of effectiveness of such assignment, the Borrower), (iii) each such
assignment shall be to an Eligible Assignee, (iv) each such assignment made as a
result of a demand by the Borrower pursuant to this Section 8.07(a) shall be
arranged by the Borrower after consultation with the Administrative Agent and
the Administrative Agent shall use reasonable efforts to assist the Borrower in
such arrangement, and shall be either an assignment of all of the rights and
obligations of the assigning Lender under this Agreement or an assignment of a
portion of such rights and obligations made concurrently with another such
assignment or other such assignments that together cover all of the rights and
obligations of the assigning Lender under this Agreement, (v) no Lender shall be
obligated to make any such assignment as a result of a demand by the Borrower
pursuant to this Section 8.07(a) unless and until such Lender shall have
received one or more payments from either the Borrower or one or more Eligible
Assignees in an aggregate amount at least equal to the aggregate outstanding
principal amount of the Advances owing to such Lender, together with accrued
interest thereon to the date of payment of such principal amount and all other
amounts payable to such Lender under this Agreement, (vi) no such assignments
shall be permitted without the consent of the Administrative Agent until the
Administrative Agent shall have notified the Lenders that syndication of the
Commitments hereunder has been completed and (vii) the parties to each such
assignment shall execute and deliver to the Administrative Agent, for its
acceptance and recording in the Register, an Assignment and Acceptance, together
with any Note or Notes subject to such assignment and a processing and
recordation fee of $3,500 provided, however, that for each such assignment made
as a result of a demand by the Borrower pursuant to this Section 8.07(a), the
Borrower shall pay to the Administrative Agent the applicable processing and
recordation fee. In connection with any such assignment of Exchange Advances by
an assigning Lender, such Lender may, at its option, irrevocably designate all
or part of the Exchange Advances being assigned by it as Non-Call Advances,
effective as of the date of effectiveness of the applicable Assignment and
Acceptance.
(b) Upon such execution, delivery, acceptance and recording,
from and after the effective date specified in such Assignment and Acceptance,
(i) the assignee thereunder shall be a party hereto and, to the extent that
rights and obligations hereunder have been assigned to it pursuant to such
Assignment and Acceptance, have the rights and obligations of a Lender hereunder
and (ii) the Lender assignor thereunder shall, to the extent that rights and
obligations hereunder have been assigned by it pursuant to such Assignment and
Acceptance, relinquish its rights (other than its rights under Sections 2.09,
2.11 and 8.04 to the extent any claim thereunder relates to an event arising
prior to such assignment) and be released from its obligations under this
Agreement except for its obligations under Section 8.09 (and, in the case of an
Assignment
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and Acceptance covering all of the remaining portion of an assigning Lender's
rights and obligations under this Agreement, such Lender shall cease to be a
party hereto).
(c) By executing and delivering an Assignment and Acceptance,
each Lender assignor thereunder and each assignee thereunder confirm to and
agree with each other and the other parties thereto and hereto as follows: (i)
other than as provided in such Assignment and Acceptance, 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
any Bridge Document or the execution, legality, validity, enforceability,
genuineness, sufficiency or value of any Bridge Document or any other instrument
or document furnished pursuant thereto; (ii) such assigning Lender makes no
representation or warranty and assumes no responsibility with respect to the
financial condition of the Borrower or the performance or observance by the
Borrower of any of its obligations under any Bridge Document or any other
instrument or document furnished pursuant thereto; (iii) such assignee confirms
that it has received a copy of this Agreement, together with copies of the
financial statements referred to in Section 4.01 and such other documents and
information as it has deemed appropriate to make its own credit analysis and
decision to enter into such Assignment and Acceptance; (iv) such assignee will,
independently and without reliance upon the Administrative Agent, such assigning
Lender or any other Lender and based on such documents and information as it
shall deem appropriate at the time, continue to make its own credit decisions in
taking or not taking action under this Agreement; (v) such assignee confirms
that it is an Eligible Assignee; (vi) such assignee appoints and authorizes the
Administrative Agent to take such action as agent on its behalf and to exercise
such powers and discretion under the Bridge Documents as are delegated to the
Administrative Agent by the terms hereof and thereof, together with such powers
and discretion as are reasonably incidental thereto; and (vii) such assignee
agrees that it will perform in accordance with their terms all of the
obligations that by the terms of this Agreement are required to be performed by
it as a Lender.
(d) The Administrative Agent shall maintain at its address
referred to in Section 8.02 a copy of each Assignment and Acceptance delivered
to and accepted by it and a register for the recordation of the names and
addresses of the Lenders and the Commitment of, and principal amount of the
Bridge Advances and Exchange Advances (including Non-Call Advances) owing to,
each Lender from time to time (the "REGISTER"). The entries in the Register
shall be conclusive and binding for all purposes, absent manifest error, and the
Borrower, the Administrative Agent and the Lenders may treat each Person whose
name is recorded in the Register as a Lender hereunder for all purposes of this
Agreement. The Register shall be available for inspection by the Borrower or the
Administrative Agent or any Lender at any reasonable time and from time to time
upon reasonable prior notice.
(e) Upon its receipt of an Assignment and Acceptance executed
by an assigning Lender and an assignee, together with any Note or Notes subject
to such assignment, the Administrative Agent shall, if such Assignment and
Acceptance has been completed and is in substantially the form of Exhibit C
hereto, (i) accept such Assignment and Acceptance, (ii) record the information
contained therein in the Register and (iii) give prompt notice thereof to the
Borrower and the Administrative Agent. In the case of any assignment by a
Lender, within five Business Days after its receipt of such notice, the
Borrower, at its own expense, shall execute and deliver to the Administrative
Agent in exchange for the surrendered Note or Notes a
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new Note to the order of such Eligible Assignee in an amount equal to the
Commitment assumed by it pursuant to such Assignment and Acceptance and, if any
assigning Lender has retained a Commitment hereunder, a new Note to the order of
such assigning Lender in an amount equal to the Commitment retained by it
hereunder. Such new Note or Notes shall be in an aggregate principal amount
equal to the aggregate principal amount of such surrendered Note or Notes, shall
be dated the effective date of such Assignment and Acceptance and shall
otherwise be in substantially the form of Exhibit A-1 or A-2 hereto, as the case
may be.
(f) Each Lender may sell participations to one or more Persons
(other than the Borrower or any of its Affiliates) in or to all or a portion of
its rights and obligations under this Agreement (including, without limitation,
all or a portion of its Commitment, the Advances owing to it and the Note or
Notes (if any) held by it); provided, however, that (i) such Lender's
obligations under this Agreement (including, without limitation, its Commitment)
shall remain unchanged, (ii) such Lender shall remain solely responsible to the
other parties hereto for the performance of such obligations, (iii) such Lender
shall remain the holder of any such Note for all purposes of this Agreement,
(iv) the Borrower, the Administrative Agent and the other Lenders shall continue
to deal solely and directly with such Lender in connection with such Lender's
rights and obligations under this Agreement and (v) no participant under any
such participation shall have any right to approve any amendment or waiver of
any provision of any Bridge Document, or any consent to any departure by the
Borrower therefrom, except to the extent that such amendment, waiver or consent
would reduce the principal of, or interest on, the Notes or any fees or other
amounts payable hereunder, in each case to the extent subject to such
participation, postpone any date fixed for any payment of principal of, or
interest on, the Notes or any fees or other amounts payable hereunder, in each
case to the extent subject to such participation.
(g) Any Lender may, in connection with any assignment or
participation or proposed assignment or participation pursuant to this Section
8.07, disclose to the assignee or participant or proposed assignee or
participant any information relating to the Borrower furnished to such Lender by
or on behalf of the Borrower; provided, however, that, prior to any such
disclosure, the assignee or participant or proposed assignee or participant
shall expressly agree to preserve the confidentiality of any Confidential
Information received by it from such Lender.
(h) Notwithstanding any other provision set forth in this
Agreement, any Lender may at any time create a security interest in all or any
portion of its rights under this Agreement (including, without limitation, the
Advances owing to it and the Note or Notes held by it) in favor of any Federal
Reserve Bank in accordance with Regulation A of the Board of Governors of the
Federal Reserve System.
SECTION 8.08. Execution in Counterparts. This Agreement may be
executed in any number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed shall be deemed to be an
original and all of which taken together shall constitute one and the same
agreement. Delivery of an executed counterpart of a signature page to this
Agreement by telecopier shall be effective as delivery of an original executed
counterpart of this Agreement.
TWT Bridge Credit Agreement
78
82
SECTION 8.09. Confidentiality. Each of the Administrative
Agent and each Lender agrees to keep confidential all non-public information
(including oral information) provided to it by the Borrower or any of its
Subsidiaries pursuant to this Agreement that is designated by the Borrower or
such Subsidiary as confidential (the "CONFIDENTIAL INFORMATION"); provided that
nothing herein shall prevent the Administrative Agent or any Lender from
disclosing any such information (a) to the Administrative Agent, any other
Lender, or any Affiliate of any Lender (provided that such Affiliate expressly
agrees to comply with the provisions of this Section), (b) to any actual or
prospective assignee or participant that expressly agrees to comply with the
provisions of this Section, (c) to its employees, directors, agents, attorneys,
accountants and other professional advisors or those of any of its Affiliates,
(d) upon the request or demand of any Governmental Authority, (e) in response to
any order of any court or other Governmental Authority or as may otherwise be
required pursuant to any Requirement of Law, (f) if requested or required to do
so in connection with any litigation or similar proceeding, (g) that has been
publicly disclosed or otherwise disclosed to such Person on a non-confidential
basis, (h) to the National Association of Insurance Commissioners or any similar
organization or any nationally recognized rating agency that requires access to
information about a Lender's investment portfolio in connection with ratings
issued with respect to such Lender or (i) in connection with the exercise of any
remedy hereunder or under any other Loan Document; provided, further, that with
respect to disclosures pursuant to clauses (d), (e) and (f) of this Section,
unless prohibited by applicable law or court order, each Lender and the
Administrative Agent shall attempt to notify the Borrower of any request by any
governmental agency or representative thereof or other Person (other than any
such request in connection with an examination of the financial condition of
such Lender by such governmental agency) for disclosure of any material
confidential information after receipt of such request, and if reasonably
practicable and permissible, before disclosure of such information.
SECTION 8.10. Jurisdiction, Etc. (a) Each of the parties
hereto 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, in any action or proceeding arising out of or
relating to this Agreement or any of the other Bridge Documents to which it is a
party, 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 any such
New York State court or, to the fullest 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.
Nothing in this Agreement shall affect any right that any party may otherwise
have to bring any action or proceeding relating to this Agreement or any of the
other Bridge Documents in the courts of any jurisdiction.
(b) Each of the parties hereto irrevocably and unconditionally
waives, to the fullest extent it may legally and effectively do so, any
objection that it may now or hereafter have to the laying of venue of any suit,
action or proceeding arising out of or relating to this Agreement or any of the
other Bridge Documents to which it is a party in any New York State or Federal
court. Each of the parties hereto hereby irrevocably waives, to the fullest
extent permitted by law, the defense of an inconvenient forum to the maintenance
of such action or proceeding in any such court.
TWT Bridge Credit Agreement
79
83
SECTION 8.11. Governing Law. This Agreement and the Notes
shall be governed by, and construed in accordance with, the laws of the State of
New York.
TWT Bridge Credit Agreement
80
84
SCHEDULE I
COMMITMENTS AND APPLICABLE LENDING OFFICES
DOMESTIC EURODOLLAR
BRIDGE LENDING LENDING
NAME OF INITIAL LENDER COMMITMENT OFFICE OFFICE
-------------------------------------- --------------------- ----------------------- -----------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Senior Funding Inc. $361,669,000 ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇
▇▇ ▇▇▇▇▇ NY 10036
---------------------
▇▇▇▇▇▇ Commercial Paper Inc. $180,831,000 3 World Financial 3 World Financial
Center, 11th Floor Center, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇
▇▇ ▇▇▇▇▇ NY 10285
---------------------
The Chase Manhattan Bank $108,500,000 ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇ ▇▇▇▇▇ NY 10017
---------------------
Bear ▇▇▇▇▇▇▇ Corporate Lending Inc. $ 35,000,000 ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, New ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇ ▇▇▇▇
▇▇ ▇▇▇▇▇ NY 10167
---------------------
ABN AMRO Bank N.V. $ 14,000,000 ▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇ Salle
Suite 1500 Suite 1500
Chicago Chicago
IL 60604-1003 IL 60604-1003
---------------------
Total: $700,000,000
=====================
▇▇
▇▇▇▇▇▇▇ ▇-▇
▇▇▇▇ ▇▇
▇▇▇▇▇▇ NOTE
$_______________ Dated: [_________ __, ____]
FOR VALUE RECEIVED, the undersigned, TIME WARNER TELECOM INC.,
a Delaware corporation (the "BORROWER"), HEREBY PROMISES TO PAY to the order of
_________________________ (the "LENDER") for the account of its Applicable
Lending Office (as defined in the Credit Agreement referred to below) the
principal amount of the Advance (as defined below) owing to the Lender by the
Borrower pursuant to the Bridge Credit Agreement dated as of December 15, 2000
(as amended, amended and restated, supplemented or otherwise modified from time
to time, the "CREDIT AGREEMENT"; terms defined therein, unless otherwise defined
herein, being used herein as therein defined) among the Borrower, the Lender and
certain other Lenders party thereto, and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Senior Funding, Inc.
("MSSF"), as Administrative Agent for the Lender and such other Lenders on the
Maturity Date.
The Borrower promises to pay interest on the unpaid principal
amount of the Advance from the date of such Advance until such principal amount
is paid in full, at such interest rates, and payable at such times, as are
specified in the Credit Agreement; provided, however, that any interest payable
in excess of 15% per annum may, at the option of the Borrower, so long as no
Default shall have occurred and be continuing, not be paid in cash but may
instead be capitalized and shall be deemed to be an Advance constituting
additional principal hereunder, which additional principal shall bear interest
as set forth in the Credit Agreement.
Both principal and interest are payable in lawful money of the
United States of America to MSSF, as Administrative Agent, at _______________,
_______________ _____, in same day funds. The Advance owing to the Lender by the
Borrower and the maturity thereof, and all payments made on account of principal
thereof, shall be recorded by the Lender and, prior to any transfer hereof,
endorsed on the grid attached hereto, which is part of this Promissory Note;
provided, however, that the failure of the Lender to make any such recordation
or endorsement shall not affect the Obligations of the Borrower under this
Promissory Note.
This Promissory Note is one of the Notes referred to in, and
is entitled to the benefits of, the Credit Agreement. The Credit Agreement,
among other things, (i) provides for the making of a single advance (an
"ADVANCE") by the Lender to the Borrower in an amount not to exceed the U.S.
dollar amount first above mentioned, the indebtedness of the Borrower resulting
from such Advance being evidenced by this Promissory Note, and (ii) contains
provisions for acceleration of the maturity hereof upon the happening of certain
stated events and also for prepayments on account of principal hereof prior to
the maturity hereof upon the terms and conditions therein specified.
TIME WARNER TELECOM INC.
By
--------------------------------------
Title:
86
ADVANCES AND PAYMENTS OF PRINCIPAL
================================================================================
AMOUNT OF UNPAID
DATE AMOUNT OF PRINCIPAL PAID PRINCIPAL NOTATION
ADVANCE OR PREPAID BALANCE MADE BY
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87
EXHIBIT A-2
FORM OF
ROLLOVER NOTE
$_______________ Dated: [_________ __, ____]
FOR VALUE RECEIVED, the undersigned, TIME WARNER TELECOM INC.,
a Delaware corporation (the "BORROWER"), HEREBY PROMISES TO PAY to the order of
_________________________ (the "LENDER") for the account of its Applicable
Lending Office (as defined in the Credit Agreement referred to below) the
principal amount of the Advance (as defined below) owing to the Lender by the
Borrower pursuant to the Bridge Credit Agreement dated as of December 15, 2000
(as amended, amended and restated, supplemented or otherwise modified from time
to time, the "CREDIT AGREEMENT"; terms defined therein, unless otherwise defined
herein, being used herein as therein defined) among the Borrower, the Lender and
certain other Lenders party thereto, and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Senior Funding, Inc.
("MSSF"), as Administrative Agent for the Lender and such other Lenders on the
Maturity Date.
The Borrower promises to pay interest on the unpaid principal
amount of the Advance from the date of such Advance until such principal amount
is paid in full, at such interest rates, and payable at such times, as are
specified in the Credit Agreement; provided, however, that any interest payable
in excess of 15% per annum may, at the option of the Borrower, so long as no
Default shall have occurred and be continuing, not be paid in cash but may
instead be capitalized and shall be deemed to be an Advance constituting
additional principal hereunder, which additional principal shall bear interest
as set forth in the Credit Agreement.
Both principal and interest are payable in lawful money of the
United States of America to MSSF, as Administrative Agent, at _______________,
_______________ _____, in same day funds. The Advance owing to the Lender by the
Borrower and the maturity thereof, and all payments made on account of principal
thereof, shall be recorded by the Lender and, prior to any transfer hereof,
endorsed on the grid attached hereto, which is part of this Promissory Note;
provided, however, that the failure of the Lender to make any such recordation
or endorsement shall not affect the Obligations of the Borrower under this
Promissory Note.
88
This Promissory Note is one of the Notes referred to in, and
is entitled to the benefits of, the Credit Agreement. The Credit Agreement,
among other things, (i) provides for the making of a single advance (an
"ADVANCE") by the Lender to the Borrower in an amount not to exceed the U.S.
dollar amount first above mentioned, the indebtedness of the Borrower resulting
from such Advance being evidenced by this Promissory Note, and (ii) contains
provisions for acceleration of the maturity hereof upon the happening of certain
stated events and also for prepayments on account of principal hereof prior to
the maturity hereof upon the terms and conditions therein specified.
