CREDIT AGREEMENT Dated as of December 10, 2008 Among TIME WARNER CABLE INC., as Borrower, TIME WARNER INC. and the Other Lenders Party Hereto TIME WARNER INC., as Administrative Agent $1,535,000,000 TERM LOAN FACILITY
Exhibit 99.1
Dated as of December 10, 2008
Among
as Borrower,
TIME WARNER INC.
and the Other Lenders Party Hereto
TIME WARNER INC.,
as Administrative Agent
$1,535,000,000 TERM LOAN FACILITY
TABLE OF CONTENTS
Page | ||||||||||||
ARTICLE I DEFINITIONS | 1 | |||||||||||
SECTION 1.01. | Defined Terms |
1 | ||||||||||
SECTION 1.02. | Classification of Loans and Borrowings |
23 | ||||||||||
SECTION 1.03. | Terms Generally |
23 | ||||||||||
SECTION 1.04. | Accounting Terms; GAAP |
24 | ||||||||||
ARTICLE II THE CREDITS | 24 | |||||||||||
SECTION 2.01. | Commitments |
24 | ||||||||||
SECTION 2.02. | Loans and Borrowings |
24 | ||||||||||
SECTION 2.03. | Procedures for Borrowing |
25 | ||||||||||
SECTION 2.04. | [Intentionally left blank] |
26 | ||||||||||
SECTION 2.05. | [Intentionally left blank] |
26 | ||||||||||
SECTION 2.06. | Funding of Borrowings |
26 | ||||||||||
SECTION 2.07. | Interest Elections |
26 | ||||||||||
SECTION 2.08. | Termination and Reduction of Commitments |
28 | ||||||||||
SECTION 2.09. | Repayment of Loans; Evidence of Debt |
29 | ||||||||||
SECTION 2.10. | Prepayment of Loans |
29 | ||||||||||
SECTION 2.11. | Fees |
31 | ||||||||||
SECTION 2.12. | Interest |
31 | ||||||||||
SECTION 2.13. | Alternate Rate of Interest |
32 | ||||||||||
SECTION 2.14. | Increased Costs |
32 | ||||||||||
SECTION 2.15. | Break Funding Payments |
34 | ||||||||||
SECTION 2.16. | Taxes |
34 | ||||||||||
SECTION 2.17. | Payments Generally; Pro Rata Treatment; Sharing of Setoffs |
36 | ||||||||||
SECTION 2.18. | Mitigation Obligations; Replacement of Lenders |
37 | ||||||||||
ARTICLE III REPRESENTATIONS AND WARRANTIES | 38 | |||||||||||
SECTION 3.01. | Organization; Powers |
38 | ||||||||||
SECTION 3.02. | Authorization; Enforceability |
38 | ||||||||||
SECTION 3.03. | Governmental Approvals; No Conflicts |
38 | ||||||||||
SECTION 3.04. | Financial Condition; No Material Adverse Change |
39 | ||||||||||
SECTION 3.05. | Properties |
39 | ||||||||||
SECTION 3.06. | Litigation and Environmental Matters |
39 | ||||||||||
SECTION 3.07. | Compliance with Laws and Agreements |
40 | ||||||||||
SECTION 3.08. | Government Regulation; Margin Regulations |
40 | ||||||||||
SECTION 3.09. | Taxes |
40 | ||||||||||
SECTION 3.10. | ERISA |
40 | ||||||||||
SECTION 3.11. | Disclosure |
40 | ||||||||||
SECTION 3.12. | Solvency |
41 | ||||||||||
ARTICLE IV CONDITIONS | 41 | |||||||||||
SECTION 4.01. | Effective Date |
41 |
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Page | ||||||||||||
SECTION 4.02. | Borrowing Date |
42 | ||||||||||
SECTION 4.03. | Satisfaction of Conditions |
42 | ||||||||||
ARTICLE V AFFIRMATIVE COVENANTS | 43 | |||||||||||
SECTION 5.01. | Financial Statements and Other Information |
43 | ||||||||||
SECTION 5.02. | Notices of Material Events |
45 | ||||||||||
SECTION 5.03. | Existence; Conduct of Business |
