SUBSIDIARY GUARANTY Dated as of July 20, 2011 From THE GUARANTORS NAMED HEREIN and THE ADDITIONAL GUARANTORS REFERRED TO HEREIN as Guarantors in favor of THE SECURED PARTIES REFERRED TO IN THE CREDIT AGREEMENT REFERRED TO HEREIN
Exhibit 10.2
EXECUTION VERSION
Dated as of July 20, 2011
From
THE GUARANTORS NAMED HEREIN
and
THE ADDITIONAL GUARANTORS REFERRED TO HEREIN
as Guarantors
in favor of
THE SECURED PARTIES REFERRED TO IN
THE CREDIT AGREEMENT REFERRED TO HEREIN
TABLE OF CONTENTS
| Section 1. |
Guaranty; Limitation of Liability. | 4 | ||||
| Section 4. |
Subrogation | 5 | ||||
| Section 5. |
Payments | 5 | ||||
| Section 6. |
Covenants. | 6 | ||||
| Section 8. |
Guaranty Supplements | 6 | ||||
| Section 9. |
Notices, Etc. | 7 | ||||
| Section 10. |
No Waiver; Remedies. | 7 | ||||
| Section 11. |
Right of Set-off. | 7 | ||||
| Section 12. |
Continuing Guaranty; Assignments under the Credit Agreement. | 7 | ||||
| Section 13. |
Execution in Counterparts. | 8 | ||||
| Section 14. |
GOVERNING LAW. | 8 | ||||
| Section 15. |
WAIVER OF JURY TRIAL | 8 | ||||
| Section 16. |
Jurisdiction; Consent to Service of Process. | 8 |
Exhibit A - Guaranty Supplement
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SUBSIDIARY GUARANTY dated as of July 20, 2011 (the “Guaranty”) made by the Persons listed on the signature pages hereof under the caption “Subsidiary Guarantors” and the Additional Guarantors (as defined in Section 8) (such Persons so listed and the Additional Guarantors being, collectively, the “Guarantors” and, individually, a “Guarantor”) in favor of the Secured Parties (as defined in the Credit Agreement referred to below).
PRELIMINARY STATEMENT
WHEREAS, WMG Acquisition Corp., a Delaware corporation (the “Borrower”) and a direct or indirect parent of each Guarantor, will, on the date hereof, enter into a Credit Agreement (as amended, amended and restated, supplemented or otherwise modified from time to time, the “Credit Agreement”) among the Borrower, each Lender from time to time party thereto (collectively, the “Lenders”) and Credit Suisse AG as administrative agent (the “Administrative Agent”). Capitalized terms used herein without definition shall have the meaning assigned thereto in the Credit Agreement.
WHEREAS, each Guarantor may receive, directly or indirectly, a portion of the proceeds of the Loans under the Credit Agreement and will derive substantial direct and indirect benefits from the transactions contemplated by the Loan Documents and the Secured Hedge Agreements (together with all instruments, agreements or other documents evidencing Cash Management Obligations, the “Finance Documents”). It is a condition to the effectiveness of the Credit Agreement and the entry by the Hedge Banks into Secured Hedge Agreements from time to time that each Guarantor shall have executed and delivered this Guaranty.
NOW, THEREFORE, in consideration of the premises and in order to induce the Lenders to enter into the Credit Agreement and the Hedge Banks to enter into Secured Hedge Agreements from time to time, each Guarantor, jointly and severally with each other Guarantor, hereby agrees as follows:
Section 1. Guaranty; Limitation of Liability. (a) Each Guarantor hereby, jointly and severally, absolutely, unconditionally and irrevocably guarantees to the Administrative Agent, for the benefit of the applicable Secured Parties, the punctual payment, when due and payable, whether at scheduled maturity or by acceleration, demand or otherwise, of all Obligations of each Loan Party and each other Restricted Subsidiary that is an obligor with respect to the Cash Management Obligations (each, an “Obligor”) now or hereafter existing (such Obligations being the “Guaranteed Obligations”). Without limiting the generality of the foregoing, each Guarantor’s liability shall extend to all amounts that constitute part of the Guaranteed Obligations and would be owed by any other Obligor to any Secured Party under or in respect of the Finance Documents but for the fact that they are unenforceable or not allowable due to the existence of a bankruptcy, reorganization or similar proceeding involving such other Obligor.
(b) Each Guarantor, and by its acceptance of this Guaranty, the Administrative Agent and each other Secured Party, hereby confirms that it is the intention of all such Persons that this Guaranty and the Guaranteed Obligations of each Guarantor hereunder not constitute a fraudulent transfer or conveyance for purposes of, and not otherwise be in violation of, Debtor Relief Laws, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any similar foreign, federal or state law to the extent applicable to this Guaranty and the Guaranteed Obligations of each Guarantor hereunder. To effectuate the foregoing intention, the Administrative Agent, the other Secured Parties and the Guarantors hereby irrevocably agree that the Guaranteed Obligations of each Guarantor under this Guaranty at any time shall be limited to the maximum amount that can be guaranteed by such Guarantor under applicable law and that will otherwise result in the Guaranteed Obligations of such Guarantor under this Guaranty not constituting a fraudulent transfer or conveyance.