TIME WARNER TELECOM INC.
By
-----------------------------------
Title:
89
ADVANCES AND PAYMENTS OF PRINCIPAL
================================================================================
AMOUNT OF UNPAID
DATE AMOUNT OF PRINCIPAL PAID PRINCIPAL NOTATION
ADVANCE OR PREPAID BALANCE MADE BY
--------------------------------------------------------------------------------
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90
EXHIBIT B
FORM OF
NOTICE OF BORROWING
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Senior Funding, Inc.,
as Administrative Agent
under the Credit Agreement
referred to below
--------------------
-------------------- [Date]
Attention:
----------------
Ladies and Gentlemen:
The undersigned, TIME WARNER TELECOM INC. refers to the Bridge
Credit Agreement dated as of December 15, 2000 (as amended, amended and
restated, supplemented or otherwise modified from time to time, the "CREDIT
AGREEMENT"; the terms defined therein being used herein as therein defined),
among the undersigned, the Lenders party thereto, and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Senior
Funding, Inc. ("MSSF"), as Administrative Agent for the Lenders, and hereby
gives you notice, irrevocably, pursuant to Section 2.02 of the Credit Agreement
that the undersigned hereby requests a Borrowing under the Credit Agreement, and
in that connection sets forth below the information relating to such Borrowing
(the "PROPOSED BORROWING") as required by Section 2.02(a) of the Credit
Agreement:
(i) The Business Day of the Proposed Borrowing is _________
__, ____.
(ii) The Type of Advances comprising the Proposed Borrowing is
[Base Rate Advances] [Eurodollar Rate Advances].
(iii) The aggregate amount of the Proposed Borrowing is
$__________.
[(iv) The initial Interest Period for each Eurodollar Rate
Advance made as part of the Proposed Borrowing is __________ month[s].]
The undersigned hereby certifies that the following statements
are true on the date hereof, and will be true on the date of the Proposed
Borrowing:
(A) The representations and warranties contained in each
Bridge Document are correct on and as of the date of the Proposed
Borrowing, before and after giving effect to the Proposed Borrowing and
to the application of the proceeds therefrom, as though made on and as
of such date.
91
(B) No Default has occurred and is continuing, or would result
from such Proposed Borrowing or from the application of the proceeds
therefrom.
This Notice of Borrowing shall be irrevocable and binding on
the Borrower. In the case of any Borrowing comprised of Eurodollar Rate
Advances, the Borrower agrees to indemnify each Lender against any loss, cost or
expense incurred by such Lender as a result of any failure to fulfill on or
before the date specified in clause (i) above the applicable conditions set
forth in Article III of the Credit Agreement so as to cause such Advance not to
be made on such date, including, without limitation, any loss, cost or expense
incurred by reason of the liquidation or reemployment of deposits or other funds
acquired by such Lender to fund the Advance to be made by such Lender as part of
such Borrowing when such Advance, as a result of such failure, is not made on
such date. Such indemnification may include an amount equal to the excess, if
any, of (i) the amount of interest that would have accrued on the amount not so
borrowed for the period from the date of such failure to borrow to the last day
of the Interest Period that would have commenced on the date of such failure at
the applicable rate of interest for such Advances provided for in the Credit
Agreement (excluding, however, the Applicable Margin included therein, if any)
over (ii) the amount of interest (as reasonably determined by such Lender) that
would have accrued to such Lender on such amount by placing such amount on
deposit for a comparable period with leading banks in the interbank eurodollar
market.
Delivery of an executed counterpart of this Notice of
Borrowing by telecopier shall be effective as delivery of an original executed
counterpart of this Notice of Borrowing.
Very truly yours,
TIME WARNER TELECOM INC.
By
--------------------------------------
Title:
92
EXHIBIT C
FORM OF
ASSIGNMENT AND ACCEPTANCE
Reference is made to the Bridge Credit Agreement dated as of
December 15, 2000 (as amended, amended and restated, supplemented or otherwise
modified from time to time, the "CREDIT AGREEMENT"; the terms defined therein,
unless otherwise defined herein, being used herein as therein defined) among
TIME WARNER TELECOM INC., a Delaware corporation (the "BORROWER"), the Lenders
party thereto, and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Senior Funding, Inc., as Administrative Agent
for the Lenders.
Each "Assignor" referred to on Schedule 1 hereto (each, an
"ASSIGNOR") and each "Assignee" referred to on Schedule 1 hereto (each, an
"ASSIGNEE") agrees severally with respect to all information relating to it and
its assignment hereunder and on Schedule 1 hereto as follows:
1. Such Assignor hereby sells and assigns, without recourse
except as to the representations and warranties made by it herein, to such
Assignee, and such Assignee hereby purchases and assumes from such Assignor, an
interest in and to such Assignor's rights and obligations under the Credit
Agreement as of the date hereof equal to the percentage interest specified on
Schedule 1 hereto of all outstanding rights and obligations under the Credit
Agreement. After giving effect to such sale and assignment, such Assignee's
Commitments and the amount of the Advances owing to such Assignee will be as set
forth on Schedule 1 hereto.
2. Such Assignor (i) represents and warrants that its name set
forth on Schedule 1 hereto is its legal name, that it is the legal and
beneficial owner of the interest or interests being assigned by it hereunder and
that such interest or interests are free and clear of any adverse claim; (ii)
makes no representation or warranty and assumes no responsibility with respect
to any statements, warranties or representations made in or in connection with
any Bridge Document or the execution, legality, validity, enforceability,
genuineness, sufficiency or value of, or the perfection or priority of any lien
or security interest created or purported to be created under or in connection
with, any Bridge Document or any other instrument or document furnished pursuant
thereto; (iii) makes no representation or warranty and assumes no responsibility
with respect to the financial condition of the Borrower or any of its
Subsidiaries or the performance or observance by the Borrower or any of its
Subsidiaries of any of its obligations under any Bridge Document or any other
instrument or document furnished pursuant thereto; (iv) designates as Non-Call
Advances the Exchange Advances specified on Schedule 1 hereto; and (v) attaches
the Note or Notes held by such Assignor and requests that the Administrative
Agent exchange such Note or Notes for a new Note or Notes payable to the order
of such Assignee in an amount equal to the Commitments assumed by such Assignee
pursuant hereto or new Notes payable to the order of such Assignee in an amount
equal to the Commitments assumed by such Assignee pursuant hereto and such
Assignor in an amount equal to the Commitments retained by such Assignor under
the Credit Agreement, respectively, as specified on Schedule 1 hereto.
93
3. Such Assignee (i) confirms that it has received a copy of
the Credit Agreement, together with copies of the financial statements referred
to in Section 4.01 thereof and such other documents and information as it has
deemed appropriate to make its own credit analysis and decision to enter into
this Assignment and Acceptance; (ii) agrees that it will, independently and
without reliance upon the Administrative Agent, any Assignor or any other Lender
and based on such documents and information as it shall deem appropriate at the
time, continue to make its own credit decisions in taking or not taking action
under the Credit Agreement; (iii) represents and warrants that its name set
forth on Schedule 1 hereto is its legal name; (iv) confirms that it is an
Eligible Assignee; (v) appoints and authorizes the Administrative Agent to take
such action as agent on its behalf and to exercise such powers and discretion
under the Bridge Documents as are delegated to the Administrative Agent by the
terms thereof, together with such powers and discretion as are reasonably
incidental thereto; (vi) agrees that it will perform in accordance with their
terms all of the obligations that by the terms of the Credit Agreement are
required to be performed by it as a Lender; and (vii) attaches any U.S. Internal
Revenue Service forms required under Section 2.11 of the Credit Agreement.
4. Following the execution of this Assignment and Acceptance,
it will be delivered to the Administrative Agent for acceptance and recording by
the Administrative Agent. The effective date for this Assignment and Acceptance
(the "EFFECTIVE DATE") shall be the date of acceptance hereof by the
Administrative Agent, unless otherwise specified on Schedule 1 hereto.
5. Upon such acceptance and recording by the Administrative
Agent, as of the Effective Date, (i) such Assignee shall be a party to the
Credit Agreement and, to the extent provided in this Assignment and Acceptance,
have the rights and obligations of a Lender thereunder and (ii) such Assignor
shall, to the extent provided in this Assignment and Acceptance, relinquish its
rights and be released from its obligations under the Credit Agreement (other
than its rights and obligations under the Bridge Documents that are specified
under the terms of such Bridge Documents to survive the payment in full of the
Obligations of the Borrower under the Bridge Documents to the extent any claim
thereunder relates to an event arising prior to the Effective Date of this
Assignment and Acceptance) and, if this Assignment and Acceptance covers all of
the remaining portion of the rights and obligations of such Assignor under the
Credit Agreement, such Assignor shall cease to be a party thereto.
6. Upon such acceptance and recording by the Administrative
Agent, from and after the Effective Date, the Administrative Agent shall make
all payments under the Credit Agreement and the Notes in respect of the interest
assigned hereby (including, without limitation, all payments of principal,
interest and fees with respect thereto) to such Assignee. Such Assignor and such
Assignee shall make all appropriate adjustments in payments under the Credit
Agreement and the Notes for periods prior to the Effective Date directly between
themselves.
7. This Assignment and Acceptance shall be governed by, and
construed in accordance with, the laws of the State of New York.
8. This Assignment and Acceptance may be executed in any
number of counterparts and by different parties hereto in separate counterparts,
each of which when so
C-2
94
executed shall be deemed to be an original and all of which taken together shall
constitute one and the same agreement. Delivery of an executed counterpart of
Schedule 1 to this Assignment and Acceptance by telecopier shall be effective as
delivery of an original executed counterpart of this Assignment and Acceptance.
IN WITNESS WHEREOF, each Assignor and each Assignee have
caused Schedule 1 to this Assignment and Acceptance to be executed by their
officers thereunto duly authorized as of the date specified thereon.
C-3
95
SCHEDULE 1
TO
ASSIGNMENT AND ACCEPTANCE
ASSIGNORS:
Percentage interest assigned % % % % %
Commitment assigned $ $ $ $ $
Outstanding principal amount of
Advance assigned $ $ $ $ $
Principal amount of Bridge/Rollover Note
payable to ASSIGNOR $ $ $ $ $
ASSIGNEES:
Percentage interest assumed % % % % %
Commitment assumed $ $ $ $ $
Outstanding principal amount of
Advance assumed $ $ $ $ $
Non-Call Advances:
Outstanding Principal Amount $ $ $ $ $
Last Day of current Interest Period with
respect thereto
Principal amount of Bridge/Rollover Note
payable to ASSIGNEE $ $ $ $ $
Certificates to the Bridge Credit Agreement
96
Effective Date (if other than date of acceptance by Administrative Agent):
(1)_________ __, ____
ASSIGNORS
, as Assignor
------------------------
[Type or print legal name of Assignor]
By
-------------------------------------
Title:
Dated: ,
---------- -- ----
, as Assignor
------------------------
[Type or print legal name of Assignor]
By
-------------------------------------
Title:
Dated: ,
---------- -- ----
, as Assignor
------------------------
[Type or print legal name of Assignor]
By
-------------------------------------
Title:
Dated: ,
---------- -- ----
, as Assignor
------------------------
[Type or print legal name of Assignor]
By
-------------------------------------
Title:
Dated: ,
---------- -- ----
----------
(1) This date should be no earlier than five Business Days after the
delivery of this Assignment and Acceptance to the Administrative Agent.
Certificates to the Bridge Credit Agreement
97
, as Assignor
------------------------
[Type or print legal name of Assignor]
By
-------------------------------------
Title:
Dated: ,
---------- -- ----
ASSIGNEES
, as Assignee
------------------------
[Type or print legal name of Assignee]
By
-------------------------------------
Title:
Dated: ,
---------- -- ----
Domestic Lending Office:
Eurodollar Lending Office:
, as Assignee
------------------------
[Type or print legal name of Assignee]
By
-------------------------------------
Title:
Dated: ,
---------- -- ----
Domestic Lending Office:
Eurodollar Lending Office:
Certificates to the Bridge Credit Agreement
98
, as Assignee
------------------------
[Type or print legal name of Assignee]
By
-------------------------------------
Title:
Dated: ,
---------- -- ----
Domestic Lending Office:
Eurodollar Lending Office:
, as Assignee
------------------------
[Type or print legal name of Assignee]
By
-------------------------------------
Title:
Dated: ,
---------- -- ----
Domestic Lending Office:
Eurodollar Lending Office:
, as Assignee
------------------------
[Type or print legal name of Assignee]
By
-------------------------------------
Title:
Dated: ,
---------- -- ----
Domestic Lending Office:
Eurodollar Lending Office:
Certificates to the Bridge Credit Agreement
99
Accepted (2)[and Approved] this ____
day of ___________, ____
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ SENIOR FUNDING, INC.,
as Administrative Agent
By
-------------------------------------
Title:
(3)[Approved this ____ day of ___________, ____
TIME WARNER TELECOM INC.,
as Borrower
By
-------------------------------------
Title:]
----------
(2) Required if the Assignee is an Eligible Assignee solely by reason of
clause (c) of the definition of "Eligible Assignee".
(3) Required if the Assignee is an Eligible Assignee solely by reason of
clause (c) of the definition of "Eligible Assignee" and if no Default
shall have occurred and be continuing as of the Effective Date.
Certificates to the Bridge Credit Agreement
100
EXHIBIT D
TO THE BRIDGE
CREDIT AGREEMENT
FORM OF
COMPLIANCE CERTIFICATE
This Compliance Certificate is delivered pursuant to Section
5.03(b)(ii) of the Bridge Credit Agreement, dated as of December 15, 2000 (as
amended, amended and restated, supplemented or otherwise modified from time to
time, (the "Bridge Credit Agreement"), among TIME WARNER TELECOM INC. (the
"Borrower"), the Lenders party thereto, and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ SENIOR FUNDING, INC.
("MSSF"), as Administrative Agent for the Lenders. Unless otherwise defined
herein, terms defined in the Bridge Credit Agreement and used herein shall have
the meanings given to them in the Bridge Credit Agreement.
1. I am the duly elected, qualified and acting [Chief
Financial Officer or Treasurer] of the Borrower.
2. I have reviewed and am familiar with the contents of this
Certificate.
3. I have reviewed the terms of the Bridge Credit Agreement
and the Bridge Documents and have made, or caused to be made under my
supervision, a review in reasonable detail of the transactions and condition of
the Borrower during the accounting period covered by the financial statements
attached hereto as Attachment 1 (the "Financial Statements"). Such review did
not disclose the existence during or at the end of the accounting period covered
by the Financial Statements, and I have no knowledge of the existence, as of the
date of this Certificate, of any condition or event which constitutes a Default
[, except as set forth below].
4. Attached hereto as Attachment 2 are the computations
showing compliance with the covenants set forth in Section 5.02(a), 5.02(b),
5.02(d), 5.02(e), 5.02(f), 5.02(g) and 5.04 of the Bridge Credit Agreement.
5. Attached hereto as Attachment 3 is a report as to the
status of availability of the exception to the indebtedness covenant contained
in the Existing High Yield Indenture permitting $300,000,000 of indebtedness
(including a statement as to the amount of the Advances outstanding under the
Bridge Credit Agreement that are permitted to be outstanding under the exception
contained in Section 4.03(a)(vii) of the Existing High Yield Indenture relating
to the acquisition of certain assets).
IN WITNESS WHEREOF, I have executed this Certificate this
_____ day of ____, 200__.
-------------------------------
Name:
Title:
Certificates to the Bridge Credit Agreement
101
Attachment 1
to Compliance Certificate
[Attach Financial Statements]
Certificates to the Bridge Credit Agreement
102
Attachment 2
to Compliance Certificate
The information described herein is as of ______, ____, and pertains to
the period from _________, ____ to ________________ __, ____.
[Set forth Covenant Calculations]
Certificates to the Bridge Credit Agreement
103
Attachment 3
to Compliance Certificate
[Set forth report re: availability under the Indenture]
Certificates to the Bridge Credit Agreement
104
EXHIBIT E
TO THE BRIDGE
CREDIT AGREEMENT
FORM OF EXEMPTION CERTIFICATE
Reference is made to the Bridge Credit Agreement dated as of
December 15, 2000 (as amended, amended and restated, supplemented or otherwise
modified from time to time, the "CREDIT AGREEMENT") among Time Warner Telecom
Inc., a Delaware corporation (the "BORROWER"), the Lenders party thereto, and
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Senior Funding, Inc. ("MSSF"), as Administrative Agent for the
Lenders. Unless otherwise defined herein, terms defined in the Credit Agreement
and used herein shall have the meanings given to them in the Credit Agreement.
______________________ (the "NON-U.S. LENDER") is providing this certificate
pursuant to Section 2.17(d) of the Credit Agreement. The Non-U.S. Lender hereby
represents and warrants that:
1. The Non-U.S. Lender is the sole record and beneficial owner
of the Advances in respect of which it is providing this certificate.
2. The Non-U.S. Lender is not a "bank" for purposes of Section
881(c)(3)(A) of the Internal Revenue Code of 1986, as amended (the "CODE"). In
this regard, the Non-U.S. Lender further represents and warrants that:
(a) the Non-U.S. Lender is not subject to regulatory or other
legal requirements as a bank in any jurisdiction; and
(b) the Non-U.S. Lender has not been treated as a bank for
purposes of any tax, securities law or other filing or submission made
to any Governmental Authority, any application made to a rating agency
or qualification for any exemption from tax, securities law or other
legal requirements.
3. The Non-U.S. Lender is not a 10-percent shareholder of the
Borrower within the meaning of Section 881(c)(3)(B) of the Code.
4. The Non-U.S. Lender is not a controlled foreign corporation
receiving interest from a related person within the meaning of Section
881(c)(3)(C) of the Code.
IN WITNESS WHEREOF, the undersigned has duly executed this
certificate.