46 | ||||||||||
SECTION 5.04. | Payment of Obligations |
46 | ||||||||||
SECTION 5.05. | Maintenance of Properties; Insurance |
46 | ||||||||||
SECTION 5.06. | Books and Records; Inspection Rights |
46 | ||||||||||
SECTION 5.07. | Compliance with Laws |
46 | ||||||||||
SECTION 5.08. | Use of Proceeds |
47 | ||||||||||
SECTION 5.09. | Fiscal Periods; Accounting |
47 | ||||||||||
SECTION 5.10. | Additional Guarantors |
47 | ||||||||||
ARTICLE VI NEGATIVE COVENANTS | 47 | |||||||||||
SECTION 6.01. | Consolidated Leverage Ratio |
47 | ||||||||||
SECTION 6.02. | Indebtedness |
47 | ||||||||||
SECTION 6.03. | Liens |
48 | ||||||||||
SECTION 6.04. | Mergers, Etc |
49 | ||||||||||
SECTION 6.05. | Investments |
50 | ||||||||||
SECTION 6.06. | Restricted Payments |
50 | ||||||||||
SECTION 6.07. | Transactions with Affiliates |
50 | ||||||||||
SECTION 6.08. | Unrestricted Subsidiaries |
50 | ||||||||||
ARTICLE VII EVENTS OF DEFAULT | 51 | |||||||||||
ARTICLE VIII THE ADMINISTRATIVE AGENT | 53 | |||||||||||
ARTICLE IX MISCELLANEOUS | 56 | |||||||||||
SECTION 9.01. | Notices |
56 | ||||||||||
SECTION 9.02. | Waivers; Amendments |
57 | ||||||||||
SECTION 9.03. | Expenses; Indemnity; Damage Waiver |
58 | ||||||||||
SECTION 9.04. | Successors and Assigns |
59 | ||||||||||
SECTION 9.05. | Survival |
62 | ||||||||||
SECTION 9.06. | Counterparts; Integration; Effectiveness |
62 | ||||||||||
SECTION 9.07. | Severability |
62 | ||||||||||
SECTION 9.08. | Right of Setoff |
63 | ||||||||||
SECTION 9.09. | Governing Law; Jurisdiction; Consent to Service of Process |
63 | ||||||||||
SECTION 9.10. | WAIVER OF JURY TRIAL |
63 | ||||||||||
SECTION 9.11. | Headings |
64 | ||||||||||
SECTION 9.12. | Confidentiality |
64 | ||||||||||
SECTION 9.13. | Acknowledgements |
64 | ||||||||||
SECTION 9.14. | Guarantee |
65 | ||||||||||
SECTION 9.15. | USA PATRIOT Act |
65 |
ii
SCHEDULES: | ||
Schedule 2.01 | Commitments; Address for Notices |
|
Schedule 2.03(A) | Borrowing Notice/Interest Election Notice/Prepayment Notice |
|
Schedule 2.03(B) | Authorized Account Numbers & Locations |
|
Schedule 6.08 | Unrestricted Subsidiaries |
|
Schedule 8 | List of Proper Persons |
|
EXHIBITS: | ||
Exhibit A | Form of Assignment and Acceptance |
|
Exhibit B | Form of Guarantee |
|
Exhibit C | Form of Applicable Margin Certificate |
|
Exhibit D | Form of Borrowing Request |
|
Exhibit E | Form of Pending Reinvestment Certificate |
iii
CREDIT AGREEMENT (as amended, supplemented or otherwise modified from time to time, this
“Agreement”) dated as of December 10, 2008, among TIME WARNER CABLE INC., a Delaware
corporation (together with any replacement or successor entity pursuant to Section 6.04, the
“Borrower”), TIME WARNER INC., a Delaware corporation (“Time Warner”) and the several banks
and other financial institutions from time to time parties to this Agreement (together with Time
Warner in its capacity as a lender, the “Lenders”) and Time Warner or such other entity
selected pursuant to Article VIII, as Administrative Agent.