(c) Each Guarantor hereby unconditionally and irrevocably agrees that in the event any payment shall be required to be made to any Secured Party under this Guaranty, such Guarantor will contribute, to the maximum extent permitted by law, such amounts to each other Guarantor so as to maximize the aggregate amount paid to the Secured Parties under or in respect of the Finance Documents.
Section 2. Guaranty Absolute. Each Guarantor guarantees that the Guaranteed Obligations will be paid strictly in accordance with the terms of the Finance Documents. The Guaranteed Obligations of each Guarantor under or in respect of this Guaranty are independent of the Guaranteed Obligations or any other Obligations of any other Obligor under or in respect of the Finance Documents, and a separate action or actions may be brought and prosecuted against each Guarantor to enforce this Guaranty, irrespective of whether any action is brought against the Borrower or any other Obligor or whether the Borrower or any other Obligor is joined in any such action or actions. The liability of each Guarantor under this Guaranty shall be irrevocable, absolute and unconditional irrespective of, and each Guarantor hereby irrevocably waives, to the maximum extent permitted by applicable law, any defenses it may now have or hereafter acquire arising out of or in any way relating to, any or all of the following:
(a) any lack of validity or enforceability of any Finance Document or any agreement or instrument relating thereto;
(b) any change in the time, manner or place of payment of, or in any other term of, all or any of the Guaranteed Obligations or any other Obligations of any other Obligor under or in respect of the Finance Documents, or any other amendment or waiver of or any consent to or departure from any Finance Document, including, without limitation, any increase in the Guaranteed Obligations resulting from the extension of additional credit to any Obligor or any of its Subsidiaries or otherwise;
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(c) any taking, exchange, release or non-perfection of any Collateral or any other collateral, or any taking, release or amendment or waiver of, or consent to or departure from, any other guaranty, for all or any of the Guaranteed Obligations;
(d) any manner of application of Collateral or any other collateral, or proceeds thereof, to all or any of the Guaranteed Obligations, or any manner of sale or other disposition of any Collateral or any other collateral for all or any of the Guaranteed Obligations or any other Obligations of any Obligor under the Finance Documents or any other assets of any Obligor or any of its Subsidiaries;
(e) any change, restructuring or termination of the corporate structure or existence of any Obligor or any of its Subsidiaries;
(f) any failure of any Secured Party to disclose to any Obligor any information relating to the business, condition (financial or otherwise), operations, performance, properties or prospects of any other Obligor now or hereafter known to such Secured Party (each Guarantor waiving, to the maximum extent permitted under applicable law, any duty on the part of the Secured Parties to disclose such information);
(g) the failure of any other Person to execute or deliver this Guaranty, any Guaranty Supplement (as hereinafter defined) or any other guaranty or agreement or the release or reduction of liability of any Guarantor or other guarantor or surety with respect to the Guaranteed Obligations;
(h) any law, regulation or order now or hereafter in effect in any jurisdiction affecting any of such terms or the rights of any Secured Party with respect to the Finance Documents; or
(i) any other circumstance or any existence of or reliance on any representation by any Secured Party that might otherwise constitute a defense available to, or a discharge of, any Obligor or any other guarantor or surety (other than the payment in full in cash of the Guaranteed Obligations).
This Guaranty shall continue to be effective or be reinstated, as the case may be, if at any time any payment of any of the Guaranteed Obligations is rescinded or must otherwise be returned by any Secured Party or any other Person upon the insolvency, bankruptcy or reorganization of the Borrower or any other Obligor or otherwise, all as though such payment had not been made.
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Section 3. Waivers and Acknowledgments. (a) Each Guarantor hereby unconditionally and irrevocably waives, to the maximum extent permitted by applicable law, promptness, diligence, notice of acceptance, presentment, demand for performance, notice of nonperformance, default, acceleration, protest or dishonor and any other notice with respect to any of the Guaranteed Obligations and this Guaranty and any requirement that any Secured Party protect, secure, perfect or insure any Lien or any property subject thereto or exhaust any right or take any action against any Obligor or any other Person or any Collateral.
(b) Each Guarantor hereby unconditionally and irrevocably waives, to the maximum extent permitted by applicable law, any right to revoke this Guaranty and acknowledges that this Guaranty is continuing in nature and applies to all Guaranteed Obligations, whether existing now or in the future.
(c) Each Guarantor herby unconditionally and irrevocably waives, to the maximum extent permitted by applicable law, (i) any defense arising by reason of any claim or defense based upon an election of remedies by any Secured Party that in any manner impairs, reduces, releases or otherwise adversely affects the subrogation, reimbursement, exoneration, contribution or indemnification rights of such Guarantor or other rights of such Guarantor to proceed against any of the other Obligors, any other guarantor or any other Person or any Collateral and (ii) any defense based on any right of set-off or counterclaim against or in respect of the Guaranteed Obligations of such Guarantor hereunder.