[NAME OF NON-U.S. LENDER]
By:
--------------------------------
Name:
Title:
Date:
--------------------
Certificates to the Bridge Credit Agreement
105
EXHIBIT F
TO THE BRIDGE
CREDIT AGREEMENT
FORM OF
CLOSING CERTIFICATE
Pursuant to Section 3.01(a)(ii) of the Bridge Credit
Agreement, dated as of December 15, 2000 (the "Bridge Credit Agreement"; terms
defined therein being used herein as therein defined), among TIME WARNER TELECOM
INC. (the "Borrower"), the Lenders party thereto, and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ SENIOR
FUNDING, INC. ("MSSF"), as Administrative Agent for the Lenders, the undersigned
[INSERT TITLE OF OFFICER] of the Borrower hereby certifies as follows:
1. The representations and warranties of the Borrower set forth in each
of the Bridge Documents to which it is a party or which are contained in any
certificate furnished by or on behalf of the Borrower pursuant to any of the
Bridge Documents to which it is a party are true and correct on and as of the
date hereof with the same effect as if made on the date hereof.
2. ___________________ is the duly elected and qualified Corporate
Secretary of the Borrower and the signature set forth for such officer below is
such officer's true and genuine signature.
3. No Default has occurred and is continuing as of the date hereof or
after giving effect to the Advances to be made on the date hereof and the use of
proceeds thereof.
4. The conditions precedent set forth in Section 3.01 of the Bridge
Credit Agreement were satisfied as of the Effective Date.
The undersigned Secretary of the Borrower certifies as
follows:
5. There are no liquidation or dissolution proceedings pending or to my
knowledge threatened against the Borrower, nor has any other event occurred
adversely affecting or threatening the continued corporate existence of the
Borrower.
6. The representations and warranties contained in the Bridge Documents
are accurate as though made on and as of the date of the Initial Extension of
Credit.
7. The Borrower is a duly organized corporation, validly existing and
in good standing under the laws of the jurisdiction of its incorporation.
8. Attached hereto as Annex 1 is a true and complete copy of
resolutions approving the Bridge Documents duly adopted by the Board of
Directors of the Borrower on _________________; such resolutions have not in any
way been amended, modified, revoked or rescinded, have been in full force and
effect since their adoption to and including the date hereof and are now in full
force and effect and are the only corporate proceedings of the Borrower now in
force relating to or affecting the matters referred to therein.
Certificates to the Bridge Credit Agreement
106
9. Attached hereto as Annex 2 is a true and complete copy of the
By-Laws of the Borrower as in effect on the date hereof, on the date of the
Board Resolutions referred to in Paragraph 7 above were adopted and on the date
of the Initial Extension of Credit.
10. Attached hereto as Annex 3 is a true and complete copy of the
Certificate of Incorporation of the Borrower as in effect on the date hereof
certified by the Secretary of State of Delaware; there have been no amendments
thereto since the date of such certificate.
11. The making of the Advances and the borrowing under the Bank Credit
Facility on the date of the Initial Extension of Credit do not violate any
provision of the Existing High Yield Indenture.
12. Attached hereto as Annex 4 is a true and complete copy of each of
the Related Documents, duly executed by the parties thereto.
13. Attached hereto as Annex 5 is a true and complete copy of (A) the
Pro Forma Balance Sheet and (B) the financial statements referred to in Section
4.01(a)(ii) of the Bridge Credit Agreement.
14. The following persons are now duly elected and qualified officers
of the Borrower holding the offices indicated next to their respective names
below, and the signatures appearing opposite their respective names below are
the true and genuine signatures of such officers, and each of such officers is
duly authorized to execute and deliver on behalf of the Borrower each of the
Bridge Documents to which it is a party and any certificate or other document to
be delivered by the Borrower pursuant to the Bridge Documents to which it is a
party:
Name Office Signature
---- ------ ---------
IN WITNESS WHEREOF, the undersigned have hereunto set our
names as of the date set forth below.
------------------------------- -------------------------------
Name: Name:
Title: Title: Corporate Secretary
Date: , 200
---------- -- -
Certificates to the Bridge Credit Agreement
107
ANNEX 1
[Resolutions]
I-1
Certificates to the Bridge Credit Agreement
108
ANNEX 2
[By-Laws]
I-2
Certificates to the Bridge Credit Agreement
109
ANNEX 3
[Certificate of Incorporation]
I-3
110
EXHIBIT G
EXCHANGE COVENANTS AND RELATED DEFINITIONS
"ACQUIRED INDEBTEDNESS" means Indebtedness of a Person
existing at the time such Person becomes a Restricted Subsidiary or
assumed in connection with an Asset Acquisition by a Restricted
Subsidiary and not Incurred in connection with, or in anticipation of,
such Person becoming a Restricted Subsidiary or such Asset Acquisition;
provided that Indebtedness of such Person which is redeemed, defeased,
retired or otherwise repaid at the time of or immediately upon
consummation of the transactions by which such Person becomes a
Restricted Subsidiary or such Asset Acquisition shall not be Acquired
Indebtedness.
"ADJUSTED CONSOLIDATED NET INCOME" means, for any period, the
aggregate net income (or loss) of the Borrower and its Restricted
Subsidiaries for such period determined in conformity with GAAP;
provided that the following items shall be excluded in computing
Adjusted Consolidated Net Income (without duplication): (a) the net
income (or loss) of any Person that is not a Restricted Subsidiary,
except (i) with respect to net income, to the extent of the amount of
dividends or other distributions actually paid to the Borrower or any
of its Restricted Subsidiaries by such Person during such period and
(ii) with respect to net losses, to the extent of the amount of
Investments made by the Borrower or any of its Restricted Subsidiaries
in such Person during such period; (b) solely for the purposes of
calculating the amount of Restricted Payments that may be made pursuant
to clause (C) of the first paragraph of Section 5.02(f) (and in such
case, except to the extent includable pursuant to clause (a) above),
the net income (or loss) of any Person accrued prior to the date it
becomes a Restricted Subsidiary or is merged into or consolidated with
the Borrower or any of its Restricted Subsidiaries or all or
substantially all of the property and assets of such Person are
acquired by the Borrower or any of its Restricted Subsidiaries; (c) the
net income of any Restricted Subsidiary to the extent that the
declaration or payment of dividends or similar distributions by such
Restricted Subsidiary of such net income is not at the time permitted
by the operation of the terms of its charter or any agreement,
instrument, judgment, decree, order, statute, rule or governmental
regulation applicable to such Restricted Subsidiary; (d) any gains or
losses (on an after-tax basis) attributable to Asset Sales; (e) except
for purposes of calculating the amount of Restricted Payments that may
be made pursuant to clause (C) of the first paragraph of Section
5.02(f), any amount paid or accrued as dividends (other than dividends
to the extent paid or payable in shares of Capital Stock (other than
Disqualified Stock) of the Borrower) on Preferred Stock of the Borrower
or any of its Restricted Subsidiaries owned by Persons other than the
Borrower and any of its Restricted Subsidiaries; (f) all extraordinary
gains and extraordinary losses; and (g) any compensation expense paid
or payable solely with Capital Stock, (other than Disqualified Stock)
of the Borrower or any options, warrants or other rights to acquire
Capital Stock (other than Disqualified Stock).
"ADJUSTED CONSOLIDATED NET TANGIBLE ASSETS" means the total
amount of assets of the Borrower and its Restricted Subsidiaries (less
applicable depreciation, amortization and other valuation reserves),
except to the extent resulting from write-ups of capital assets
(excluding write-ups in connection with accounting for acquisitions in
conformity with GAAP), after deducting therefrom (a) all current
liabilities of the Borrower and its Restricted Subsidiaries (excluding
intercompany
111
items) and (b) all goodwill, trade names, trademarks, patents,
unamortized debt discount and expense and other like intangibles, all
as set forth on the most recent quarterly or annual consolidated
balance sheet of the Company and its Restricted Subsidiaries, prepared
in conformity with GAAP and filed with the Commission or provided to
the Administrative Agent pursuant to Section 5.03.
"ADJUSTED NET CASH PROCEEDS" has the meaning provided in
Section 5.02(e).
"AFFILIATE" means, as applied to any Person, any other Person
directly or indirectly controlling, controlled by, or under direct or
indirect common control with, such Person. For purposes of this
definition, the term "control" (including with correlative meanings,
the terms "controlling", "controlled by" and "under common control
with") as applied to any Person means the possession, directly or
indirectly, of the power to direct or cause the direction of the
management and policies of such Person, whether through the ownership
of voting securities, by contract or otherwise.
"ANNUALIZED CONSOLIDATED EBITDA" means for any fiscal quarter,
an amount equal to Bank Consolidated EBITDA for such period multiplied
by four.
"ASSET ACQUISITION" means (a) an investment by the Borrower or
any of its Restricted Subsidiaries in any other Person pursuant to
which such Person shall become a Restricted Subsidiary or shall be
merged into or consolidated with the Borrower or any of its Restricted
Subsidiaries; provided that such Person's primary business is related,
ancillary or complementary to the businesses of the Borrower and its
Restricted Subsidiaries on the date of such investment or (b) an
acquisition by the Borrower or any of its Restricted Subsidiaries of
the property and assets of any Person other than the Borrower or any of
its Restricted Subsidiaries that constitute substantially all of a
division or line of business of such Person; provided that the property
and assets acquired are related, ancillary or complementary to the
businesses of the Borrower and its Restricted Subsidiaries on the date
of such acquisition.
"ASSET DISPOSITION" means the sale or other disposition by the
Borrower or any of its Restricted Subsidiaries (other than to the
Borrower or another Restricted Subsidiary) of (a) all or substantially
all of the Capital Stock of any Restricted Subsidiary or (b) all or
substantially all of the assets that constitute a division or line of
business of the Borrower or any of its Restricted Subsidiaries.
"ASSET SALE" means any sale, transfer or other disposition
(including by way of merger, consolidation or sale-leaseback
transaction) in one transaction or a series of related transactions by
the Borrower or any of its Restricted Subsidiaries to any Person other
than the Borrower or any of its Restricted Subsidiaries of (a) all or
any of the Capital Stock of any Restricted Subsidiary, (b) all or
substantially all of the property and assets of an operating unit or
business of the Borrower or any of its Restricted Subsidiaries or (c)
any other property and assets of the Borrower or any of its Restricted
Subsidiaries outside the ordinary course of business of the Borrower or
such Restricted Subsidiary and, in each case, that is not governed by
the provisions of this Agreement applicable to mergers, consolidations
and sales of all or substantially all of the assets of the Borrower;
provided that "Asset Sale" shall not include (i) sales or other
dispositions of inventory, receivables and other current assets, (ii)
sales, transfers or other dispositions of assets constituting a
Restricted Payment permitted to be made under Section 5.02(f), (iii)
sales, transfers or other dispositions of assets with
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a fair market value (as certified in an Officers' Certificate) not in
excess of $5 million in any transaction or series of related
transactions, or (iv) sales or other dispositions of assets for
consideration at least equal to the fair market value of the assets
sold or disposed of, to the extent that the consideration received
would constitute property, assets or securities of the kind described
in clause (B) of Section 5.02(e).
"AVERAGE LIFE" means, at any date of determination with
respect to any debt security, the quotient obtained by dividing (a) the
sum of the products of (i) the number of years from such date of
determination to the dates of each successive scheduled principal
payment of such debt security and (ii) the amount of such principal
payment by (b) the sum of all such principal payments.
"BANK CAPITAL LEASE OBLIGATIONS" means as to any Person, the
obligations of such Person to pay rent or other amounts under any lease
of (or other arrangement conveying the right to use) real or personal
property, or a combination thereof, which obligations are required to
be classified and accounted for as capital leases on a balance sheet of
such Person under GAAP and, for the purposes of this Agreement, the
amount of such obligations at any time shall be the capitalized amount
thereof at such time determined in accordance with GAAP.
"BANK CONSOLIDATED EBITDA" means for any period, Consolidated
Net Income for such period plus, without duplication and to the extent
reflected as a charge in the statement of such Consolidated Net Income
for such period, the sum of (a) income tax expense, (b) interest
expense, amortization or writeoff of debt discount and debt issuance
costs and commissions, discounts and other fees and charges associated
with Indebtedness (including the Advances), (c) depreciation and
amortization expense, (d) amortization of intangibles (including, but
not limited to, goodwill) and organization costs, and (e) any
extraordinary, unusual or non-recurring non-cash expenses or losses
(including, whether or not otherwise includable as a separate item in
the statement of such Consolidated Net Income for such period, non-cash
losses on sales of assets outside of the ordinary course of business),
provided, that the amounts referred to in this clause (e) shall not, in
the aggregate, exceed $20,000,000 for any fiscal year of the Borrower,
or, in the case of such non-cash losses on sales of the Acquired Assets
or any non-cash losses on minority investments or investments in
unconsolidated Subsidiaries, $30,000,000 and minus, to the extent
included in the statement of such Consolidated Net Income for such
period, the sum of (i) interest income and (ii) any extraordinary,
unusual or non-recurring income or gains (other than any reciprocal
compensation income or gains to the extent included in operating
income), including, whether or not otherwise includable as a separate
item in the statement of such Consolidated Net Income for such period,
gains on the sales of assets outside of the ordinary course of
business.
"BANK CONSOLIDATED LEVERAGE RATIO" means as of any day, the
ratio of (a) Consolidated Net Total Debt on such day to (b) Annualized
Consolidated EBITDA for the most recent complete fiscal quarter of the
Borrower.
"BANK INDEBTEDNESS" means of any Person at any date, without
duplication, (a) all indebtedness of such Person for borrowed money,
(b) all obligations of such Person for the deferred purchase price of
property or services (other than current trade payables incurred in the
ordinary course of such Person's business), (c) all obligations of such
Person evidenced by notes, bonds, debentures or other similar
instruments, (d)
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113
all indebtedness created or arising under any conditional sale or other
title retention agreement with respect to property acquired by such
Person (even though the rights and remedies of the seller or lender
under such agreement in the event of default are limited to
repossession or sale of such property), (e) all Bank Capital Lease
Obligations of such Person, (f) all obligations of such Person,
contingent or otherwise, as an account party or applicant under or in
respect of acceptances, letters of credit, surety bonds or similar
arrangements, (g) all Cash Pay Preferred Stock, (h) all Guarantee
Obligations of such Person in respect of obligations of the kind
referred to in clauses (a) through (g) above, (i) all obligations of
the kind referred to in clauses (a) through (h) above secured by (or
for which the holder of such obligation has an existing right,
contingent or otherwise, to be secured by) any Bank Lien on property
(including accounts and contract rights) owned by such Person, whether
or not such Person has assumed or become liable for the payment of such
obligation, and (j) for the purposes of Sections 5.02(b) and 6.01(e)
only, all obligations of such Person in respect of derivative
transactions (including, without limitation, Hedge Agreements). For
purposes of this definition, the principal amount of any Cash Pay
Preferred Stock shall be deemed to be its liquidation value. The Bank
Indebtedness of any Person shall include the Bank Indebtedness of any
other entity (including any partnership in which such Person is a
general partner) to the extent such Person is liable therefor as a
result of such Person's ownership interest in or other relationship
with such entity, except to the extent the terms of such Indebtedness
expressly provide that such Person is not liable therefor.
"BANK LIEN" means any mortgage, pledge, hypothecation,
assignment, deposit arrangement, encumbrance, lien (statutory or
other), charge or other security interest or any preference, priority
or other security agreement or preferential arrangement of any kind or
nature whatsoever (including any conditional sale or other title
retention agreement and any capital lease having substantially the same
economic effect as any of the foregoing).
"CAPITAL STOCK" means, with respect to any Person, any and all
shares, interests, participations or other equivalents (however
designated, whether voting or non-voting) in equity of such Person,
whether outstanding on the Effective Date or issued thereafter,
including, without limitation, all Common Stock and Preferred Stock.
"CAPITALIZED LEASES" means, as applied to any Person, any
lease of any property (whether real, personal or mixed) of which the
discounted present value of the rental obligations of such Person as
lessee, in conformity with GAAP, is required to be capitalized on the
balance sheet of such Person.
"CAPITALIZED LEASE OBLIGATIONS" means the discounted present
value of the rental obligations under a Capitalized Lease.
"CHANGE OF CONTROL" means such time as (a) the Permitted
Investors as a group cease to have the ability to elect a majority of
the members of the Board of Directors (other than the chief executive
officer of the Borrower and independent directors; provided that
independent directors shall be included in calculating whether the
foregoing majority requirement is satisfied if the Directors nominated
by the Permitted Investors do not constitute a majority of the
committee that selects the Board of Directors' nominees for independent
directors) and a "person" or "group"
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(within the meaning of Sections 13(d) and 14(d)(2) of the Exchange Act)
(other than the Permitted Investors) has become the ultimate
"beneficial owner" (as defined in Rule 13d-3 under the Exchange Act) of
more than 35% of the total voting power of the Voting Stock of the
Borrower on a fully diluted basis and such ownership represents a
greater percentage of the total voting power of the Voting Stock of the
Borrower, on a fully diluted basis, than is held by the Permitted
Investors as a group on such date; or (b) individuals who on the
Effective Date constitute the Board of Directors (together with any new
Directors whose election by the Board of Directors or whose nomination
by the Board of Directors for election by the Borrower's stockholders
or members, as the case may be, was approved by a vote of at least
two-thirds of the members of the Board of Directors then in office who
either were members of the Board of Directors on the Effective Date or
whose election or nomination for election was previously so approved)
cease for any reason to constitute a majority of the members of the
Board of Directors then in office.
"COMMON STOCK" means, with respect to any Person, such
Person's equity other than Preferred Stock of such Person, whether
outstanding on the Effective Date or issued thereafter, including,
without limitation, all series and classes of such common stock,
including any and all shares, interests, participations or other
equivalents (however designated, whether voting or non-voting) thereof.