WITNESSETH:
WHEREAS, the Borrower has entered into the Bridge Facility Credit Agreement (as defined
herein) pursuant to which it may borrow loans to fund a portion of a dividend to be declared and
paid by the Borrower to its shareholders in connection with the Separation of the Borrower from
Time Warner as described in the Separation Agreement (as defined herein);
WHEREAS, the Borrower has requested the Lenders to make loans to it in an aggregate amount of
up to $1,535,000,000 (as the same may be reduced as provided herein) if necessary to repay the
aggregate unpaid principal amount of loans outstanding under the Bridge Facility Credit Agreement
upon the Final Bridge Maturity Date (as defined herein), as more particularly described herein;
WHEREAS, the Final Bridge Maturity Date, and the date on which loans would be made hereunder,
is one year and 364 days after the date of borrowing under the Bridge Facility Credit Agreement;
WHEREAS, the Lenders are willing to make such loans on the terms and conditions contained
herein;
NOW THEREFORE, in consideration of the premises and mutual covenants contained herein, the
parties hereto agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01. Defined Terms . As used in this Agreement, the following terms have the meanings specified below:
“ABR” when used in reference to any Loan or Borrowing, refers to a Loan, or the Loans
comprising such Borrowing, bearing interest at a rate determined by reference to the Alternate Base
Rate.
“Adjusted Financial Statements” means, for any period, (a) the balance sheet of the
Borrower and the Restricted Subsidiaries (treating Unrestricted Subsidiaries as equity investments
of the Borrower to the extent that such Unrestricted Subsidiaries would not
otherwise be treated as equity investments of the Borrower in accordance with GAAP) as of the
end of such period and (b) the related statements of operations and stockholders equity for such
2
period and, if such period is not a fiscal year, for the then elapsed portion of the fiscal year
(treating Unrestricted Subsidiaries as equity investments of the Borrower to the extent that such
Unrestricted Subsidiaries would not otherwise be treated as equity investments of the Borrower in
accordance with GAAP).
“Adjusted LIBO Rate” means with respect to any Eurodollar Borrowing for any Interest
Period, an interest rate per annum (rounded upwards, if necessary, to the next Basis Point) equal
to (a) the LIBO Rate for such Interest Period multiplied by (b) the Statutory Reserve Rate.
“Administrative Agent” means Time Warner and any of its successors pursuant to Article
VIII.
“Administrative Questionnaire” means, with respect to each Lender, an Administrative
Questionnaire in a form supplied by the Administrative Agent.
“Affiliate” means, with respect to a specified Person, another Person that directly,
or indirectly through one or more intermediaries, Controls or is Controlled by or is under common
Control with the Person specified; provided, that two or more Persons shall not be deemed
Affiliates because an individual is a director and/or officer of each such Person.
“Alternate Base Rate” means, for any day, a rate per annum equal to the greater of (a)
the Prime Rate in effect on such day and (b) the Federal Funds Effective Rate in effect on such day
plus 1/2 of 1%. Any change in the Alternate Base Rate due to a change in the Prime Rate or the
Federal Funds Effective Rate shall be effective from and including the effective date of such
change in the Prime Rate or the Federal Funds Effective Rate, respectively.
“Applicable Margin” means, for any day, with respect to any Type of Loan, the
applicable rate per annum expressed in Basis Points based upon the senior unsecured long-term debt
credit rating (or an equivalent thereof) (in each case, a “Rating”) assigned by Moody’s and
S&P, respectively, to the senior unsecured long-term debt of the Borrower (the “Index
Debt”). The Applicable Margin for each category of Rating set forth in the grid below (a
“Category”) shall be set on the Borrowing Date, determined in the manner provided below and set
forth in a certificate substantially in the form of Exhibit C delivered by the Administrative Agent
to the Borrower prior to the Borrowing, which determination shall be conclusive absent manifest
error.