(d) Each Guarantor acknowledges that the Administrative Agent may, in accordance with the Loan Documents, without notice to or demand upon such Guarantor and without affecting the liability of such Guarantor under this Guaranty, foreclose under any mortgage by nonjudicial sale, and each Guarantor hereby waives, to the maximum extent permitted by applicable law, any defense to the recovery by the Administrative Agent and the other Secured Parties against such Guarantor of any deficiency after such nonjudicial sale and any defense or benefits that may be afforded by applicable law.
(e) Each Guarantor hereby unconditionally and irrevocably waives, to the maximum extent permitted by applicable law, any duty on the part of any Secured Party to disclose to such Guarantor any matter, fact or thing relating to the business, condition (financial or otherwise), operations, performance, properties or prospects of any other Obligor or any of its Subsidiaries now or hereafter known by such Secured Party.
(f) Each Guarantor acknowledges that it will receive substantial direct and indirect benefits from the financing arrangements contemplated by the Finance Documents and that the waivers set forth in Section 2 and this Section 3 are knowingly made in contemplation of such benefits.
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Section 4. Subrogation. Each Guarantor hereby unconditionally and irrevocably agrees not to exercise any rights that it may now have or hereafter acquire against the Borrower or any other Obligor that arise from the existence, payment, performance or enforcement of such Guarantor’s Obligations under or in respect of this Guaranty or any other Finance Document, including, without limitation, any right of subrogation, reimbursement, exoneration, contribution or indemnification and any right to participate in any claim or remedy of any Secured Party against the Borrower or any other Obligor or any Collateral, whether or not such claim, remedy or right arises in equity or under contract, statute or common law, including, without limitation, the right to take or receive from the Borrower or any other Obligor, directly or indirectly, in cash or other property or by set-off or in any other manner, payment or security on account of such claim, remedy or right, unless and until (1) the payment in full in cash of such Guaranteed Obligations that are accrued and payable, other than obligations under Secured Hedge Agreements and Cash Management Obligations, (2) the termination or expiration (or the cash collateralizing or backstopping on terms agreed to by the Administrative Agent and the Issuing Bank) of all Letters of Credit and (3) the termination of all Commitments. If any amount shall be paid to any Guarantor in violation of the immediately preceding sentence at any time prior to (1) the payment in full in cash of such Guaranteed Obligations that are accrued and payable, other than obligations under Secured Hedge Agreements and Cash Management Obligations, (2) the termination or expiration (or the cash collateralizing or backstopping on terms agreed to by the Administrative Agent and the Issuing Bank) of all Letters of Credit and (3) the termination of all Commitments, such amount shall be received and held in trust for the benefit of the Secured Parties, shall be segregated from other property and funds of such Guarantor and shall forthwith be paid or delivered to the Administrative Agent in the same form as so received (with any necessary endorsement or assignment) to be credited and applied to the Guaranteed Obligations and all other amounts payable under this Guaranty, whether matured or unmatured, in accordance with the terms of the Finance Documents, or to be held as Collateral for any Guaranteed Obligations or other amounts payable under this Guaranty thereafter arising. Upon (1) the payment in full in cash of such Guaranteed Obligations that are accrued and payable, other than obligations under Secured Hedge Agreements and Cash Management Obligations, (2) the termination or expiration (or the cash collateralizing or backstopping on terms agreed to by the Administrative Agent and the Issuing Bank) of all Letters of Credit and (3) the termination of all Commitments, the Secured Parties will, at such Guarantor’s request and expense, execute and deliver to such Guarantor appropriate documents, without recourse and without representation or warranty, necessary to evidence the transfer by subrogation to such Guarantor of an interest in the Guaranteed Obligations resulting from such payment made by such Guarantor pursuant to this Guaranty.
Section 5. Payments. Any and all payments by any Guarantor under this Guaranty or any other Loan Document shall be made in accordance with the terms of the Credit Agreement.
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Section 6. Covenants. Each Guarantor covenants and agrees that, until (1) the payment in full in cash of such Guaranteed Obligations that are accrued and payable, other than obligations under Secured Hedge Agreements and Cash Management Obligations, (2) the termination or expiration (or the cash collateralizing or backstopping on terms agreed to by the Administrative Agent and the Issuing Bank) of all Letters of Credit and (3) the termination of all Commitments, such Guarantor will perform and observe, and cause each of its Subsidiaries to perform and observe, all of the terms, covenants and agreements set forth in the Loan Documents on its or their part to be performed or observed or that the Borrower has agreed to cause such Guarantor or such Subsidiaries to perform or observe.