"CONSOLIDATED EBITDA" means, for any period, Adjusted
Consolidated Net Income for such period (a) plus, to the extent such
amount was deducted in calculating such Adjusted Consolidated Net
Income, (i) Consolidated Interest Expense, (ii) income taxes (other
than income taxes (either positive or negative) attributable to
extraordinary and non-recurring gains or losses or sales of assets),
(iii) depreciation expense, (iv) amortization expense and (v) all other
non-cash items reducing Adjusted Consolidated Net Income (other than
items that will require cash payments and for which an accrual or
reserve is, or is required by GAAP to be, made), less all non-cash
items increasing Adjusted Consolidated Net Income, all as determined on
a consolidated basis for the Borrower and its Restricted Subsidiaries
in conformity with GAAP, and (b) solely for purposes of calculating the
amount of Restricted Payments that may be made pursuant to clause (C)
of the first paragraph of Section 5.02 (f), less (to the extent not
otherwise reduced in accordance with GAAP) the aggregate amount of
deposits made by the Borrower and its Restricted Subsidiaries after the
Existing High Yield Closing Date in connection with proposed Asset
Acquisitions that are forfeited by the Borrower or any of its
Restricted Subsidiaries; provided that, if any Restricted Subsidiary is
not a Wholly Owned Restricted Subsidiary, Consolidated EBITDA shall be
reduced (to the extent not otherwise reduced in accordance with GAAP)
by an amount equal to (A) the amount of the Adjusted Consolidated Net
Income attributable to such Restricted Subsidiary multiplied by (B) the
percentage ownership interest in the income of such Restricted
Subsidiary not owned on the last day of such period by the Borrower or
any of its Restricted Subsidiaries.
"CONSOLIDATED INTEREST EXPENSE" means, for any period, the
aggregate amount of interest in respect of Indebtedness (including,
without limitation, amortization of original issue discount on any
Indebtedness and the interest portion of any deferred payment
obligation, calculated in accordance with the effective interest method
of accounting; all commissions, discounts and other fees and charges
owed with respect
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115
to letters of credit and bankers' acceptance financing; the net costs
associated with Interest Rate Agreements; and interest on Indebtedness
that is Guaranteed or secured by the Borrower or any of its Restricted
Subsidiaries) and all but the principal component of rentals in respect
of Capitalized Lease Obligations, in each case that is paid, accrued or
scheduled to be paid or to be accrued by the Borrower and its
Restricted Subsidiaries during such period; excluding, however, (a) in
calculating Consolidated EBITDA, any amount of such interest of any
Restricted Subsidiary if the net income of such Restricted Subsidiary
is excluded in the calculation of Adjusted Consolidated Net Income
pursuant to clause (c) of the definition thereof (but only in the same
proportion as the net income of such Restricted Subsidiary is excluded
from the calculation of Adjusted Consolidated Net Income pursuant to
clause (c) of the definition thereof) and (b) any premiums, fees and
expenses (and any amortization thereof) payable in connection with the
offering of the Existing High Yield Notes, the Notes and the Exchange
Securities all as determined on a consolidated basis (without taking
into account Unrestricted Subsidiaries) in conformity with GAAP.
"CONSOLIDATED LEVERAGE RATIO" means, on any Transaction Date,
the ratio of (a) the aggregate amount of Indebtedness of the Borrower
and its Restricted Subsidiaries on a consolidated basis outstanding on
such Transaction Date to (b) the aggregate amount of Consolidated
EBITDA for the then most recent four fiscal quarters for which
financial statements of the Borrower have been filed with the
Securities and Exchange Commission or provided to the Administrative
Agent pursuant to Section 5.03 (such four fiscal quarter period being
the "FOUR QUARTER PERIOD"); provided that, in making the foregoing
calculation, (i) pro forma effect shall be given to any Indebtedness to
be Incurred or repaid on the Transaction Date; (ii) pro forma effect
shall be given to Asset Dispositions and Asset Acquisitions (including
giving pro forma effect to the application of proceeds of any Asset
Disposition) that occur from the beginning of the Four Quarter Period
through the Transaction Date (the "REFERENCE PERIOD"), as if they had
occurred and such proceeds had been applied on the first day of such
Reference Period; and (iii) pro forma effect shall be given to asset
dispositions and asset acquisitions (including giving pro forma effect
to the application of proceeds of any asset disposition) that have been
made by any Person that has become a Restricted Subsidiary or has been
merged with or into the Borrower or any Restricted Subsidiary during
such Reference Period and that would have constituted Asset
Dispositions or Asset Acquisitions had such transactions occurred when
such Person was a Restricted Subsidiary as if such asset dispositions
or asset acquisitions were Asset Dispositions or Asset Acquisitions
that occurred on the first day of such Reference Period; provided that
to the extent that clause (ii) or (iii) of this sentence requires that
pro forma effect be given to an Asset Acquisition or Asset Disposition,
such pro forma calculation shall be based upon the four full fiscal
quarters immediately preceding the Transaction Date of the Person, or
division or line of business of the Person, that is acquired or
disposed of for which financial information is available.
"CONSOLIDATED NET WORTH" means, at any date of determination,
stockholders' equity as set forth on the most recently available
quarterly or annual consolidated balance sheet of the Borrower and its
Restricted Subsidiaries (which shall be as of a date not more than 90
days prior to the date of such computation, and which shall not take
into account Unrestricted Subsidiaries), less any amounts attributable
to
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Disqualified Stock or any equity security convertible into or
exchangeable for Indebtedness, the cost of treasury stock and the
principal amount of any promissory notes receivable from the sale of
the Capital Stock of the Borrower or any of its Restricted
Subsidiaries, each item to be determined in conformity with GAAP
(excluding the effects of foreign currency exchange adjustments under
Financial Accounting Standards Board Statement of Financial Accounting
Standards No. 52).
"CONSOLIDATED TOTAL DEBT" means at any date, the aggregate
principal amount of all Bank Indebtedness (other than, in the case of
contingent obligations of the type described in clause (f) of the
definition of "Bank Indebtedness", any such obligations not
constituting L/C Obligations (as defined in the Bank Credit Facility))
of the Borrower and its Subsidiaries at such date, determined on a
consolidated basis in accordance with GAAP.
"CREDIT AGREEMENT" means credit agreements, vendor financings
or similar facilities or arrangements made available from time to time
to the Borrower and its Restricted Subsidiaries from banks, other
financial institutions and/or equipment manufacturers for the
Incurrence of Indebtedness, including letters of credit and any related
notes, guarantees, collateral documents, instruments and agreements
executed in connection therewith, as amended, supplemented, modified or
restated from time to time.
"CURRENCY AGREEMENT" means any foreign exchange contract,
currency swap agreement or other similar agreement or arrangement.
"DISQUALIFIED STOCK" means any class or series of Capital
Stock of any Person that by its terms or otherwise is (a) required to
be redeemed prior to the Stated Maturity of the Advances, the Notes, if
any, and, if issued, the Exchange Securities, (b) redeemable at the
option of the holder of such class or series of Capital Stock at any
time prior to the Stated Maturity of the Advances, the Notes, if any,
and, if issued, the Exchange Securities or (c) convertible into or
exchangeable for Capital Stock referred to in clause (a) or (b) above
or Indebtedness having a scheduled maturity prior to the Stated
Maturity of the Advances, the Notes, if any, and, if issued, the
Exchange Securities; provided that any Capital Stock that would not
constitute Disqualified Stock but for provisions thereof giving holders
thereof the right to require such Person to repurchase or redeem such
Capital Stock upon the occurrence of an "asset sale" or "change of
control" occurring prior to the Stated Maturity of the Advances, the
Notes, if any, and, if issued, the Exchange Securities shall not
constitute Disqualified Stock if the "asset sale" or "change of
control" provisions applicable to such Capital Stock are no more
favorable to the holders of such Capital Stock than the provisions
contained in Section 5.02(e), Section 2.05(b)(ii), Section 2.05(b)(iv)
and Section 2.05(b)(v) and such Capital Stock or the agreements or
instruments governing the redemption rights thereof specifically
provides that such Person will not repurchase or redeem any such stock
pursuant to such provision prior to the Borrower's prepayment of the
Advances, the Notes, if any, and, if issued, the Exchange Securities as
are required to be prepaid pursuant to Section 2.05(b)(ii), Section
2.05(b)(iv), Section 2.05(b)(v) or Section 5.02(e).
"EXISTING HIGH YIELD CLOSING DATE" means the date on which the
Existing High Yield Notes were originally issued under the Existing
High Yield Indenture.
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"FAIR MARKET VALUE" means the price that would be paid in an
arm's-length transaction between an informed and willing seller under
no compulsion to sell and an informed and willing buyer under no
compulsion to buy, as determined in good faith by the Board of
Directors, whose determination shall be conclusive if evidenced by a
Board Resolution; provided that for purposes of clause (viii) of the
second paragraph of Section 5.02(b), (x) the fair market value of any
security registered under the Exchange Act shall be the average of the
closing prices, regular way, of such security for the 20 consecutive
trading days immediately preceding the sale of Capital Stock and (y) in
the event the aggregate fair market value of any other property (other
than cash or cash equivalents) received by the Borrower exceeds $15
million, the fair market value of such property shall be determined by
a nationally recognized investment banking firm and set forth in their
written opinion which shall be delivered to the Administrative Agent.
"GAAP" means generally accepted accounting principles in the
United States of America as in effect as of the Existing High Yield
Closing Date, including, without limitation, those set forth in the
opinions and pronouncements of the Accounting Principles Board of the
American Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board or in such
other statements by such other entity as approved by a significant
segment of the accounting profession. All ratios and computations
contained or referred to in this Agreement shall be computed in
conformity with GAAP applied on a consistent basis, except that
calculations made for purposes of determining compliance with the terms
of the covenants and with other provisions of this Agreement shall be
made without giving effect to (a) the amortization of any expenses
incurred in connection with the offering of the Existing High Yield
Notes, the Notes and the Exchange Securities and (b) except as
otherwise provided, the amortization of any amounts required or
permitted by Accounting Principles Board Opinion Nos. 16 and 17.
"GUARANTEE" means any obligation, contingent or otherwise, of
any Person directly or indirectly guaranteeing any Indebtedness of any
other Person and, without limiting the generality of the foregoing, any
obligation, direct or indirect, contingent or otherwise, of such Person
(a) to purchase or pay (or advance or supply funds for the purchase or
payment of) such Indebtedness of such other Person (whether arising by
virtue of partnership arrangements, or by agreements to keep-well, to
purchase assets, goods, securities or services (unless such purchase
arrangements are on arm's-length terms and are entered into in the
ordinary course of business), to take-or-pay, or to maintain financial
statement conditions or otherwise) or (b) entered into for purposes of
assuring in any other manner the obligee of such Indebtedness of the
payment thereof or to protect such obligee against loss in respect
thereof (in whole or in part); provided 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.
"INCUR" means, 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, including an "Incurrence" of Acquired
Indebtedness; provided that neither the accrual of interest nor the
accretion of original issue discount shall be considered an Incurrence
of Indebtedness.
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"INDEBTEDNESS" means, with respect to any Person at any date
of determination (without duplication), (a) all indebtedness of such
Person for borrowed money, (b) all obligations of such Person evidenced
by bonds, debentures, notes or other similar instruments, (c) all
obligations of such Person in respect of letters of credit or other
similar instruments (including reimbursement obligations with respect
thereto, but excluding obligations with respect to letters of credit
(including trade letters of credit) securing obligations (other than
obligations described in (a) or (b) above or (e), (f) or (g) below)
entered into in the ordinary course of business of such Person to the
extent such letters of credit are not drawn upon or, if drawn upon, to
the extent such drawing is reimbursed no later than the third Business
Day following receipt by such Person of a demand for reimbursement),
(d) all obligations of such Person to pay the deferred and unpaid
purchase price of property or services, which purchase price is due
more than six months after the date of placing such property in service
or taking delivery and title thereto or the completion of such
services, except Trade Payables, (e) all Capitalized Lease Obligations
of such Person, (f) all Indebtedness of other Persons secured by a Lien
on any asset of such Person, whether or not such Indebtedness is
assumed by such Person; provided that the amount of such Indebtedness
shall be the lesser of (A) the fair market value of such asset at such
date of determination and (B) the amount of such Indebtedness, (g) all
Indebtedness of other Persons Guaranteed by such Person to the extent
such Indebtedness is Guaranteed by such Person and (h) to the extent
not otherwise included in this definition, obligations under Currency
Agreements and Interest Rate Agreements. The amount of Indebtedness of
any Person at any date shall be the outstanding balance at such date of
all unconditional obligations as described above and, with respect to
contingent obligations, the maximum liability upon the occurrence of
the contingency giving rise to the obligation, provided (i) that the
amount outstanding at any time of any Indebtedness issued with original
issue discount is the face amount of such Indebtedness less the
remaining unamortized portion of the original issue discount of such
Indebtedness at the time of its issuance as determined in conformity
with GAAP, (ii) that money borrowed and set aside at the time of the
Incurrence of any Indebtedness in order to prefund the payment of the
interest on such Indebtedness shall not be deemed to be "Indebtedness"
so long as such money is held to secure the payment of such interest
and (iii) that Indebtedness shall not include any liability for
federal, state, local or other taxes.
"INTEREST RATE AGREEMENT" means any interest rate protection
agreement, interest rate future agreement, interest rate option
agreement, interest rate swap agreement, interest rate cap agreement,
interest rate collar agreement, interest rate hedge agreement, option
or future contract or other similar agreement or arrangement.
"INVESTMENT" in any Person means any direct or indirect
advance, loan or other extension of credit (including, without
limitation, by way of Guarantee or similar arrangement; but excluding
advances to customers in the ordinary course of business that are, in
conformity with GAAP, recorded as accounts receivable on the balance
sheet of the Borrower or its Restricted Subsidiaries) or capital
contribution to (by means of any transfer of cash or other property to
others or any payment for property or services for the account or use
of others), or any purchase or acquisition of Capital Stock, bonds,
notes, debentures or other similar instruments issued by, such Person
and shall include (i) the designation of a Restricted Subsidiary as an
Unrestricted Subsidiary and (ii) the fair market value of the Capital
Stock (or any other
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Investment) held by the Borrower or any of its Restricted Subsidiaries,
of (or in) any Person that has ceased to be a Restricted Subsidiary,
including without limitation, by reason of any transaction permitted by
clause (iii) of Section 5.02(k); provided that the fair market value of
the Investment remaining in any Person that has ceased to be a
Restricted Subsidiary shall not exceed the aggregate amount of
Investments previously made in such Person valued at the time such
Investments were made less the net reduction of such Investments. For
purposes of the definition of "Unrestricted Subsidiary" and Section
5.02(f), (i) "Investment" shall include the fair market value of the
assets (net of liabilities (other than liabilities to the Borrower or
any of its Restricted Subsidiaries)) of any Restricted Subsidiary at
the time that such Restricted Subsidiary is designated an Unrestricted
Subsidiary, (ii) the fair market value of the assets (net of
liabilities (other than liabilities to the Borrower or any of its
Restricted Subsidiaries)) of any Unrestricted Subsidiary at the time
that such Unrestricted Subsidiary is designated a Restricted Subsidiary
shall be considered a reduction in outstanding Investments and (iii)
any property transferred to or from an Unrestricted Subsidiary shall be
valued at its fair market value at the time of such transfer.
"LIEN" means any mortgage, pledge, security interest,
encumbrance, lien or charge of any kind, (including, without
limitation, any conditional sale or other title retention agreement or
lease in the nature thereof) or any agreement to give any security
interest.
"NET CASH PROCEEDS" means, (a) with respect to any Asset Sale,
the proceeds of such Asset Sale in the form of cash or cash
equivalents, including payments in respect of deferred payment
obligations (to the extent corresponding to the principal, but not
interest, component thereof) when received in the form of cash or cash
equivalents (except to the extent such obligations are financed or sold
with recourse to the Borrower or any Restricted Subsidiary) and
proceeds from the conversion of other property received when converted
to cash or cash equivalents, net of (i) brokerage commissions and other
fees and expenses (including fees and expenses of counsel and
investment bankers) related to such Asset Sale, (ii) provisions for all
taxes (whether or not such taxes will actually be paid or are payable)
as a result of such Asset Sale without regard to the consolidated
results of operations of the Borrower and its Restricted Subsidiaries,
taken as a whole, (iii) payments made to repay Indebtedness or any
other obligation outstanding at the time of such Asset Sale that either
(A) is secured by a Lien on the property or assets sold or (B) is
required to be paid as a result of such sale and (iv) appropriate
amounts to be provided by the Borrower or any Restricted Subsidiary as
a reserve against any liabilities associated with such Asset Sale,
including, without limitation, pension and other post-employment
benefit liabilities, liabilities related to environmental matters and
liabilities under any indemnification obligations associated with such
Asset Sale, all as determined in conformity with GAAP and (b) with
respect to any issuance or sale of Capital Stock, the proceeds of such
issuance or sale in the form of cash or cash equivalents, including
payments in respect of deferred payment obligations (to the extent
corresponding to the principal, but not interest, component thereof)
when received in the form of cash or cash equivalents (except to the
extent such obligations are financed or sold with recourse to the
Borrower or any Restricted Subsidiary) and proceeds from the conversion
of other property received when converted to cash or cash equivalents,
net of attorney's fees, accountants' fees, underwriters' or placement
agents' fees, discounts or commissions and brokerage, consultant and
other fees
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incurred in connection with such issuance or sale and net of taxes paid
or payable as a result thereof.