The Applicable Margin with respect to any Type of Loan for each such Category shall be set on
the Borrowing Date as follows:
(a) in the case of the LIBO Rate Applicable Margin, (i) for the Category that is in effect at
the Borrowing Date, at the higher of (x) the rate set forth in the grid below under the caption
“LIBO Rate Applicable Margin” for such Category and (y) the Average Borrowing Date CDS Price; and
(ii) for each other Category, at the rate set forth in the grid below plus, if subclause (y) in the
preceding clause (i) is greater than subclause (x) in the preceding clause (i), the amount of the
difference between subclause (y) and subclause (x); provided that in the case
of this clause (a) in no event shall the “LIBO Rate Applicable Margin” for any Category exceed
000 Xxxxx Xxxxxx; and
3
(b) in the case of the ABR Applicable Margin, at the higher of (i) the rate set forth below
under the caption “ABR Applicable Margin” for such Category and (ii) the rate described in clause
(a) above (including the proviso) for such Category, less 100 Basis Points.
LIBO Rate | ||||||||
Applicable | ABR Applicable | |||||||
Ratings S&P / Moody’s | Margin | Margin | ||||||
Category A
A / A2 |
150.0 | 50 | ||||||
Category B
A- / A3 |
162.5 | 62.5 | ||||||
Category C
BBB+ / Baa1 |
175 | 75 | ||||||
Category D
BBB / Baa2 |
200 | 100 | ||||||
Category E
BBB- / Baa3 |
237.5 | 137.5 | ||||||
Category F
Lower than BBB- /Baa3 |
275 | 175 |
For purposes of the foregoing, (i) if either Moody’s or S&P shall not have in effect a
relevant Rating (other than by reason of the circumstances referred to in clause (iii) of this
definition), then the Rating assigned by the other rating agency shall be used; (ii) if the Ratings
assigned by Moody’s and S&P for the Index Debt shall fall within different Categories, the
Applicable Margin shall be based on the higher of the two Ratings unless one of the two Ratings is
two or more Categories lower than the other, in which case the Applicable Margin shall be
determined by reference to the Category next below that of the higher of the two ratings; (iii) if
either rating agency (but not both) shall cease to assign a relevant Rating to the Index Debt
solely because the Borrower elects not to participate or otherwise cooperate in the ratings process
of such rating agency, the Applicable Margin shall not be less than that in effect immediately
prior to such rating agency’s Rating becoming unavailable; and (iv) if the relevant Ratings
assigned by Moody’s or S&P for the Index Debt shall be changed (other than as a result of a change
in the rating system of Moody’s or S&P), such change shall be effective as of the date on which it
is first announced by the applicable rating agency. Each change in the Applicable Margin shall
apply during the period commencing on the effective date of such change and ending on the date
immediately preceding the effective date of the next such change. If the rating system of Moody’s
or S&P shall change, or if either such rating agency shall cease to be in the business of rating
corporate debt obligations, the Borrower and the Administrative Agent (with
the consent of the Required Lenders) shall negotiate in good faith to amend this definition to
reflect such changed rating system or the unavailability of ratings from such rating agency and,
4
pending the effectiveness of any such amendment, the Applicable Margin shall be determined by
reference to the rating most recently in effect prior to such change or cessation.
“Applicable Percentage” means, with respect to any Lender (a) prior to the Borrowing
Date, the percentage of the sum total of the Commitments which is represented by such Lender’s
Commitments or (b) on or after the Borrowing Date, the percentage of the aggregate unpaid principal
amount of the Loans at such time which is represented by the aggregate unpaid principal amount of
Loans held by such Lender at such time.
“Approved Lender” has the meaning assigned to such term in the definition of “Cash
Equivalents”.
“Assignment and Acceptance” means an assignment and acceptance entered into by a
Lender and an assignee (with the consent of any party whose consent is required by Section 9.04),
and accepted by the Administrative Agent, in substantially the form of Exhibit A.
“Average Borrowing Date CDS Price” means the average price for a five-year credit
default swap of the Borrower for the thirty days preceding the Borrowing Date as provided by Markit
Group Limited through its website at approximately 11:00 a.m. New York time, one Business Day prior
to the Borrowing Date and obtained by the Administrative Agent from such website or, if Markit
Group Limited is not then providing such information, then as provided by such other widely
recognized source as selected by the Administrative Agent.