Section 7. Amendments, Release of Guarantors, Etc. No amendment or waiver of any provision of this Guaranty and no consent to any departure by any Guarantor therefrom shall in any event be effective unless the same shall be in writing and signed by the Administrative Agent and the Guarantors (with the consent of the requisite number of Lenders specified in the Credit Agreement, if applicable) and then such waiver or consent shall be effective only in the specific instance and for the specific purpose for which given. A Guarantor shall automatically be released from this Guaranty and its obligations hereunder upon (i) the sale or other disposition of all of the Capital Stock of such Guarantor (to a Person other than the Borrower or a Subsidiary thereof) as permitted under the Credit Agreement or (ii) consummation of any other transaction or designation permitted by the Credit Agreement as a result of which such Guarantor becomes an Excluded Subsidiary; provided that no such release under this clause (ii) shall occur if such Guarantor is a guarantor in respect of any Related Debt. The Administrative Agent will, at such Guarantor’s expense, execute and deliver to such Guarantor such documents as such Guarantor shall reasonably request to evidence the release of such Guarantor from its Guarantee hereunder pursuant to this Section 7; provided that such Guarantor shall have delivered to the Administrative Agent a written request therefor and a certificate of such Guarantor to the effect that the transaction is in compliance with the Loan Documents. The Administrative Agent shall be authorized to rely on any such certificate without independent investigation.
Section 8. Guaranty Supplements. Upon the execution and delivery by any Person of a guaranty supplement in substantially the form of Exhibit A hereto (each, a “Guaranty Supplement”), (a) such Person shall be referred to as an “Additional Guarantor” and shall become and be a Guarantor hereunder, and each reference in this Guaranty to a “Guarantor” shall also mean and be a reference to such Additional Guarantor, and each reference in any other Loan Document to a “Guarantor” or “Subsidiary Guarantor” shall also mean and be a reference to such Additional Guarantor, and (b) each reference herein to “this Guaranty”, “hereunder”, “hereof” or words of like import referring to this Guaranty, and each reference in any other Loan Document to the “Guaranty” or the “Subsidiary Guaranty”, “thereunder”, “thereof” or words of like import referring to this Guaranty, shall mean and be a reference to this Guaranty as supplemented by such Guaranty Supplement.
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Section 9. Notices, Etc. All notices and other communications provided for hereunder shall be in writing (including e-mail or fax communication) and mailed, e-mailed, faxed or delivered to it, if to any Guarantor, addressed to it in care of the Borrower at the Borrower’s address specified in Section 10.01 of the Credit Agreement, if to any Hedge Bank, at its address specified in the Secured Hedge Agreement to which it is a party, if to the Administrative Agent, the Issuing Bank or any Lender, at its address specified in Section 10.01 of the Credit Agreement, or, as to any party, at such other address as shall be designated by such party in a written notice to each other party. All such notices and other communications shall be deemed to be given or made at such time as shall be set forth in Section 10.01 of the Credit Agreement. Delivery by a facsimile or electronic pdf copy of an executed counterpart of a signature page to any amendment or waiver of any provision of this Guaranty or of any Guaranty Supplement to be executed and delivered hereunder shall be effective as delivery of an original executed counterpart thereof.
Section 10. No Waiver; Remedies. No failure on the part of any Secured Party to exercise, and no delay in exercising, any right hereunder shall operate as a waiver thereof; nor shall any single or partial exercise of any right hereunder 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 11. Right of Set-off. If an Event of Default shall have occurred and be continuing, each Lender is hereby authorized at any time and from time to time, except to the extent prohibited by law, to set off and apply any and all deposits (general or special, time or demand, provisional or final) at any time held and other indebtedness at any time owing by such Lender to or for the credit or the account of any Guarantor against any of and all the Obligations of such Guarantor now or hereafter existing under this Guaranty or any other Loan Documents, irrespective of whether or not such Lender shall have made any demand under this Guaranty or such other Loan Document and although such obligations may be unmatured. The rights of each Lender under this Section 11 are in addition to other rights and remedies (including other rights of set-off) which such Lender may have.
Section 12. Continuing Guaranty; Assignments under the Credit Agreement. This Guaranty is a continuing guaranty and shall (a) remain in full force and effect until (i) the payment in full in cash of such Obligations that are accrued and payable, other than obligations under Secured Hedge Agreements and Cash Management Obligations, (ii) the termination or expiration (or the cash collateralizing or backstopping on terms agreed to by the Administrative Agent and the Issuing Bank) of all Letters of Credit and (iii) the termination of all Commitments, (b) be binding upon each Guarantor, its successors and assigns and (c) inure to the benefit of and be enforceable by the Secured
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Parties and their permitted successors, transferees and assigns. Without limiting the generality of clause (c) of the immediately preceding sentence, each Lender may assign or otherwise transfer all or any portion of its rights and obligations under the Credit Agreement as and to the extent permitted under Section 10.04 of the Credit Agreement. Except as expressly provided in the Credit Agreement, no Guarantor shall have the right to assign its rights hereunder or any interest herein without the prior written consent of the Administrative Agent and each Lender.
Section 13. Execution in Counterparts. This Guaranty and each amendment, waiver and consent with respect hereto may be executed in any number of counterparts and by different parties thereto 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 Guaranty by facsimile or electronically via pdf shall be effective as delivery of an original executed counterpart of this Guaranty.
Section 14. GOVERNING LAW. THIS GUARANTY AND ANY CLAIM, CONTROVERSY OR DISPUTE ARISING UNDER OR RELATED TO THIS GUARANTY (INCLUDING, WITHOUT LIMITATION, ANY CLAIMS SOUNDING IN CONTRACT LAW OR TORT LAW ARISING OUT OF THE SUBJECT MATTER HEREOF) SHALL BE CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY, THE LAWS OF THE STATE OF NEW YORK.