"PERMITTED INVESTMENT" means:
(a) an Investment in the Borrower or a Restricted
Subsidiary or a Person which will, upon the making of such
Investment, become a Restricted Subsidiary or be merged or
consolidated with or into, or transfer or convey all or
substantially all its assets to, the Borrower or a Restricted
Subsidiary; provided that such Person's primary business is
related, ancillary or complementary to the businesses of the
Borrower and its Restricted Subsidiaries on the date of such
Investment;
(b) Temporary Cash Investments;
(c) payroll, travel and similar advances to cover
matters that are expected at the time of such advances
ultimately to be treated as expenses in accordance with GAAP;
(d) stock, obligations or securities received in
settlement of Indebtedness Incurred in the ordinary course of
business, upon foreclosure of a Lien created in the ordinary
course of business or in satisfaction of judgments, including
in connection with a bankruptcy proceeding;
(e) Investments in prepaid expenses, negotiable
instruments held for collection and lease, utility and
worker's compensation, performance and other similar deposits;
(f) Interest Rate Agreements and Currency Agreements
designed solely to protect the Borrower or its Restricted
Subsidiaries against fluctuations in interest rates or foreign
currency exchange rates;
(g) loans or advances to officers or employees of the
Borrower or any Restricted Subsidiary that do not in the
aggregate exceed $2 million at any time outstanding; and
(h) Investments in any Person that is engaged in the
telecommunications business and that is not an Affiliate or a
Related Person of the Borrower.
"PERMITTED LIENS" means:
(a) Liens for taxes, assessments, governmental
charges or claims that are being contested in good faith by
appropriate legal proceedings promptly instituted and
diligently conducted and for which a reserve or other
appropriate provision, if any, as shall be required in
conformity with GAAP shall have been made;
(b) statutory and common law Liens of landlords and
carriers, warehousemen, mechanics, suppliers, materialmen,
repairmen or other similar Liens arising in the ordinary
course of business and with respect to amounts not yet
delinquent or being contested in good faith by appropriate
legal
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proceedings promptly instituted and diligently conducted and
for which a reserve or other appropriate provision, if any, as
shall be required in conformity with GAAP shall have been
made;
(c) Liens incurred or deposits made in the ordinary
course of business in connection with workers' compensation,
unemployment insurance and other types of social security;
(d) Liens incurred or deposits made to secure the
performance of tenders, bids, leases, statutory or regulatory
obligations, bankers' acceptances, surety and appeal bonds,
government contracts, performance and return-of-money bonds
and other obligations of a similar nature incurred in the
ordinary course of business (exclusive of obligations for the
payment of borrowed money);
(e) easements, rights-of-way, municipal and zoning
ordinances and similar charges, encumbrances, title defects or
other irregularities that do not materially interfere with the
ordinary course of business of the Borrower or any of its
Restricted Subsidiaries;
(f) Liens (including extensions and renewals thereof)
upon real or personal property acquired after the Existing
High Yield Closing Date; provided that (i) such Lien is, or
was created solely for the purpose of securing Indebtedness
Incurred, in accordance with Section 5.02(b), to finance the
cost (including the cost of design, development, acquisition,
construction, installation, improvement, transportation or
integration and all transaction costs related to the
foregoing) of the item of property or assets subject thereto
and such Lien is created prior to, at the time of or within
six months after the latest of the acquisition, the completion
of construction or the commencement of full operation of such
property, (ii) the principal amount of the Indebtedness
secured by such Lien does not exceed 100% of such cost and
(iii) any such Lien shall not extend to or cover any property
or assets other than such item of property or assets and any
improvements on such item;
(g) leases or subleases granted to others that do not
materially interfere with the ordinary course of business of
the Borrower and its Restricted Subsidiaries, taken as a
whole;
(h) Liens encumbering property or assets under
construction arising from progress or partial payments by a
customer of the Borrower or its Restricted Subsidiaries
relating to such property or assets;
(i) any interest or title of a lessor in the property
subject to any Capitalized Lease or operating lease;
(j) Liens arising from filing Uniform Commercial Code
financing statements regarding leases;
(k) Liens on property of, or on shares of Capital
Stock or Indebtedness of, any Person existing at the time such
Person becomes, or becomes a part of, any Restricted
Subsidiary; provided that such Liens do not
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extend to or cover any property or assets of the Borrower or
any Restricted Subsidiary other than the property or assets
acquired;
(l) Liens in favor of the Borrower or any Restricted
Subsidiary;
(m) Liens arising from the rendering of a final
judgment or order against the Borrower or any Restricted
Subsidiary that does not give rise to an Event of Default;
(n) Liens securing reimbursement obligations with
respect to letters of credit that encumber documents and other
property relating to such letters of credit and the products
and proceeds thereof;
(o) Liens in favor of customs and revenue authorities
arising as a matter of law to secure payment of customs duties
in connection with the importation of goods;
(p) Liens encumbering customary initial deposits and
margin deposits, and other Liens that are within the general
parameters customary in the industry and incurred in the
ordinary course of business, in each case, securing
Indebtedness under Interest Rate Agreements and Currency
Agreements and forward contracts, options, future contracts,
futures options or similar agreements or arrangements designed
solely to protect the Borrower or any of its Restricted
Subsidiaries from fluctuations in interest rates, currencies
or the price of commodities;
(q) Liens arising out of conditional sale, title
retention, consignment or similar arrangements for the sale of
goods entered into by the Borrower or any of its Restricted
Subsidiaries in the ordinary course of business in accordance
with the past practices of the Borrower and its Restricted
Subsidiaries prior to the Existing High Yield Closing Date;
(r) Liens on or sales of receivables; and
(s) Liens that secure Indebtedness with an aggregate
principal amount not in excess of $5 million at any time
outstanding.
"PERSON" means an individual, a corporation, a partnership, a
limited liability company, an association, a trust or any other entity
or organization, including a government or political subdivision or an
agency or instrumentality thereof.
"PREFERRED STOCK" means, with respect to any Person, Capital
Stock issued by such Person that are entitled to a preference or
priority over one or more series or classes of other Capital Stock
issued by such Person upon any distribution of such Person's property
and assets, whether by dividend or upon liquidation.
"RELATED PERSON" means, as applied to any Person, any other
Person directly or indirectly owning (a) 10% or more of the outstanding
Common Stock of such Person (or, in the case of a Person that is not a
corporation, 10% or more of the outstanding equity interest in such
Person) or (b) 10% or more of the combined
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outstanding voting power of the Voting Stock of such Person, and all
Affiliates of any such other Person.
"RESTRICTED PAYMENTS" has the meaning provided in Section
5.02(f).
"RESTRICTED SUBSIDIARY" means any Subsidiary of the Borrower
other than an Unrestricted Subsidiary.
"STATED MATURITY" means (a) with respect to any debt security,
the date specified in such debt security as the fixed date on which the
final installment of principal of such debt security is due and payable
and (b) with respect to any scheduled installment of principal of or
interest on any debt security, the date specified in such debt security
as the fixed date on which such installment is due and payable.
"STRATEGIC SUBORDINATED INDEBTEDNESS" means Indebtedness of
the Borrower Incurred to finance the acquisition of a Person engaged in
a business that is related, ancillary or complementary to the business
conducted by the Borrower or any of its Restricted Subsidiaries, which
Indebtedness by its terms, or by the terms of any agreement or
instrument pursuant to which such Indebtedness is Incurred, (a) is
expressly made subordinate in right of payment to the Advances and the
Exchange Securities and () provides that no payment of principal,
premium or interest on, or any other payment with respect to, such
Indebtedness may be made prior to the payment in full of all of the
Borrower's obligations under this Agreement and the Exchange Indenture;
provided that such Indebtedness may provide for and be repaid at any
time from the proceeds of the sale of Capital Stock of the Borrower
(other than Disqualified Stock) or other Indebtedness of the Borrower
which by its terms, or by the terms of any agreement or instrument
pursuant to which such other Indebtedness is Incurred, meets clauses
(a) and (b) above after the Incurrence of such Indebtedness.
"SUBSIDIARY" means, with respect to any Person, any
corporation, association or other business entity of which more than
50% of the voting power of the outstanding Voting Stock is owned,
directly or indirectly, by such Person and one or more other
Subsidiaries of such Person.
"TAX AMOUNT" means, with respect to any period, without
duplication, the increase in the cumulative United States Federal,
state and local tax liability of holders of equity interests in the
Borrower (or if such holder is a pass-through entity for United States
income tax purposes, holders of its equity interests) in respect of
their interests in the Borrower for such period plus any additional
amounts payable to such holders to cover taxes arising from the
ownership of such equity interests, but excluding any increase in tax
liability or additional amounts payable in respect of a gain realized
by a holder of an equity interest in the Borrower upon the sale or
disposition by such holder of an equity interest, including without
limitation, any redemption thereof by the Borrower, in the Borrower.
"TEMPORARY CASH INVESTMENT" means any of the following: (a)
direct obligations of the United States of America or any agency
thereof or obligations fully and unconditionally guaranteed by the
United States of America or any agency thereof, (b) time deposit
accounts, certificates of deposit and money market deposits maturing
within one year of the date of acquisition thereof issued by a bank or
trust
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company which is organized under the laws of the United States of
America, any state thereof or any foreign country recognized by the
United States of America, and which bank or trust company has capital,
surplus and undivided profits aggregating in excess of $500 million (or
the foreign currency equivalent thereof) and has outstanding debt which
is rated "A" (or such similar equivalent rating) or higher by at least
one nationally recognized statistical rating organization (as defined
in Rule 436 under the Securities Act) or any money-market fund
sponsored by a registered broker dealer or mutual fund distributor, (c)
repurchase obligations with a term of not more than 30 days for
underlying securities of the types described in clause (a) above
entered into with a bank meeting the qualifications described in clause
(b) above, (d) commercial paper, maturing not more than one year after
the date of acquisition, issued by a corporation (other than an
Affiliate of the Borrower) organized and in existence under the laws of
the United States of America, any state thereof or any foreign country
recognized by the United States of America with a rating at the time as
of which any Investment therein is made of "P-1" (or higher) according
to ▇▇▇▇▇'▇ or "A-1" (or higher) according to S&P, (e) securities with
maturities of six months or less from the date of acquisition issued or
fully and unconditionally guaranteed by any state, commonwealth or
territory of the United States of America, or by any political
subdivision or taxing authority thereof, and rated at least "A" by S&P
or ▇▇▇▇▇'▇, (f) corporate debt securities with maturities of eighteen
months or less from the date of acquisition and with a rating at the
time as of which any Investment therein is made of "A3" (or higher)
according to ▇▇▇▇▇'▇ or "A-" (or higher) according to S&P and (g) money
market funds at least 95% of the assets of which are invested in the
foregoing.
"TRADE PAYABLES" means, with respect to any Person, any
accounts payable or any other indebtedness or monetary obligation to
trade creditors created, assumed or Guaranteed by such Person or any of
its Subsidiaries arising in the ordinary course of business in
connection with the acquisition of goods or services.
"TRANSACTION DATE" means, with respect to the Incurrence of
any Indebtedness by the Borrower or any of its Restricted Subsidiaries,
the date such Indebtedness is to be Incurred and, with respect to any
Restricted Payment, the date such Restricted Payment is to be made.
"UNRESTRICTED SUBSIDIARY" means (a) any Subsidiary of the
Borrower that at the time of determination shall be designated an
Unrestricted Subsidiary by the Board of Directors in the manner
provided below; and (b) any Subsidiary of an Unrestricted Subsidiary.
The Board of Directors may designate any Restricted Subsidiary
(including any newly acquired or newly formed Subsidiary of the
Borrower) to be an Unrestricted Subsidiary unless such Subsidiary owns
any Capital Stock of, or owns or holds any Lien on any property of, the
Borrower or any Restricted Subsidiary; provided that (i) any Guarantee
by the Borrower or any Restricted Subsidiary of any Indebtedness of the
Subsidiary being so designated shall be deemed an "Incurrence" of such
Indebtedness and an "Investment" by the Borrower or such Restricted
Subsidiary (or both, if applicable) at the time of such designation;
(ii) either (A) the Subsidiary to be so designated has total assets of
$1,000 or less or (B) if such Subsidiary has assets greater than
$1,000, such designation would be permitted under Section 5.02(f) and
(iii) if applicable, the Incurrence of Indebtedness and the Investment
referred to in clause (i) of this proviso would be permitted under
Section
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5.02(b) and Section 5.02(f). The Board of Directors may designate any
Unrestricted Subsidiary to be a Restricted Subsidiary; provided that
(i) no Default or Event of Default shall have occurred and be
continuing at the time of or after giving effect to such designation
and (ii) all Liens and Indebtedness of such Unrestricted Subsidiary
outstanding immediately after such designation would, if Incurred at
such time, have been permitted to be Incurred (and shall be deemed to
have been Incurred) for all purposes of this Indenture. Any such
designation by the Board of Directors shall be evidenced to the
Administrative Agent by promptly filing with the Administrative Agent a
copy of the Board Resolution giving effect to such designation and an
Officers' Certificate certifying that such designation complied with
the foregoing provisions.
"VOTING STOCK" means, with respect to any Person, Capital
Stock of any class or kind ordinarily having the power to vote for the
election of directors, managers or other voting members of the
governing body of such Person.
"WHOLLY OWNED" means, with respect to any Subsidiary of any
Person, the ownership of all of the outstanding Capital Stock of such
Subsidiary (other than any director's qualifying shares or Investments
by foreign nationals mandated by applicable law) by such Person or one
or more Wholly Owned Subsidiaries of such Person.
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ARTICLE V
COVENANTS OF THE BORROWER
SECTION 5.01. Affirmative Covenants. So long as any Advance or
any other Obligation of the Borrower under any Bridge Document shall remain
unpaid or any Lender shall have any Commitment hereunder, the Borrower will:
(a) Payment of Notes. Pay the principal of, premium, if any,
and interest on the Advances on the dates and in the manner provided in
this Agreement. An installment of principal, premium, if any, or
interest shall be considered paid on the date due if the Administrative
Agent (other than the Borrower, a Subsidiary of the Borrower, or any
Affiliate of any of them) holds on that date money designated for and
sufficient to pay the installment. The Borrower shall pay interest on
overdue principal and premium, if any, and interest on overdue
installments of interest, to the extent lawful, at the rate per annum
specified in Section 2.06.
(b) Maintenance of Office or Agency. Maintain in the Borough
of Manhattan, The City of New York, an office or agency where Advances
may be repaid and Notes and Exchange Securities, if any, may be
surrendered for registration of transfer or exchange or for
presentation for payment and where notices and demands to or upon the
Borrower in respect of the Advances, the Notes and the Exchange
Securities, if any, and this Agreement may be served. The Borrower will
give prompt written notice to the Administrative Agent of the location,
and any change in the location, of such office or agency. If at any
time the Borrower shall fail to maintain any such required office or
agency or shall fail to furnish the Administrative Agent with the
address thereof, such presentations, surrenders, notices and demands
may be made or served at the address of the Administrative Agent set
forth in Section 8.02. The Borrower may also from time to time
designate one or more other offices or agencies where Advances may be
repaid and the Notes and the Exchange Securities, if any, may be
presented or surrendered for any or all such purposes and may from time
to time rescind such designations; provided that no such designation or
rescission shall in any manner relieve the Borrower of its obligation
to maintain an office or agency in the Borough of Manhattan, The City
of New York, for such purposes. The Borrower shall give prompt written
notice to the Administrative Agent of any such designation or
rescission and of any change in the location of any such other office
or agency. The Borrower hereby initially designates the office of the
Administrative Agent as such office of the Borrower.
(c) Existence. Subject to Article Five of this Agreement, do
or cause to be done all things necessary to preserve and keep in full
force and effect its existence and the existence of each of the
Restricted Subsidiaries in accordance with the respective
organizational documents of the Borrower and each Restricted Subsidiary
and the rights (whether pursuant to charter, partnership certificate,
agreement, statute or otherwise), licenses and franchises of the
Borrower and each Restricted Subsidiary; provided that the Borrower
shall not be required to preserve any such right, license or franchise,
or the existence of any Restricted Subsidiary, if the maintenance or
preservation thereof is no longer desirable in the conduct of the
business of the Borrower and the Restricted Subsidiaries taken as a
whole.
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(d) Payment of Taxes and Other Claims. Pay or discharge and
shall cause each of the Restricted Subsidiaries to pay or discharge, or
cause to be paid or discharged, before the same shall become delinquent
(i) all material taxes, assessments and governmental charges levied or
imposed upon (A) the Borrower or any such Restricted Subsidiary, (B)
the income or profits of any such Restricted Subsidiary which is a
corporation or (C) the property of the Borrower or any such Restricted
Subsidiary and (ii) all material lawful claims for labor, materials and
supplies that, if unpaid, might by law become a lien upon the property
of the Borrower or any such Restricted Subsidiary; provided that the
Borrower shall not be required to pay or discharge, or cause to be paid
or discharged, any such tax, assessment, charge or claim the amount,
applicability or validity of which is being contested in good faith by
appropriate proceedings and for which adequate reserves have been
established.
(e) Maintenance of Properties and Insurance. (i) Cause all
properties used or useful in the conduct of its business or the
business of any of the Restricted Subsidiaries to be maintained and
kept in good condition, repair and working order and supplied with all
necessary equipment and will cause to be made all necessary repairs,
renewals, replacements, betterments and improvements thereof, all as in
the judgment of the Borrower may be necessary so that the business
carried on in connection therewith may be properly and advantageously
conducted at all times; provided that nothing in this Section 5.01(e)
shall prevent the Borrower or any Restricted Subsidiary from
discontinuing the use, operation or maintenance of any of such
properties or disposing of any of them, if such discontinuance or
disposal is, in the judgment of the Borrower or of such Restricted
Subsidiary having managerial responsibility for any such property,
desirable in the conduct of the business of the Borrower or such
Restricted Subsidiary;
(ii) Provide or cause to be provided, for itself and the
Restricted Subsidiaries, insurance (including appropriate
self-insurance) against loss or damage of the kinds customarily insured
against by corporations similarly situated and owning like properties
with reputable insurers or with the government of the United States of
America, or an agency or instrumentality thereof, in such amounts, with
such deductibles and by such methods as the Borrower in good faith
shall determine to be reasonable and appropriate in the circumstances.