“Basis Point” means 1/100th of 1%.
“Board” means the Board of Governors of the Federal Reserve System of the United
States.
“Borrower” has the meaning set forth in the preamble hereto.
“Borrower Materials” has the meaning set forth in Section 5.01.
“Borrowing” means Loans of the same Type, made, converted or continued on the same
date and, in the case of Eurodollar Loans, as to which a single Interest Period is in effect.
“Borrowing Date” means the date on which the conditions specified in Section 4.02 are
satisfied (or waived in accordance with Section 9.02) and the Borrowing of the Loans occurs.
“Borrowing Request” means the request by the Borrower for a Borrowing in accordance
with Section 2.03 in substantially the form of Exhibit D.
“Bridge Asset Sale” means an event occurring during the term of the Bridge Facility
Credit Agreement that (i) would have constituted a Qualifying Asset Sale pursuant to the definition
thereof in the Bridge Facility Credit Agreement as in effect on the Effective Date and (ii) as to
which all amounts that would have constituted the Net Cash Proceeds thereof (as
defined in the Bridge Facility Credit Agreement as in effect on the Effective Date) have been,
as of the Bridge Facility Maturity Date either (x) applied to reduce the commitments available to
5
be drawn or prepay the loans outstanding under the Bridge Facility Credit Agreement or (y) expended
to acquire or repair assets useful in the Borrower’s or any Designated Subsidiaries’ business,
including without limitation, acquisitions, capital expenditures and other investments.
“Bridge Facility Borrowing Date” means the borrowing date of the loans under the
Bridge Facility Credit Agreement.
“Bridge Facility Credit Agreement” means the Credit Agreement, dated as of June 30,
2008, among the Borrower, the several banks and other financial institutions from time to time
parties thereto, The Royal Bank of Scotland plc and Fortis Bank SA/NV New York Branch, as Tranche I
co-syndication agents, BNP Paribas Securities Corp., The Bank of Tokyo-Mitsubishi UFJ, Ltd. New
York Branch, and Citibank, N.A. as Tranche II co-syndication agents, Mizuho Corporate Bank, Ltd.
and Sumitomo Mitsui Banking Corporation, as Tranche I co-documentation agents, Bank of America,
N.A. and Wachovia Bank, National Association as Tranche II co-documentation agents, and Deutsche
Bank AG New York Branch, as administrative agent.
“Bridge Facility Reduction Amount” means the aggregate amount of any mandatory or
voluntary commitment reductions that are required to be made or that are voluntarily made by the
Borrower in the committed amount available to be drawn under the Bridge Facility Credit Agreement
from the $2,070,000,000 available thereunder on the Effective Date (which reductions are made after
the Effective Date and prior to the Bridge Facility Borrowing Date) pursuant to the terms of the
Bridge Facility Credit Agreement as in effect on the Effective Date without giving effect to any
amendment, modification or waiver thereof having the effect of eliminating or reducing any such
reductions.
“Business Day” means any day that is not a Saturday, Sunday or other day on which
commercial banks in New York City are authorized or required by law to remain closed;
provided that, when used in connection with a Eurodollar Loan, the term “Business
Day” shall also exclude any day on which banks are not open for dealings in Dollar deposits in
the London interbank market.
“Capital Lease Obligations” of any Person means 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 the amount of
such obligations shall be the capitalized amount thereof determined in accordance with GAAP.
“Capital Stock” means, with respect to any Person, any and all shares, partnership
interests or other equivalents (however designated and whether voting or non-voting) of such
Person’s equity, whether outstanding on the date hereof or hereafter issued, and any and all
equivalent ownership interests in a Person (other than a corporation) and any and all rights,
warrants or options to purchase or acquire or exchangeable for or convertible into such shares,
partnership interests or other equivalents.