Section 15. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS GUARANTY OR ANY OF THE OTHER LOAN DOCUMENTS. EACH PARTY HERETO CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS GUARANTY AND THE OTHER LOAN DOCUMENTS, AS APPLICABLE, BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 15.
Section 16. Jurisdiction; Consent to Service of Process. (a) Each Guarantor hereby irrevocably and unconditionally submits, for itself and its property, to the exclusive jurisdiction of any New York State court or Federal court of the United States of America sitting in the Borough of Manhattan (together with any New York State court, the “New York Courts”), and any appellate court from any thereof, in any action or proceeding arising out of or relating to this Guaranty or the other Loan Documents (other than the Collateral Documents to the extent otherwise set forth therein), or for recognition
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or enforcement of any judgment, and each of the parties hereto hereby irrevocably and unconditionally agrees that all claims in respect of any such action or proceeding may be heard and determined in such New York State or, to the extent permitted by law, in such Federal court, provided that (i) if all such New York State courts decline jurisdiction over any Person, or decline (or in the case of the Federal court, lack) jurisdiction over any subject matter of such action or proceeding, a legal action or proceeding may be brought with respect thereto in another court having jurisdiction, and (ii) in the event that a legal action or proceeding is brought against any party hereto or involving any of its property or assets in another court (without any collusive assistance by such party or any of its Subsidiaries or Affiliates), such party shall be entitled to assert any claim or defense (including any claim or defense that this Section 16 would otherwise require to be asserted in a legal action or proceeding in a New York Court) in any such action or proceeding. 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 Guaranty shall affect (x) any right that the Administrative Agent, the Collateral Agent, the Issuing Bank or any Lender may otherwise have to bring any action or proceeding relating to this Guaranty or the other Loan Documents against the Guarantor or its properties in the courts of any jurisdiction, provided that any Guarantor shall be entitled to assert any claim or defense (including any claim or defense that this Section 16 would otherwise require to be asserted in a legal action or proceeding in a New York Court) in any such action or proceeding or (y) any party from bringing any legal action or proceeding in any jurisdiction for the recognition and enforcement of any judgment.
(a) Each Guarantor hereby irrevocably and unconditionally waives, to the fullest extent it may legally and effectively do so, any objection which it may now or hereafter have to the laying of venue of any suit, action or proceeding arising out of or relating to this Guaranty or the other Loan Documents 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.
(b) Each party to this Guaranty irrevocably consents to service of process in the manner provided for notices in Section 9. Nothing in this Guaranty will affect the right of any party to this Agreement to serve process in any other manner permitted by law.
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IN WITNESS WHEREOF, each Guarantor has caused this Guaranty to be duly executed and delivered by its officer thereunto duly authorized as of the date first above written.
| SUBSIDIARY GUARANTORS: |
| ROADRUNNER RECORDS, INC. |
| T.Y.S., INC. |
| THE ALL BLACKS U.S.A., INC. |
| X. X. XXXXXXX CO. |
| ATLANTIC RECORDING CORPORATION |
| ATLANTIC/MR VENTURES INC. |
| XXXXX MUSIC, INC. |
| BIG BEAT RECORDS INC. |
| CAFE AMERICANA INC. |
| XXXXXXXX & INTERSONG MUSIC GROUP (AUSTRALIA) LIMITED |
| XXXXXXXX AND INTERSONG MUSIC GROUP (GERMANY) INC. |
| XXXXXXXX MUSIC COMPANY, INC. |
| XXXX MUSIC, INC. |
| COTILLION MUSIC, INC. |
| CRK MUSIC INC. |
| E/A MUSIC, INC. |
| ELEKSYLUM MUSIC, INC. |
| ELEKTRA/CHAMELEON VENTURES INC. |
| ELEKTRA ENTERTAINMENT GROUP INC. |
| ELEKTRA GROUP VENTURES INC. |