(f) Permanent Financings. Cooperate with the Lenders in
connection with, and use its reasonable best efforts to effectuate, the
Permanent Financings, including, without limitation, upon request by
MS&Co.:
(i) in connection with any private offerings with or
without registration rights (including offers and sales
pursuant to Rule 144A and Regulation S under the Securities
Act), preparing customary offering memorandums relating to the
offer and sale of Permanent Securities, such offering
memorandums containing (A) such disclosures as would have been
included in a registration statement filed under the
Securities Act or as may be required by applicable laws,
rules, regulations or other requirements, (B) such disclosures
as may be appropriate or customary for such offering
memorandums and (C) such disclosures as reasonably requested
by MS&Co.
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(ii) in connection with any private offerings with
registration rights (including offers and sales pursuant to Rule 144A
and Regulation S under the Securities Act), executing and delivering
registration rights agreements, in form and substance reasonably
satisfactory to MS&Co.;
(iii) in connection with any public offerings (including
offerings pursuant to a "shelf" registration statement), preparing
prospectuses relating to the offer and sale of Permanent Securities in
connection with the Permanent Financings, such prospectuses containing
(A) such disclosures as may be required by the Securities Act and other
applicable laws, rules, regulations or other requirements, (B) such
disclosures as may be appropriate or customary for such documents and
(C) such disclosures as reasonably requested by MS&Co., and filing the
related registration statements;
(iv) providing Board Resolutions approving any issuances and
sales of the Permanent Securities in connection with the Permanent
Financings, the related purchase agreements and/or underwriting
agreements and the transactions contemplated thereby, and all documents
evidencing other necessary corporate action with respect to the
issuances and sales of the Permanent Securities in connection with the
Permanent Financings;
(v) executing and delivering all necessary purchase agreements
and/or underwriting agreements, in form and substance reasonably
satisfactory to MS&Co., containing in all cases customary covenants,
representations and warranties and indemnities and providing for in all
cases the delivery of customary legal opinions (including, without
limitation, 10-b5 opinions in the case of registered or 144A
offerings), officers' and other certificates and accountants' comfort
letters;
(vi) if any "qualified independent underwriter" is required by
the National Association of Securities Dealers, Inc. in connection with
any offer or sale of the Permanent Securities, paying an underwriting
fee (in a customary and reasonable amount for transactions of this type
and amount) and agreeing to indemnify such underwriter on customary
terms, which underwriter shall be a firm selected by MS&Co. and
reasonably agreed upon by the Borrower;
(vii) assisting MS&Co. and any other placement agents and/or
underwriters in their selling efforts, including, without limitation,
providing such persons all information reasonably deemed necessary by
MS&Co. in connection with the offer and sale of the Permanent
Securities issued and sold in order to consummate the Permanent
Financings, including, but not limited to, information and projections
prepared by the Borrower and its Subsidiaries or on its behalf relating
to offering and sales of such Permanent Securities including making
available representatives of the Borrower and its Subsidiaries and, if
appropriate, using its reasonable best efforts to make available
representatives of any other issuer of such Permanent Securities;
(viii) assisting MS&Co. and any other placement agents and/or
underwriters in connection with the marketing of any Permanent
Securities to be offered publicly or placed privately which marketing
efforts may be
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accomplished by a variety of means, including, without limitation,
supplementing and updating any offering materials to be used in the
marketing of the Permanent Securities and the use of road show
presentations (including "one-on-one" meetings) involving senior
management of the Borrower and its Subsidiaries on the one hand and the
proposed purchasers of the Permanent Securities on the other hand, in
each case in order to consummate the Permanent Financings;
(ix) paying all fees and expenses of MS&Co. and any other
placement agents and/or underwriters set forth in the Commitment Letter
and in the Side Letter, as the case may be, and other customary fees
and expenses relating to any offerings and sales of Permanent
Securities; and
(x) providing such other cooperation and assistance as is
customarily provided by issuers in connection with such private
placements and/or public sales of their securities, and taking such
further actions and preparing, executing, delivering and filing any
agreements, instruments, documents and certificates to effectuate the
Permanent Financing.
SECTION 5.02. Negative Covenants. So long as any Advance or
any other Obligation of the Borrower under any Bridge Document shall remain
unpaid or any Lender shall have any Commitment hereunder, the Borrower will not,
at any time:
(a) Liens, Etc. Create, incur, assume or suffer to exist, or
permit any of its Restricted Subsidiaries to create, incur, assume or
suffer to exist, any Lien on any of its assets or properties of any
character (including, without limitation, licenses) or any shares of
Capital Stock or Indebtedness of any Restricted Subsidiaries of the
Borrower, without making effective provision for all of the Advances
and all other amounts due under this Agreement to be directly secured
equally and ratably with (or, if the obligation or liability to be
secured by such Lien is subordinated in right of payment to the
Advances, prior to) the obligation or liability secured by such Lien.
The foregoing limitation does not apply to:
(i) Liens existing on the Existing High Yield Closing
Date;
(ii) Liens granted after the Existing High Yield
Closing Date on any assets or Capital Stock of the Borrower or
its Restricted Subsidiaries created in favor of the Lenders
and the holders of Exchange Securities (if any have been
issued);
(iii) Liens with respect to the assets of a
Restricted Subsidiary granted by such Restricted Subsidiary to
the Borrower or a Wholly Owned Restricted Subsidiary to secure
Indebtedness owing to the Borrower or such other Restricted
Subsidiary;
(iv) Liens securing Indebtedness which is Incurred to
refinance secured Indebtedness which is permitted to be
Incurred under clause (iii) of the second paragraph of Section
5.02(b); provided that such Liens do not extend to or cover
any property or assets of the Borrower or any Restricted
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Subsidiary other than the property or assets securing the
Indebtedness being refinanced;
(v) Liens on any Capital Stock of, or any property or
assets of, a Restricted Subsidiary of the Borrower securing
Indebtedness of such Restricted Subsidiary permitted under
Section 5.02(b); or
(vi) Permitted Liens.
(b) Indebtedness. Incur or permit any of its Restricted
Subsidiaries to Incur any Indebtedness (other than the Advances, the
Exchange Securities and Indebtedness existing on the Existing High
Yield Closing Date); provided that the Borrower may Incur Indebtedness
if, after giving effect to the Incurrence of such Indebtedness and the
receipt and application of the proceeds therefrom, the Consolidated
Leverage Ratio would be greater than zero and less than 6.0:1.
Notwithstanding the foregoing, the Borrower and any of its
Restricted Subsidiaries (except as specified below) may Incur each and
all of the following:
(i) Indebtedness outstanding at any time in an
aggregate principal amount not to exceed $300 million, less
any amount of such Indebtedness permanently repaid as provided
under Section 5.02(e);
(ii) Indebtedness owed (A) to the Borrower evidenced
by a promissory note or (B) to any Restricted Subsidiary;
provided that any event which results in any such Restricted
Subsidiary ceasing to be a Restricted Subsidiary or any
subsequent transfer of such Indebtedness (other than to the
Borrower or another Restricted Subsidiary) shall be deemed, in
each case, to constitute an Incurrence of such Indebtedness
not permitted by this clause (ii);
(iii) Indebtedness issued in exchange for, or the net
proceeds of which are used to refinance or refund, then
outstanding Indebtedness (other than Indebtedness Incurred
under clause (i), (ii), (iv), (vi), (viii) or (ix) of this
paragraph and any refinancings thereof in an amount not to
exceed the amount so refinanced or refunded (plus premiums,
accrued interest, fees and expenses); provided that
Indebtedness the proceeds of which are used to refinance or
refund the Advances or Indebtedness that is pari passu with,
or subordinated in right of payment to the Advances and, if
issued, the Exchange Securities shall only be permitted under
this clause (iii) if
(A) in case the Advances and, if issued, the
Exchange Securities, are refinanced in part or the
Indebtedness to be refinanced is pari passu with the
Advances, such new Indebtedness, by its terms or by
the terms of any agreement or instrument pursuant to
which such new Indebtedness is outstanding, is
expressly made pari passu with, or subordinate in
right of payment to, the remaining Advances and
Exchange Securities;
(B) in case the Indebtedness to be
refinanced is subordinated in right of payment to the
Advances, such new Indebtedness, by its terms or by
the terms of any agreement or
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instrument pursuant to which such new Indebtedness is
issued or remains outstanding, is expressly made
subordinate in right of payment to the Advances, and,
if issued the Exchange Securities at least to the
extent that the Indebtedness to be refinanced is
subordinated to the Advances and the Exchange
Securities; and
(C) such new Indebtedness, determined as of
the date of Incurrence of such new Indebtedness, does
not mature prior to the Stated Maturity of the
Indebtedness to be refinanced or refunded, and the
Average Life of such new Indebtedness is at least
equal to the remaining Average Life of the
Indebtedness to be refinanced or refunded; and
provided, further that in no event may Indebtedness
of the Borrower be refinanced by means of any
Indebtedness of any Restricted Subsidiary pursuant to
this clause (iii);
(iv) Indebtedness
(A) in respect of performance, surety or
appeal bonds provided in the ordinary course of
business,
(B) under Currency Agreements and Interest
Rate Agreements; provided that such agreements (a)
are designed solely to protect the Borrower or its
Restricted Subsidiaries against fluctuations in
foreign currency exchange rates or interest rates and
(b) do not increase the Indebtedness of the obligor
outstanding at any time other than as a result of
fluctuations in foreign currency exchange rates or
interest rates or by reason of fees, indemnities and
compensation payable thereunder, and
(C) arising from agreements providing for
indemnification, adjustment of purchase price or
similar obligations, or from Guarantees or letters of
credit, surety bonds or performance bonds securing
any obligations of the Borrower or any of its
Restricted Subsidiaries pursuant to such agreements,
in any case Incurred in connection with the
disposition of any business, assets or Restricted
Subsidiary (other than Guarantees of Indebtedness
Incurred by any Person acquiring all or any portion
of such business, assets or Restricted Subsidiary for
the purpose of financing such acquisition), in a
principal amount not to exceed the gross proceeds
actually received by the Borrower or any Restricted
Subsidiary in connection with such disposition;
(v) Indebtedness of the Borrower or any Restricted
Subsidiary, to the extent the net proceeds thereof are
promptly used to prepay Advances hereunder and repurchase the
Exchange Securities issued under the Exchange Indenture
(including to pay the purchase price in respect of any
Advances or Exchange Securities pursuant to any offer to
purchase such securities);
(vi) Guarantees of the Advances and the Exchange
Securities and Guarantees of Indebtedness of the Borrower by
any Restricted Subsidiary provided the Guarantee in respect of
such Indebtedness is permitted by and made in accordance with
Section 5.02(l);
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(vii) Indebtedness Incurred to finance the cost
(including the cost of design, development, acquisition,
construction, installation, improvement, transportation or
integration and all transaction costs related to the
foregoing) to acquire equipment, inventory or network assets
(including acquisitions by way of Capitalized Lease and
acquisitions of the Capital Stock of a Person that becomes a
Restricted Subsidiary to the extent of the fair market value
of the equipment, inventory or network assets so acquired plus
goodwill associated therewith) by the Borrower or a Restricted
Subsidiary after the Effective Date;
(viii) Indebtedness of the Borrower not to exceed, at
any one time outstanding, two times (A) the Net Cash Proceeds
received by the Borrower after the Existing High Yield Closing
Date from the issuance and sale of its Capital Stock (other
than Disqualified Stock) to a Person that is not a Subsidiary
of the Borrower, to the extent (I) such Net Cash Proceeds have
not been used pursuant to clause (C)(2) of the first paragraph
or clause (iii), (iv), (vi) or (vii) of the second paragraph
of Section 5.02(f) to make a Restricted Payment and (II) if
such Net Cash Proceeds are used to consummate a transaction
pursuant to which the Borrower Incurs Acquired Indebtedness,
the amount of such Net Cash Proceeds exceeds one half of the
amount of Acquired Indebtedness so Incurred and (B) 80% of the
fair market value of property (other than cash and cash
equivalents) received by the Borrower after the Existing High
Yield Closing Date from the sale of its Capital Stock (other
than Disqualified Stock) to a Person that is not a Subsidiary
of the Borrower, to the extent (I) such sale of Capital Stock
has not been used pursuant to clause (iii), (iv), (vi) or
(vii) of the second paragraph of Section 5.02(f) to make a
Restricted Payment and (II) if such Capital Stock is used to
consummate a transaction pursuant to which the Borrower Incurs
Acquired Indebtedness, 80% of the fair market value of the
property received exceeds one half of the amount of Acquired
Indebtedness so Incurred; provided that such Indebtedness does
not mature prior to the Stated Maturity of the Advances and if
issued, the Exchange Securities and has an Average Life longer
than the Advances and, if issued, the Exchange Securities;
(ix) Acquired Indebtedness;
(x) Strategic Subordinated Indebtedness;
(xi) subordinated Indebtedness of the Borrower (in
addition to Indebtedness permitted under clauses (i) through
(x) above) in an aggregate principal amount outstanding at any
time not to exceed $200 million, less any amount of such
Indebtedness permanently repaid as provided under Section
5.02(e); and
(xii) Indebtedness under the Bridge Documents.
Notwithstanding any other provision of this Section 5.02(b),
the maximum amount of Indebtedness that the Borrower or a Restricted
Subsidiary may Incur pursuant to this Section 5.02(b) shall not be
deemed to be exceeded, with respect to any outstanding Indebtedness due
solely to the result of fluctuations in the exchange rates of
currencies.
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For purposes of determining any particular amount of
Indebtedness under this Section 5.02(b)(1) Guarantees, Liens or
obligations with respect to letters of credit supporting Indebtedness
otherwise included in the determination of such particular amount shall
not be included and (2) any Liens granted pursuant to the equal and
ratable provisions referred to in Section 5.02(a) shall not be treated
as Indebtedness. For purposes of determining compliance with this
Section 5.02(b), in the event that an item of Indebtedness meets the
criteria of more than one of the types of Indebtedness described in the
above clauses, the Borrower, in its sole discretion, shall classify,
and from time to time may reclassify, such item of Indebtedness and
only be required to include the amount and type of such Indebtedness in
one of such clauses.
For purposes of determining compliance with any
Dollar-denominated restriction on the Incurrence of Indebtedness
denominated in a foreign currency, the Dollar-equivalent principal
amount of such Indebtedness Incurred pursuant thereto shall be
calculated based on the relevant currency exchange rate in effect on
the date that such Indebtedness was Incurred, provided that (x) the
Dollar-equivalent principal amount of any such Indebtedness outstanding
on the Existing High Yield Closing Date shall be calculated based on
the relevant currency exchange rate in effect on the Existing High
Yield Closing Date and (y) if such Indebtedness is Incurred to
refinance other Indebtedness denominated in a foreign currency, and
such refinancing would cause the applicable Dollar-denominated
restriction to be exceeded if calculated at the relevant currency
exchange rate in effect on the date of such refinancing, such
Dollar-denominated restriction shall be deemed not to have been
exceeded so long as the principal amount of such refinancing
Indebtedness, converted into the currency in which the Indebtedness
being refinanced is denominated at the currency exchange rate in effect
on the date of such refinancing, does not exceed the principal amount
of such Indebtedness being refinanced (plus premiums, accrued interest,
fees and expenses). The principal amount of any Indebtedness Incurred
to refinance other Indebtedness, if Incurred in a different currency
from the Indebtedness being refinanced, shall be calculated based on
the foreign currency exchange rate applicable to the currencies in
which such respective Indebtedness is denominated that is in effect on
the date of such refinancing.
(c) Intentionally Omitted.
(d) Mergers, Etc. Consolidate with, merge with or into, or
sell, convey, transfer, lease or otherwise dispose of all or
substantially all of its property and assets (as an entirety or
substantially an entirety in one transaction or a series of related
transactions) to, any Person or permit any Person to merge with or into
the Borrower unless:
(i) the Borrower shall be the continuing Person, or
the Person (if other than the Borrower) formed by such
consolidation or into which the Borrower is merged or that
acquired or leased such property and assets of the Borrower
shall be a corporation organized and validly existing under
the laws of the United States of America or any jurisdiction
thereof and shall expressly assume, by a supplemental
agreement, executed and delivered to the Administrative Agent,
all of the obligations of the Borrower in respect of the
Advances and under all of the Notes, if any, and, if issued,
the Exchange Securities, if any, and under this Agreement;
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(ii) immediately after giving effect to such
transaction, no Default shall have occurred and be continuing;
(iii) immediately after giving effect to such
transaction on a pro forma basis, the Borrower or any Person
becoming the successor obligor in respect of the Advances
shall have a Consolidated Net Worth equal to or greater than
the Consolidated Net Worth of the Borrower immediately prior
to such transaction; provided that this clause (iii) shall
only apply to a sale of substantially all, but less than all,
of the assets of the Borrower;
(iv) immediately after giving effect to such
transaction on a pro forma basis the Borrower, or any Person
becoming the successor obligor in respect of the Advances, as
the case may be, could Incur at least $1.00 of Indebtedness
under the first paragraph of Section 5.02(b); provided that
this clause (iv) shall not apply to
(A) a consolidation, merger or sale of all
(but not less than all) of the assets of the Borrower
if all Liens and Indebtedness of the Borrower or any
Person becoming the successor obligor in respect of
the Advances, as the case may be, and its Restricted
Subsidiaries outstanding immediately after such
transaction would, if Incurred at such time, have
been permitted to be Incurred (and all such Liens and
Indebtedness, other than Liens and Indebtedness of
the Borrower and its Restricted Subsidiaries
outstanding immediately prior to the transaction,
shall be deemed to have been Incurred) for all
purposes of this Agreement; or
(B) a consolidation, merger or sale of all
or substantially all of the assets of the Borrower if
immediately after giving effect to such transaction
on a pro forma basis, the Borrower or any Person
becoming the successor obligor under this Agreement
shall have a Consolidated Leverage Ratio equal to or
less than the Consolidated Leverage Ratio of the
Borrower immediately prior to such transaction; and
(C) the Borrower delivers to the
Administrative Agent a certificate of a Responsible
Officer of the Borrower (attaching the arithmetic
computations to demonstrate compliance with clauses
(iii) and (iv) above) and an opinion of counsel, in
each case stating that such consolidation, merger or
transfer and such supplemental agreement complies
with this provision and that all conditions precedent
provided for herein relating to such transaction have
been complied with; provided, however, that clauses
(iii) and (iv) above do not apply if, in the good
faith determination of the Board of Directors, whose
determination shall be evidenced by Board
Resolutions, the principal purpose of such
transaction is to change the state of incorporation
of the Borrower; and provided further that any such
transaction shall not have as one of its purposes the
evasion of the foregoing limitations.
Upon any consolidation or merger, or any sale, conveyance,
transfer, lease or other disposition of all or substantially all of the
property and assets of the Borrower
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in accordance with this Section 5.02(d), the successor Person formed by
such consolidation or into which the Borrower is merged or to which
such sale, conveyance, transfer, lease or other disposition is made
shall succeed to, and be substituted for, and may exercise every right
and power of, the Borrower under this Agreement with the same effect as
if such successor Person had been named as the Borrower herein;
provided that the Borrower shall not be released from its obligation to
pay the principal of, premium, if any, or interest on the Advances in
the case of a lease of all or substantially all of its property and
assets.
(e) Sales, Etc., of Assets. Consummate, and will not permit
any Restricted Subsidiary to consummate, any Asset Sale, unless (i) the
consideration received by the Borrower or such Restricted Subsidiary is
at least equal to the fair market value of the assets sold or disposed
of and (ii) at least 75% of the consideration received consists of
cash, Temporary Cash Investments or the assumption of Indebtedness of
the Borrower (other than Indebtedness that is subordinated to the
Advances) or of any of its Restricted Subsidiaries and unconditional
release of the Borrower and its Restricted Subsidiaries from all
liability on the Indebtedness assumed; provided, however, that this
clause (ii) shall not apply to long-term assignments of capacity in a
telecommunications network. In the event and to the extent that the Net
Cash Proceeds received by the Borrower or any of its Restricted
Subsidiaries from one or more Asset Sales occurring on or after the
Effective Date in any period of 12 consecutive months exceed 10% of
Adjusted Consolidated Net Tangible Assets (determined as of the date
closest to the commencement of such 12 month period for which a
consolidated balance sheet of the Borrower and its Subsidiaries has
been filed with the Commission pursuant to Section 5.03, then the
Borrower shall or shall cause the relevant Restricted Subsidiary to (i)
within 12 months after the date Net Cash Proceeds so received exceed
10% of Adjusted Consolidated Net Tangible Assets (A) apply an amount
equal to such excess Net Cash Proceeds less any amounts invested within
6 months prior to such Asset Sale in property or assets of a nature or
type or that are used in a business (or in a company having property
and assets of a nature or type, or engaged in a business) similar or
related to the nature or type of the property and assets of, or the
business of, the Borrower and its Restricted Subsidiaries on the date
of such Asset Sale (the "ADJUSTED NET CASH PROCEEDS") to permanently
repay unsubordinated Indebtedness of the Borrower, or any Restricted
Subsidiary providing a Subsidiary Guarantee pursuant to Section 5.02(l)
or Indebtedness of any other Restricted Subsidiary, in each case owing
to a Person other than the Borrower or any of its Restricted
Subsidiaries or (B) invest an equal amount, or the amount of Adjusted
Net Cash Proceeds not so applied pursuant to clause (A) (or enter into
a definitive agreement committing to so invest within 12 months after
the date of such agreement), in property or assets (other than current
assets) of a nature or type or that are used in a business (or in a
company having property and assets of a nature or type, or engaged in a
business) similar or related to the nature or type of the property and
assets of, or the business of, the Borrower and its Restricted
Subsidiaries existing on the date of such investment (as determined in
good faith by the Board of Directors, whose determination shall be
conclusive and evidenced by a Board Resolution) and (ii) apply (no
later than the end of the 12 month period referred to in clause (i))
such excess Adjusted Net Cash Proceeds (to the extent not applied
pursuant to clause (i)) as provided in the following paragraph of this
Section 5.02(e). The amount of such excess Adjusted Net Cash Proceeds
required to be applied (or to be committed to be applied) during such
12-month period as set forth in clause (i) of the preceding
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sentence and not applied as so required by the end of such period shall
constitute "EXCESS PROCEEDS."
If, as of the first day of any calendar month, the aggregate amount of
Excess Proceeds not theretofore subject to a prepayment obligation
pursuant to this Section 5.02(e) totals at least $10 million, the
Borrower shall, not later than the date (the "ASSET SALE PREPAYMENT
DATE") that is the earlier of the fourteenth Business Day of such month
and the day immediately preceding the date on which the Borrower or any
of its Restricted Subsidiaries shall otherwise be required by the terms
of the Existing High Yield Indenture or any other indenture to which it
is a party to make an offer to prepay the Indebtedness thereunder,
subject to clauses (b)(iii) and (b)(iv) of Section 2.05, prepay the
Advances on a pro rata basis in an aggregate principal amount of
Advances equal to the Excess Proceeds on such date, plus, in each case,
accrued interest (if any) to the date of prepayment.
(f) Restricted Payments. Directly or indirectly, or permit any
of its Restricted Subsidiaries to, (i) declare or pay any dividend or
make any distribution on or with respect to its Capital Stock (other
than (x) dividends or distributions payable solely in shares of its
Capital Stock (other than Disqualified Stock) or in options, warrants
or other rights to acquire shares of such Capital Stock and (y) pro
rata dividends or distributions on Common Stock of Restricted
Subsidiaries of the Borrower held by minority stockholders) held by
Persons other than the Borrower or any of its Restricted Subsidiaries,
(ii) purchase, redeem, retire or otherwise acquire for value any shares
of Capital Stock of (A) the Borrower or an Unrestricted Subsidiary
(including options, warrants or other rights to acquire such shares of
Capital Stock) held by any Person or (B) a Restricted Subsidiary
(including options, warrants or other rights to acquire such shares of
Capital Stock) held by any Affiliate of the Borrower (other than a
Wholly Owned Restricted Subsidiary) or any holder (or any Affiliate of
such holder) of 5% or more of the Capital Stock of the Borrower, (iii)
make any voluntary or optional principal payment, or voluntary or
optional redemption, repurchase, defeasance, or other acquisition or
retirement for value, of Indebtedness of the Borrower that is
subordinated in right of payment to the Advances or (iv) make any
Investment, other than a Permitted Investment, in any Person (such
payments or any other actions described in clauses (i) through (iv)
above being collectively "RESTRICTED PAYMENTS") if, at the time of, and
after giving effect to, the proposed Restricted Payment:
(A) a Default shall have occurred and be continuing,
(B) the Borrower could not Incur at least $1.00 of
Indebtedness under the first paragraph of Section 5.02(b); or
(C) the aggregate amount of all Restricted Payments
(the amount, if other than in cash, to be determined in good
faith by the Board of Directors, whose determination shall be
conclusive and evidenced by a Board Resolution) made after the
Existing High Yield Closing Date shall exceed the sum of
(1) the amount by which Consolidated EBITDA
exceeds 150% of Consolidated Interest Expense, in
each case, determined on a cumulative basis during
the period (taken as one accounting period)
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beginning on the first day of the fiscal quarter
immediately following the Existing High Yield Closing
Date and ending on the last day of the last fiscal
quarter preceding the Transaction Date for which
reports have been filed with the Securities and
Exchange Commission or provided to the Administrative
Agent pursuant to Section 5.03, plus
(2) the aggregate Net Cash Proceeds received
by the Borrower after the Existing High Yield Closing
Date from the issuance and sale permitted by this
Agreement of its Capital Stock (other than
Disqualified Stock) to a Person who is not a
Subsidiary, including an issuance or sale permitted
by this Agreement of Indebtedness of the Borrower for
cash subsequent to the Existing High Yield Closing
Date upon the conversion of such Indebtedness into
Capital Stock (other than Disqualified Stock) of the
Borrower, or from the issuance to a Person who is not
a Subsidiary of any options, warrants or other rights
to acquire Capital Stock of the Borrower (in each
case, exclusive of any Disqualified Stock or any
options, warrants or other rights that are redeemable
at the option of the holder, or are required to be
redeemed, prior to the Termination Date), in each
case except to the extent such Net Cash Proceeds are
used to Incur Indebtedness pursuant to clause (viii)
or (ix) of the second paragraph under Section
5.02(b), plus
(3) an amount equal to the net reduction in
Investments (other than reductions in Permitted
Investments) in any Person resulting from payments of
interest on Indebtedness, dividends, repayments of
loans or advances, or other transfers of assets, in
each case to the Borrower or any Restricted
Subsidiary or from the Net Cash Proceeds from the
sale of any such Investment (except, in each case, to
the extent any such payment or proceeds are included
in the calculation of Adjusted Consolidated Net
Income), or from redesignations of Unrestricted
Subsidiaries as Restricted Subsidiaries (valued in
each case as provided in the definition of
"Investment") not to exceed, in each case, the amount
of Investments previously made by the Borrower or any
Restricted Subsidiary in such Person or Unrestricted
Subsidiary.
The foregoing provision shall not be violated by reason of:
(i) the payment of any dividend within 60 days after
the date of declaration thereof if, at said date of
declaration, such payment would comply with the foregoing
paragraph;
(ii) the redemption, repurchase, defeasance or other
acquisition or retirement for value of Indebtedness that is
subordinated in right of payment to the Advances including
premium, if any, and accrued and unpaid interest, with the
proceeds of, or in exchange for, Indebtedness Incurred under
clause (iii) of the second paragraph of Section 5.02(b)
(iii) the repurchase, redemption or other acquisition
of Capital Stock of the Borrower or any Unrestricted
Subsidiary (or options, warrants or other rights to acquire
such Capital Stock) in exchange for, or out of the
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proceeds of a substantially concurrent offering of, shares of
Capital Stock (other than Disqualified Stock) of the Borrower
(or options, warrants or other rights to acquire such Capital
Stock);
(iv) the making of any principal payment or the
repurchase, redemption, retirement, defeasance or other
acquisition for value of Indebtedness of the Borrower which is
subordinated in right of payment to the Advances in exchange
for, or out of the proceeds of a substantially concurrent sale
of, shares of the Capital Stock (other than Disqualified
Stock) of the Borrower (or options, warrants or other rights
to acquire such Capital Stock);
(v) payments or distributions to dissenting
stockholders pursuant to applicable law, pursuant to or in
connection with a consolidation, merger or transfer of assets
that complies with the provisions of this Agreement applicable
to mergers, consolidations and transfers of all or
substantially all of the property and assets of the Borrower;
(vi) Investments in any Person the primary business
of which is related, ancillary or complementary to the
business of the Borrower and its Restricted Subsidiaries on
the date of such Investments; provided that the aggregate
amount of Investments made pursuant to this clause (vi) does
not exceed the sum of (a) $10 million and (b) the amount of
Net Cash Proceeds received by the Borrower after the Existing
High Yield Closing Date from the sale of its Capital Stock
(other than Disqualified Stock) to a Person who is not a
Subsidiary of the Borrower, except to the extent such Net Cash
Proceeds are used to Incur Indebtedness pursuant to clause
(viii) or (ix) under Section 5.02(b) or to make Restricted
Payments pursuant to clause (C)(2) of the first paragraph, or
clauses (iii) or (iv) of this paragraph, of this Section
5.02(f), plus (z) the net reduction in Investments made
pursuant to this clause (vi) resulting from distributions on
or repayments of such Investments or from the Net Cash
Proceeds from the sale of any such Investment (except in each
case to the extent any such payment or proceeds is included in
the calculation of Adjusted Consolidated Net Income) or from
such Person becoming a Restricted Subsidiary (valued in each
case as provided in the definition of "INVESTMENTS"), provided
that the net reduction in any Investment shall not exceed the
amount of such Investment;
(vii) Investments acquired in exchange for Capital
Stock (other than Disqualified Stock) of the Borrower;
(viii) other Restricted Payments in an aggregate
amount not to exceed $10 million;
(ix) for so long as the Borrower is treated as a
pass-through entity for United States Federal income tax
purposes, distributions to equity holders of the Borrower in
an amount not to exceed the Tax Amount for such period; and
(x) the repurchase, redemption or other acquisition
of Capital Stock of the Borrower (or options, warrants or
other rights to acquire such Capital Stock) from Persons who
are or were formerly directors, officers or
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139
employees of the Borrower or any Restricted Subsidiary,
provided that the aggregate amount of all such repurchases
made in any calendar year pursuant to this clause (x) shall
not exceed $2.0 million;
provided that, except in the case of clauses (i) and (iii), no Default
shall have occurred and be continuing or occur as a consequence of the
actions or payments set forth therein.
Each Restricted Payment permitted pursuant to the preceding
paragraph (other than the Restricted Payment referred to in clause (ii)
thereof, an exchange of Capital Stock for Capital Stock or Indebtedness
referred to in clause (iii) or (iv) thereof and an Investment referred
to in clause (vi) thereof), and the Net Cash Proceeds from any issuance
of Capital Stock referred to in clauses (iii), (iv) and (vi), shall be
included in calculating whether the conditions of clause (C) of the
first paragraph of this Section 5.02(f) have been met with respect to
any subsequent Restricted Payments. In the event the proceeds of an
issuance of Capital Stock of the Borrower are used for the redemption,
repurchase or other acquisition of the Advances and, if issued, the
Exchange Securities, or Indebtedness that is pari passu with the
Advances and, if issued, the Exchange Securities, then the Net Cash
Proceeds of such issuance shall be included in clause (C) of the first
paragraph of this Section 5.02(f) only to the extent such proceeds are
not used for such redemption, repurchase or other acquisition of
Indebtedness.
(g) Sale-Leaseback Transactions. Enter, or permit any of its
Restricted Subsidiaries to enter, into any sale-leaseback transaction
involving any of its assets or properties whether now owned or
hereafter acquired, whereby the Borrower or a Restricted Subsidiary
sells or transfers such assets or properties and then or thereafter
leases such assets or properties or any part thereof or any other
assets or properties which the Borrower or such Restricted Subsidiary,
as the case may be, intends to use for substantially the same purpose
or purposes as the assets or properties sold or transferred.
The foregoing restriction does not apply to any sale-leaseback
transaction if (i) the lease is for a period, including renewal rights,
of not in excess of three years; (ii) the lease secures or relates to
industrial revenue or pollution control bonds; (iii) the transaction is
solely between the Borrower and any Wholly Owned Restricted Subsidiary
or solely between Wholly Owned Restricted Subsidiaries; or (iv) the
Borrower or such Restricted Subsidiary applies an amount not less than
the net proceeds received from such sale in compliance with Section
5.02(e).
(h) Payment Restrictions Affecting Restricted Subsidiaries.
Create or otherwise cause or suffer to exist or become effective, or
permit any of its Restricted Subsidiaries to create or otherwise cause
or suffer to exist or become effective, any consensual encumbrance or
restriction of any kind on the ability of any Restricted Subsidiary to
(i) pay dividends or make any other distributions permitted by
applicable law on any Capital Stock of such Restricted Subsidiary owned
by the Borrower or any of the Borrower's other Restricted Subsidiaries,
(ii) pay any Indebtedness owed to the Borrower or any of the Borrower's
other Restricted Subsidiaries, (iii) make loans or advances to the
Borrower or any other of its Restricted Subsidiaries or (iv) transfer
any of its property or assets to the Borrower or any other of its
Restricted Subsidiaries.
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The foregoing provisions shall not restrict any encumbrances
or restrictions:
(i) existing on the Effective Date in this Agreement
or in any other agreements in effect on the Existing High
Yield Closing Date, and any extensions, refinancings, renewals
or replacements of such agreements; provided that the
encumbrances and restrictions in any such extensions,
refinancings, renewals or replacements are not materially less
favorable in any material respect to the Lenders than those
encumbrances or restrictions that are then in effect and that
are being extended, refinanced, renewed or replaced;
(ii) existing under or by reason of applicable law or
required by any regulatory authority having jurisdiction over
the Borrower or any Restricted Subsidiary;
(iii) existing with respect to any Person or the
property or assets of such Person acquired by the Borrower or
any Restricted Subsidiary, existing at the time of such
acquisition and not incurred in contemplation thereof, which
encumbrances or restrictions are not applicable to any Person
or the property or assets of any Person other than such Person
or the property or assets of such Person so acquired, and any
extensions, renewals or replacements of such encumbrances or
restrictions; provided that the encumbrances and restrictions
in any such extensions, renewals or replacements are no less
favorable in any material respect to the Lenders than those
encumbrances or restrictions that are then in effect and that
are being extended, renewed or replaced;
(iv) in the case of clause (iv) of the first
paragraph of this Section 5.02(h),
(A) that restrict in a customary manner the
subletting, assignment or transfer of any property or
asset that is a lease, license, conveyance or
contract or similar property or asset,
(B) existing by virtue of any transfer of,
agreement to transfer, option or right with respect
to, or Lien on, any property or assets of the
Borrower or any of its Restricted Subsidiaries not
otherwise prohibited by this Agreement or
(C) arising or agreed to in the ordinary
course of business, not relating to any Indebtedness,
and that do not, individually or in the aggregate,
detract from the value of property or assets of the
Borrower or any of its Restricted Subsidiaries in any
manner material to the Borrower or any of its
Restricted Subsidiaries;
(v) with respect to a Restricted Subsidiary and
imposed pursuant to an agreement that has been entered into
for the sale or disposition of all or substantially all of the
Capital Stock of, or property and assets of, such Restricted
Subsidiary; or
(vi) contained in the terms of any Indebtedness or
any agreement pursuant to which such Indebtedness was issued
if
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(A) the encumbrance or restriction either
(1) applies only in the event of a payment default or
non compliance with respect to a financial covenant
contained in such Indebtedness or agreement or (2) is
contained in a Credit Agreement,
(B) the encumbrance or restriction is not
materially more disadvantageous to the Lenders than
is customary in comparable financings (as determined
by the Borrower) and
(C) the Borrower determines on the date of
the Incurrence of such Indebtedness that any such
encumbrance or restriction would not be expected to
materially impair the Borrower's ability to make
principal or interest payments on the Advances.