| EN ACQUISITION CORP. |
| FHK, INC. |
| FIDDLEBACK MUSIC PUBLISHING COMPANY, INC. |
| FOSTER FREES MUSIC, INC. |
| INSIDE JOB, INC. |
| INSOUND ACQUISITION INC. |
| INTERSONG U.S.A., INC. |
| JADAR MUSIC CORP. |
| LEM AMERICA, INC. |
| LONDON-SIRE RECORDS INC. |
| MAVERICK PARTNER INC. |
[Signature Page to Guaranty]
| SUBSIDIARY GUARANTORS (cont-d): |
| XXXXXXXX MUSIC INC. |
| MIXED BAG MUSIC, INC. |
| MM INVESTMENT INC. |
| NC HUNGARY HOLDINGS INC. |
| NEW XXXXXXXX INC. |
| NONESUCH RECORDS INC. |
| NON-STOP MUSIC HOLDINGS, INC. |
| NVC INTERNATIONAL INC. |
| OCTA MUSIC, INC. |
| PEPAMAR MUSIC CORP. |
| REP SALES, INC. |
| RESTLESS ACQUISITION CORP. |
| REVELATION MUSIC PUBLISHING CORPORATION |
| RHINO ENTERTAINMENT COMPANY |
| RICK’S MUSIC INC. |
| RIGHTSONG MUSIC INC. |
| RODRA MUSIC, INC. |
| RYKO CORPORATION |
| RYKODISC, INC. |
| RYKOMUSIC, INC. |
| SEA CHIME MUSIC, INC. |
| SR/MDM VENTURE INC. |
| SUPER HYPE PUBLISHING, INC. |
| THE RHYTHM METHOD INC. |
| XXXXX BOY MUSIC, INC. |
| XXXXX XXXXXXX PUBLISHING GROUP, INC. |
| TW MUSIC HOLDINGS INC. |
| UNICHAPPELL MUSIC INC. |
| W.B.M. MUSIC CORP. |
| XXXXXX MUSIC INC. |
| WARNER ALLIANCE MUSIC INC. |
| WARNER BRETHREN INC. |
| WARNER BROS. MUSIC INTERNATIONAL INC. |
| WARNER BROS. RECORDS INC. |
| WARNER CUSTOM MUSIC CORP. |
| WARNER DOMAIN MUSIC INC. |
| WARNER MUSIC DISCOVERY INC. |
| WARNER MUSIC LATINA INC. |
| WARNER MUSIC SP INC. |
[Signature Page to Guaranty]
| SUBSIDIARY GUARANTORS (cont-d): |
| XXXXXX XXXXXXXXX MUSIC INC. |
| WARNER SPECIAL PRODUCTS INC. |
| WARNER STRATEGIC MARKETING INC. |
| WARNER/XXXXXXXX MUSIC (SERVICES), INC. |
| WARNER/XXXXXXXX MUSIC, INC. |
| WARNER/XXXXXXXX PRODUCTION MUSIC, INC. |
| WARNER-ELEKTRA-ATLANTIC CORPORATION |
| WARNERSONGS, INC. |
| WARNER-XXXXXXXXX PUBLISHING CORP. |
| WARPRISE MUSIC INC. |
| WB GOLD MUSIC CORP. |
| WB MUSIC CORP. |
| WBM/HOUSE OF GOLD MUSIC, INC. |
| WBR MANAGEMENT SERVICES INC. |
| WBR/QRI VENTURE, INC. |
| WBR/RUFFNATION VENTURES, INC. |
| WBR/SIRE VENTURES INC. |
| WEA EUROPE INC. |
| WEA INC. |
| WEA INTERNATIONAL INC. |
| WEA MANAGEMENT SERVICES INC. |
| WIDE MUSIC, INC. |
| WMG MANAGEMENT SERVICES INC. |
| ASYLUM RECORDS LLC |
| ATLANTIC MOBILE LLC |
| ATLANTIC PRODUCTIONS LLC |
| ATLANTIC SCREAM LLC |
| ATLANTIC/143 L.L.C. |
| BB INVESTMENTS LLC |
| BULLDOG ENTERTAINMENT GROUP LLC |
| BULLDOG ISLAND EVENTS LLC |
| BUTE SOUND LLC |
| CHORUSS LLC |
| CORDLESS RECORDINGS LLC |
| EAST WEST RECORDS LLC |
| FBR INVESTMENTS LLC |
| FOZ MAN MUSIC LLC |
| FUELED BY RAMEN LLC |
[Signature Page to Guaranty]
| SUBSIDIARY GUARANTORS (cont-d): |
| LAVA RECORDS LLC |
| LAVA TRADEMARK HOLDING COMPANY LLC |
| MADE OF STONE LLC |
| PENALTY RECORDS, LLC |
| PERFECT GAME RECORDING COMPANY LLC |
| RHINO NAME & LIKENESS HOLDINGS, LLC |
| RHINO/FSE HOLDINGS, LLC |
| T-BOY MUSIC, LLC |
| T-GIRL MUSIC, LLC |
| THE BIZ LLC |
| XXXXX.XXX LLC |
| WARNER MUSIC DISTRIBUTION LLC |
| WMG TRADEMARK HOLDING COMPANY LLC |
| ALTERNATIVE DISTRIBUTION ALLIANCE |
| MAVERICK RECORDING COMPANY |
| J. RUBY PRODUCTIONS, INC. |
| SIX-FIFTEEN MUSIC PRODUCTIONS, INC. |
| XXXXX-XXXXXXXX, INC. |
| ARTIST ARENA LLC |
| ATLANTIC PIX LLC |
| FERRET MUSIC HOLDINGS LLC |
| FERRET MUSIC LLC |
| FERRET MUSIC MANAGEMENT LLC |
| FERRET MUSIC TOURING LLC |
| P & C PUBLISHING LLC |
| WARNER MUSIC NASHVILLE LLC |
| By: /s/ Xxxx Xxxxxxxx |
| Name: Xxxx Xxxxxxxx |
| Title: Vice President & Secretary of each of the above named entities listed under the heading Guarantors and signing this agreement in such capacity on behalf of each such entity |
[Signature Page to Guaranty]
| SUBSIDIARY GUARANTORS (cont-d): |
| XXXXX-XXXXXXXX, INC. |
| ARTIST ARENA LLC |
| ATLANTIC PIX LLC |
| FERRET MUSIC HOLDINGS LLC |
| FERRET MUSIC LLC |
| FERRET MUSIC MANAGEMENT LLC |
| FERRET MUSIC TOURING LLC |
| P & C PUBLISHING LLC |
| WARNER MUSIC NASHVILLE LLC |
| By: /s/ Xxxx Xxxxxxxx |
| Name: Xxxx Xxxxxxxx |
| Title: Vice President & Secretary of each of the above named entities listed under the heading Guarantors and signing this agreement in such capacity on behalf of each such entity |
[Signature Page to Guaranty]
| SUBSIDIARY GUARANTORS (cont-d): |
| WARNER MUSIC INC. |
| By: /s/ Xxxx Xxxxxxxx |
| Name: Xxxx Xxxxxxxx |