Nothing contained in this Section 5.02(h) shall prevent the
Borrower or any of its Restricted Subsidiaries from (1) creating,
incurring, assuming or suffering to exist any Liens otherwise permitted
in Section 5.02(a) or (2) restricting the sale or other disposition of
property or assets of the Borrower or any of its Restricted
Subsidiaries that secure Indebtedness of the Borrower or any of its
Restricted Subsidiaries.
(i) Transactions with Stockholders and Affiliates. Directly or
indirectly, enter into, renew or extend, or permit any of its
Restricted Subsidiaries to enter into, renew or extend, any transaction
(including, without limitation, the purchase, sale, lease or exchange
of property or assets, or the rendering of any service) with a Related
Person or any Affiliate of the Borrower or any of its Restricted
Subsidiaries, except upon fair and reasonable terms no less favorable
to the Borrower or such Restricted Subsidiary than could be obtained,
at the time of such transaction or, if such transaction is pursuant to
a written agreement, at the time of the execution of the agreement
providing therefor, in a comparable arm's-length transaction with a
Person that is not such a Related Person or an Affiliate.
The foregoing limitation does not limit, and shall not apply
to:
(i) transactions (A) approved by a majority of the
disinterested members of the Board of Directors or (B) for
which the Borrower or a Restricted Subsidiary delivers to the
Administrative Agent a written opinion of a nationally
recognized investment banking firm stating that the
transaction is fair to the Borrower or such Restricted
Subsidiary from a financial point of view;
(ii) any transaction solely between the Borrower and
any of its Wholly Owned Restricted Subsidiaries or solely
between Wholly Owned Restricted Subsidiaries of the Borrower;
(iii) the payment of reasonable and customary regular
fees to directors of the Borrower who are not employees of the
Borrower;
(iv) any payments or other transactions pursuant to
any tax-sharing agreement between the Borrower and any other
Person with which the Borrower files a consolidated tax return
or with which the Borrower is part of a consolidated group for
tax purposes;
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(v) any transaction with respect to the lease or
sharing or other use of cable or fiber lines, equipment,
transmission capacity, right-of-way or other access rights,
between the Borrower or any of its Restricted Subsidiaries and
any other Person; provided that such transaction is on terms
that (A) are consistent with past practice of the Borrower and
its Restricted Subsidiaries and (B) are no less favorable,
taken as a whole, to the Borrower or the relevant Restricted
Subsidiary than those that could have been obtained in a
comparable transaction by the Borrower or such Restricted
Subsidiary with an unrelated Person (or, in the event that
there are no comparable transactions involving unrelated
Persons to apply for comparative purposes, is otherwise on
terms that, taken as a whole, the Borrower has determined to
be fair to the Borrower or the relevant Restricted
Subsidiary); and
(vi) any Restricted Payments not prohibited by
Section 5.02(f).
Notwithstanding the foregoing, any transaction or series of
related transactions covered by the first paragraph of this Section
5.02(i) and not covered by clauses (ii) through (vi) of this paragraph,
the aggregate amount of which exceeds $10 million in value, must be
determined to be fair in the manner provided for in clause (i)(A) or
(B) above.
(j) Waiver of Stay, Extension or Usury Laws. To the extent
that it may lawfully do so, insist upon, or plead, or in any manner
whatsoever claim or take the benefit or advantage of, any stay or
extension law or any usury law or other law that would prohibit or
forgive the Borrower from paying all or any portion of the principal
of, premium, if any, or interest on the Advances and the Notes, if any,
and if issued the Exchange Securities, as contemplated herein, wherever
enacted, now or at any time hereafter in force, or that may affect the
covenants or the performance of this Agreement; and (to the extent that
it may lawfully do so) the Borrower hereby expressly waives all benefit
or advantage of any such law and covenants that it will not hinder,
delay or impede the execution of any power herein granted to the
Administrative Agent or the Lenders, but will suffer and permit the
execution of every such power as though no such law had been enacted.
(k) Issuance and Sale of Restricted Subsidiary Capital Stock.
Sell, and will not permit any of its Restricted Subsidiaries, directly
or indirectly, to issue or sell, any shares of Capital Stock of a
Restricted Subsidiary (including options, warrants or other rights to
purchase shares of such Capital Stock) except
(i) to the Borrower or a Wholly Owned Restricted
Subsidiary;
(ii) issuances of director's qualifying shares or
sales to foreign nationals of shares of Capital Stock of
foreign Restricted Subsidiaries of the Borrower, to the extent
required by applicable law;
(iii) if, immediately after giving effect to such
issuance or sale, such Restricted Subsidiary would no longer
constitute a Restricted Subsidiary and any Investment in such
Person remaining after giving effect to such issuance or sale
would have been permitted to be made under Section 5.02(f) if
made on the date of such issuance or sale; or
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(iv) issuances or sales of Common Stock of a
Restricted Subsidiary, provided that the Borrower or such
Restricted Subsidiary applies the Net Cash Proceeds, if any,
of any such sale in compliance with Section 5.02(e).
(l) Issuance of Restricted Subsidiary Guarantees. Permit any
of its Restricted Subsidiaries to Guarantee any Indebtedness of the
Borrower which is pari passu with or subordinate in right of payment to
the Advances ("GUARANTEED INDEBTEDNESS"), unless
(i) such Restricted Subsidiary simultaneously
executes and delivers a Guarantee (a "RESTRICTED SUBSIDIARY
GUARANTEE") of the Obligations of the Borrower under the
Bridge Documents by such Restricted Subsidiary and
(ii) such Restricted Subsidiary waives and will not
in any manner whatsoever claim or take the benefit or
advantage of, any rights of reimbursement, indemnity or
subrogation or any other rights against the Borrower or any of
the Borrower's other Restricted Subsidiaries as a result of
any payment by such Restricted Subsidiary under its Restricted
Subsidiary Guarantee;
provided that this paragraph shall not be applicable to any Guarantee
of any Restricted Subsidiary that existed at the time such Person
became a Restricted Subsidiary and was not Incurred in connection with,
or in contemplation of, such Person becoming a Restricted Subsidiary.
If the Guaranteed Indebtedness is (A) pari passu with the
Advances, then the Guarantee of such Guaranteed Indebtedness shall be
pari passu with, or subordinated to, the Restricted Subsidiary
Guarantee or (B) subordinated to the Advances, then the Guarantee of
such Guaranteed Indebtedness shall be subordinated to the Restricted
Subsidiary Guarantee at least to the extent that the Guaranteed
Indebtedness is subordinated to the Advances.
Notwithstanding the foregoing, any Restricted Subsidiary
Guarantee by a Restricted Subsidiary may provide by its terms that it
shall be automatically and unconditionally released and discharged upon
(i) any sale, exchange or transfer, to any Person not an Affiliate of
the Borrower, of all of the Borrower's and each Restricted Subsidiary's
Capital Stock in, or all or substantially all the assets of, such
Restricted Subsidiary (which sale, exchange or transfer is not
prohibited by this Agreement) or (ii) the release or discharge of the
Guarantee which resulted in the creation of such Restricted Subsidiary
Guarantee, except a discharge or release by or as a result of payment
under such Guarantee.
SECTION 5.03. Reporting Requirements. Promptly, so long as any
Advance or any other Obligation of the Borrower under any Bridge Document shall
remain unpaid or any Lender shall have any Commitment hereunder, the Borrower
will furnish (x) to the Administrative Agent and the Lenders holding Exchange
Securities issued pursuant to the Exchange Indenture in accordance with Section
2.03:
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(a) Default Notice, Etc. In the event that any Officer of the
Borrower becomes aware of any Default or Event of Default, promptly an
Officers' Certificate specifying such Default or Event of Default.
(b) Compliance Certificate. Within 90 days after the end of
each fiscal year, an Officers' Certificate stating whether or not the
signers know of any Default or Event of Default that occurred during
such fiscal year and, that a review has been conducted of the
activities of the Borrower and the Restricted Subsidiaries and the
Borrower's and the Restricted Subsidiaries' performance under this
Agreement and that the Borrower, as applicable, has complied with all
conditions and covenants under this Agreement. If any of the Officers
of the Borrower signing such certificate has knowledge of such a
Default or Event of Default, the certificate shall describe any such
Default or Event of Default and its status.
(c) Commission Reports and Reports to Lenders. All such
reports and other information required to be filed by Section 13(a) or
15(d) under the Exchange Act, regardless of whether such Sections of
the Exchange Act are applicable to the Borrower. The Borrower shall
supply to the Administrative Agent and each Lender or shall supply to
the Administrative Agent for forwarding to each such Lender, without
cost to such Lender, copies of such reports and other information
within 15 days after the date it would have been required to file such
reports or other information with the Securities and Exchange
Commission had it been subject to such Sections; provided, however,
that the copies of such reports mailed to Lender may omit exhibits
which the Borrower will supply to any Lender at such Lender's request.
and (y) to the Administrative Agent and the Lenders holding Exchange Advances
hereunder:
(a) Financial Statements.
(i) Annual Financials. As soon as available, but in any event
within 95 days after the end of each fiscal year of the Borrower, a
copy of the audited consolidated balance sheet of the Borrower and its
consolidated Subsidiaries as at the end of such year and the related
audited consolidated statements of income and of cash flows for such
year, setting forth in each case in comparative form the figures for
the previous year, reported on without a "going concern" or like
qualification or exception, or qualification arising out of the scope
of the audit, by Ernst &Young LLP or other independent certified public
accountants of nationally recognized standing.
(ii) Quarterly Financials. As soon as available, but in any
event not later than 50 days after the end of each of the first three
quarterly periods of each fiscal year of the Borrower, the unaudited
consolidated balance sheet of the Borrower and its consolidated
Subsidiaries as at the end of such quarter and the related unaudited
consolidated statements of income and of cash flows for such quarter
and the portion of the fiscal year of the Borrower through the end of
such quarter, setting forth in each case in comparative form the
figures for the previous year, certified by a Responsible Officer as
being fairly stated in all material respects (subject to normal
year-end adjustments).
All such financial statements, together with the notes thereto, shall
be complete and correct in all material respects and shall be prepared
in reasonable detail and in accordance with GAAP applied consistently
throughout the periods reflected therein
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145
and with prior periods (except as approved by such accountants or
officer, as the case may be, and disclosed therein).
Any financial statement required to be delivered pursuant to this
Section 5.03(y)(a) shall be deemed to have been delivered on the date
on which the Borrower posts such financial statement on its website on
the Internet at ▇▇▇.▇▇▇▇▇▇▇▇▇.▇▇▇ or when such financial statement is
posted on the SEC's website on the internet at ▇▇▇.▇▇▇.▇▇▇; provided
that the Borrower shall give notice of any such posting to the
Administrative Agent (who shall then give notice of any such posting to
the Lenders); provided, further, that the Borrower shall deliver paper
copies of any financial statement referred to in this Section
5.03(y)(a) to the Administrative Agent if the Administrative Agent or
any Lender requests the Borrower to deliver such paper copies until
written notice to cease delivering such paper copies is given by the
Administrative Agent.
(b) Certificates; Other Information. (i) concurrently with the
delivery of the financial statements referred to in Section
5.03(y)(a)(i), a certificate of the independent certified public
accountants reporting on such financial statements stating that in
making the examination necessary therefor no knowledge was obtained of
any Default, except as specified in such certificate,
(ii) concurrently with the delivery of any financial
statements pursuant to Section 5.03(y)(a), (A) a certificate of a
Responsible Officer stating that, to the best of each such Responsible
Officer's knowledge, the Borrower during such period has observed or
performed in all material respects all of its covenants and other
agreements, and satisfied every condition, contained in this Agreement
and the other Loan Documents to which it is a party to be observed,
performed or satisfied by it, and that such Responsible Officer has
obtained no knowledge of any Default except as specified in such
certificate and (B) in the case of quarterly or annual financial
statements, a Compliance Certificate containing all information and
calculations necessary for determining compliance by the Borrower and
its Subsidiaries with the provisions of this Agreement referred to
therein as of the last day of the fiscal quarter or fiscal year of the
Borrower, as the case may be, including, without limitation, a report
as to the status of availability of the exception to the indebtedness
covenant contained in the Existing High Yield Indenture (including a
statement as to the amount of the Advances outstanding under this
Agreement that are permitted to be outstanding under the exception
contained in Section 4.03(a)(vii) of the Existing High Yield Indenture
relating to the acquisition of certain assets).
(iii) as soon as available, and in any event no later than 50
days after the end of each fiscal year of the Borrower, a detailed
consolidated budget for the following fiscal year of the Borrower
(including a projected consolidated balance sheet of the Borrower and
its Subsidiaries as of the end of the following fiscal year of the
Borrower, the related consolidated statements of projected cash flow
and projected income and a description of the underlying assumptions
applicable thereto), and, as soon as available, significant revisions,
if any, of such budget and projections with respect to such fiscal year
of the Borrower (collectively, the "PROJECTIONS"), which Projections
shall in each case be accompanied by a certificate of a Responsible
Officer stating that such Projections are based on reasonable
estimates, information and assumptions believed by the Borrower to be
reasonable at the time made and that such Responsible Officer has no
reason to believe that such Projections are incorrect
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or misleading in any material respect (it being recognized by the
Lenders that such opinions, projections and forecasts as to any future
event or state of affairs are not to be viewed as factual information
and that actual results during the period or periods covered by any
such opinion, projection or forecast may differ from the opinions and
projected or forecast results).
(iv) no later than 10 Business Days prior to the effectiveness
thereof, copies of substantially final drafts of any proposed
amendment, supplement, waiver or other modification with respect to the
Existing High Yield Indenture.
(v) within five days after the same are sent, copies of all
financial statements and reports that the Borrower sends to the holders
of any class of its debt securities or public equity securities and,
within five days after the same are filed, copies of all financial
statements and reports that the Borrower may make to, or file with, the
SEC.
(vi) promptly, such additional financial and other information
as any Lender may from time to time reasonably request through the
Administrative Agent.
Any delivery required to be made pursuant to Section 5.03(y)(b)(v)
shall be deemed to have been made on the date on which the Borrower
posts such delivery on its website on the internet at ▇▇▇.▇▇▇▇▇▇▇▇▇.▇▇▇
or when such delivery is posted on the SEC's website on the internet at
▇▇▇.▇▇▇.▇▇▇; provided that the Borrower shall give notice of any such
posting to the Administrative Agent (who shall then give notice of any
such posting to the Lenders); provided, further, that the Borrower
shall deliver paper copies of any delivery referred to in Section
5.03(y)(b)(v) to the Administrative Agent if the Administrative Agent
or any Lender requests the Borrower to deliver such paper copies until
written notice to cease delivering such paper copies is given by the
Administrative Agent.
(c) Notices. Promptly notice of:
(i) the occurrence of any Default or Event of Default.
(ii) any (A) default or event of default under any Contractual
Obligation of the Borrower or any of its Subsidiaries or (B)
litigation, investigation or proceeding that may exist at any time
between the Borrower or any of its Subsidiaries and any Governmental
Authority, that in either case, if not cured or if adversely
determined, as the case may be, could reasonably be expected to have a
Material Adverse Effect.
(iii) any litigation or proceeding affecting the Borrower or
any of its Subsidiaries (A) in which the amount involved is $5,000,000
or more and not covered by insurance, (B) in which injunctive or
similar relief is sought or (C) which relates to any Bridge Document.
(iv) the following events, and in any event within 30 days
after a Responsible Officer knows or has reason to know thereof: (A)
the occurrence of any Reportable Event with respect to any Plan, a
failure by the Borrower or any Commonly Controlled Entity to make any
required contribution to a Plan, the creation of any Lien in favor of
the PBGC or a Plan or any withdrawal from, or the termination,
Reorganization or Insolvency of, any Multiemployer Plan or (B) the
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institution of proceedings or the taking of any other action by the
PBGC or the Borrower or any Commonly Controlled Entity or any
Multiemployer Plan with respect to the withdrawal from, or the
termination, Reorganization or Insolvency of, any Plan; provided that
in the case of either clause (A) or (B) above, such event or events
could reasonably be expected to result in liability in excess of
$5,000,000.
(v) any development or event that has had or could reasonably
be expected to have a Material Adverse Effect.
Each notice pursuant to this Section 5.03(y)(c) shall be accompanied by
a statement of a Responsible Officer setting forth details of the
occurrence referred to therein and stating what action the Borrower or
the relevant Subsidiary proposes to take with respect thereto.
SECTION 5.04. Financial Covenant. So long as any Callable
Advance or any other Obligation in respect of any Callable Advance under any
Bridge Document shall remain unpaid or any Lender shall have any Commitment
hereunder with respect to any Callable Advance the Borrower will not, at any
time, permit the Bank Consolidated Leverage Ratio as of the last day of any
fiscal quarter of the Borrower during any four quarter period ending during the
period from the Exchange Date to the Termination Date to exceed the Bank
Consolidated Leverage Ratio required to be maintained under this Agreement on
the date immediately preceding the consummation of the Exchange.
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