| Title: Executive Vice President & Secretary |
| 615 MUSIC LIBRARY, LLC |
| By: Six-Fifteen Music Productions, Inc., its Sole Member |
| By: /s/ Xxxx Xxxxxxxx |
| Name: Xxxx Xxxxxxxx |
| Title: Vice President & Secretary |
| ARTIST ARENA INTERNATIONAL, LLC |
| By: Artist Arena LLC, its Member |
| By: /s/ Xxxx Xxxxxxxx |
| Name: Xxxx Xxxxxxxx |
| Title: Vice President & Secretary |
[Signature Page to Guaranty]
| SUBSIDIARY GUARANTORS (cont-d): |
| NON-STOP CATACLYSMIC MUSIC, LLC |
| NON-STOP INTERNATIONAL PUBLISHING, LLC |
| By: Non-Stop Music Holdings, Inc., its Manager |
| By: /s/ Xxxx Xxxxxxxx |
| Name: Xxxx Xxxxxxxx |
| Title: Vice President & Secretary |
| NON-STOP MUSIC LIBRARY, LC |
| NON-STOP MUSIC PUBLISHING, LLC |
| NON-STOP OUTRAGEOUS PUBLISHING, LLC |
| NON-STOP PRODUCTIONS, LLC |
| By: Non-Stop Music Holdings, Inc., their Manager |
| By: /s/ Xxxx Xxxxxxxx |
| Name: Xxxx Xxxxxxxx |
| Title: Vice President & Secretary |
| WMG ARTIST BRAND LLC |
| By: Warner Music Inc., its Member |
| By: /s/ Xxxx Xxxxxxxx |
| Name: Xxxx Xxxxxxxx |
| Title: Executive Vice President & Secretary |
[Signature Page to Guaranty]
Exhibit A
To The
FORM OF SUBSIDIARY GUARANTY SUPPLEMENT
Credit Suisse AG, as Administrative Agent
Eleven Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
RE: Credit Agreement dated as of July 20, 2011 among WMG Acquisition Corp. (the “Company”), each Lender from time to time party thereto and Credit Suisse AG as administrative agent (the “Administrative Agent”).
Ladies and Gentlemen:
Reference is made to the above-captioned Credit Agreement and to the Subsidiary Guaranty referred to therein (such Subsidiary Guaranty, as in effect on the date hereof and as it may hereafter be amended, supplemented or otherwise modified from time to time, together with this Subsidiary Guaranty Supplement (the “Guaranty Supplement”), being the “Subsidiary Guaranty”). The capitalized terms defined in the Subsidiary Guaranty or in the Credit Agreement and not otherwise defined herein are used herein as therein defined.
Section 1. Guaranty; Limitation of Liability. (a) The undersigned hereby, jointly and severally with the other Guarantors, absolutely, unconditionally and irrevocably guarantees to the Administrative Agent, for the benefit of the applicable Secured Parties (as defined below), the punctual payment, when due and payable, whether at scheduled maturity or by acceleration, demand or otherwise, of all Obligations of each other Obligor now or hereafter existing (such Obligations being the “Guaranteed Obligations”). Without limiting the generality of the foregoing, the undersigned’s liability shall extend to all amounts that constitute part of the Guaranteed Obligations and would be owed by any other Obligor to any Secured Party under or in respect of the Finance Documents but for the fact that they are unenforceable or not allowable due to the existence of a bankruptcy, reorganization or similar proceeding involving such other Obligor.
(b) The undersigned, and by its acceptance of this Guaranty Supplement, the Administrative Agent and each other Secured Party, hereby confirms that it is the intention of all such Persons that this Guaranty Supplement, the Subsidiary Guaranty and the Guaranteed Obligations of the undersigned hereunder and thereunder not constitute a fraudulent transfer or conveyance for purposes of, and not otherwise be in violation of, Debtor Relief Laws, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any similar foreign, federal or state law to the extent applicable to this Guaranty Supplement, the Subsidiary Guaranty and the Guaranteed Obligations of the undersigned hereunder and thereunder. To effectuate the foregoing intention, the Administrative Agent, the other Secured Parties and the undersigned hereby irrevocably agree that the Guaranteed Obligations of the undersigned under this Guaranty
Supplement and the Subsidiary Guaranty at any time shall be limited to the maximum amount that can be guaranteed by such Guarantor under the applicable law and that will otherwise result in the Guaranteed Obligations of the undersigned under this Guaranty Supplement and the Subsidiary Guaranty not constituting a fraudulent transfer or conveyance.
(c) The undersigned hereby unconditionally and irrevocably agrees that in the event any payment shall be required to be made to any Secured Party under this Guaranty Supplement and the Guaranty, the undersigned will contribute, to the maximum extent permitted by law, such amounts to each other Guarantor so as to maximize the aggregate amount paid to the Secured Parties under or in respect of the Finance Documents.
Section 2. Obligations Under the Guaranty. The undersigned hereby agrees, as of the date first above written, to be bound as a Guarantor by all of the terms and conditions of the Subsidiary Guaranty to the same extent as each of the other Guarantors thereunder. The undersigned further agrees, as of the date first above written, that each reference in the Subsidiary Guaranty to an “Additional Guarantor” or a “Guarantor” shall also mean and be a reference to the undersigned, and each reference in any other Loan Document to a “Subsidiary Guarantor”, a “Loan Party” or an “Obligor” shall also mean and be a reference to the undersigned.
Section 3. Electronic Delivery. Delivery of an executed counterpart of a signature page to this Guaranty Supplement by facsimile or electronically via pdf shall be effective as delivery of an original executed counterpart of this Guaranty Supplement.
Section 4. GOVERNING LAW. THIS GUARANTY SUPPLEMENT AND ANY CLAIM, CONTROVERSY OR DISPUTE ARISING UNDER OR RELATED TO THIS GUARANTY SUPPLEMENT AND THE SUBSIDIARY GUARANTY (INCLUDING, WITHOUT LIMITATION, ANY CLAIMS SOUNDING IN CONTRACT LAW OR TORT LAW ARISING OUT OF THE SUBJECT MATTER HEREOF) SHALL BE CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY, THE LAWS OF THE STATE OF NEW YORK.
Section 5. WAIVER OF JURY TRIAL. THE UNDERSIGNED HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS GUARANTY SUPPLEMENT OR ANY OF THE OTHER LOAN DOCUMENTS. EACH PARTY HERETO CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS GUARANTY
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SUPPLEMENT AND THE OTHER LOAN DOCUMENTS, AS APPLICABLE, BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 5.
Section 6. Jurisdiction; Consent to Service of Process. (a) The undersigned hereby irrevocably and unconditionally submits, for itself and its property, to the exclusive jurisdiction of any New York State court or Federal court of the United States of America sitting in the Borough of Manhattan (together with any New York State court, the “New York Courts”), and any appellate court from any thereof, in any action or proceeding arising out of or relating to this Guaranty Supplement or the other Loan Documents (other than the Collateral Documents to the extent otherwise set forth therein), or for recognition or enforcement of any judgment, and each of the parties hereto hereby irrevocably and unconditionally agrees that all claims in respect of any such action or proceeding may be heard and determined in such New York State or, to the extent permitted by law, in such Federal court, provided that (i) if all such New York State courts decline jurisdiction over any Person, or decline (or in the case of the Federal court, lack) jurisdiction over any subject matter of such action or proceeding, a legal action or proceeding may be brought with respect thereto in another court having jurisdiction, and (ii) in the event that a legal action or proceeding is brought against any party hereto or involving any of its property or assets in another court (without any collusive assistance by such party or any of its Subsidiaries or Affiliates), such party shall be entitled to assert any claim or defense (including any claim or defense that this Section 6 would otherwise require to be asserted in a legal action or proceeding in a New York Court) in any such action or proceeding. The undersigned 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 Guaranty Supplement shall affect (x) any right that the Administrative Agent, the Collateral Agent, the Issuing Bank or any Lender may otherwise have to bring any action or proceeding relating to this Guaranty Supplement or the other Loan Documents against undersigned or its properties in the courts of any jurisdiction, provided that any Loan Party shall be entitled to assert any claim or defense (including any claim or defense that this Section 6 would otherwise require to be asserted in a legal action or proceeding in a New York Court) in any such action or proceeding or (y) any party from bringing any legal action or proceeding in any jurisdiction for the recognition and enforcement of any judgment.
(b) The undersigned hereby irrevocably and unconditionally waives, to the fullest extent it may legally and effectively do so, any objection which it may now or hereafter have to the laying of venue of any suit, action or proceeding arising out of or relating to this Guaranty Supplement or the other Loan Documents in any New York State or Federal court. The undersigned 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.
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(c) The undersigned irrevocably consents to service of process in the manner provided for notices in Section 9 of the Subsidiary Guaranty. Nothing in this Guaranty Supplement will affect the right of any party to the Subsidiary Guaranty to serve process in any other manner permitted by law.
| Very truly yours, | ||
| [NAME OF ADDITIONAL GUARANTOR] | ||
| By: |
| |
| Title: | ||
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