6
“Carryover Asset Sale” means an event occurring during the term of the Bridge Facility
Credit Agreement that (i) would have constituted a Qualifying Asset Sale pursuant to the definition
thereof in the Bridge Facility Credit Agreement as in effect on the Effective Date and (ii) as to
which all amounts that would have constituted the Net Cash Proceeds thereof (as defined in the
Bridge Facility Credit Agreement as in effect on the Effective Date) have not been, as of the
Bridge Facility Maturity Date either (x) applied to reduce the commitments available to be drawn or
prepay the loans outstanding under the Bridge Facility Credit Agreement or (y) expended to acquire
or repair assets useful in the Borrower’s or any Designated Subsidiaries’ business, including
without limitation, acquisitions, capital expenditures and other investments.
“Cash Equivalents” means (a) securities issued or directly and fully guaranteed or
insured by the United States or any agency or instrumentality thereof (provided that the
full faith and credit of the United States is pledged in support thereof) that (i) have maturities
of not more than six months from the date of acquisition thereof or (ii) are subject to a
repurchase agreement with an institution described in clause (b)(i) or (ii) below exercisable
within six months from the date of acquisition thereof, (b) U.S. Dollar-denominated and Eurodollar
time deposits, certificates of deposit and bankers’ acceptances of (i) any domestic commercial bank
of recognized standing having capital and surplus in excess of $500,000,000 or (ii) any bank whose
short-term commercial paper rating from S&P is at least A-2 or the equivalent thereof, from Xxxxx’x
is at least P-2 or the equivalent thereof or from Fitch is at least F-2 or the equivalent thereof
(any such bank, an “Approved Lender”), in each case with maturities of not more than six
months from the date of acquisition thereof, (c) commercial paper and variable and fixed rate notes
issued by any Lender or Approved Lender or by the parent company of any Lender or Approved Lender
and commercial paper, auction rate notes and variable rate notes issued by, or guaranteed by, any
industrial or financial company with a short-term commercial paper rating of at least A-2 or the
equivalent thereof by S&P or at least P-2 or the equivalent thereof by Moody’s or at least F-2 or
the equivalent thereof by Fitch, and in each case maturing within six months after the date of
acquisition thereof, (d) securities with maturities of one year or less from the date of
acquisition issued or fully guaranteed by any state, commonwealth or territory of the United
States, by any political subdivision or taxing authority of any such state, commonwealth or
territory or by any foreign government, the securities of which state, commonwealth, territory,
political subdivision, taxing authority or foreign government (as the case may be) are rated at
least A by S&P or A by Moody’s or A by Fitch, (e) 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, (f) tax-exempt
commercial paper of U.S. municipal, state or local governments rated at least A-2 or the equivalent
thereof by S&P or at least P-2 or the equivalent thereof by Moody’s or at least F-2 or the
equivalent thereof by Fitch and maturing within six months after the date of acquisition thereof,
(g) shares of money market mutual or similar funds sponsored by any registered broker dealer or
mutual fund distributor, (h) repurchase obligations entered into with any bank meeting the
qualifications of clause (b) above or any registered broker dealer whose short-term commercial
paper rating from S&P is at least A-2 or the equivalent thereof or from Xxxxx’x is at least P-2 or
the equivalent thereof or from Fitch is at least F-2 or the equivalent thereof, having a term of
not more than 30 days, with respect to securities issued or fully guaranteed or insured by
7
the United States government or residential whole loan mortgages, and (i) demand deposit
accounts maintained in the ordinary course of business.
“Category” has the meaning assigned to such term in the definition of Applicable
Margin.
“Change in Control” means (a) a Person or “group” (within the meaning of Section 13(d)
and 14(d) of the Exchange Act) acquiring or having beneficial ownership (it being understood that a
tender of shares or other equity interests shall not be deemed acquired or giving beneficial
ownership until such shares or other equity interests shall have been accepted for payment) of
securities (or options to purchase securities) having a majority or more of the ordinary voting
power of the Borrower (including options to acquire such voting power) or (b) persons who are
directors of the Borrower as of the date hereof or persons designated or approved by such directors
ceasing to constitute a majority of the board of directors of the Borrower.
“Change in Law” means (a) the adoption of any law, rule or regulation after the date
of this Agreement, (b) any change in any law, rule or regulation or in the interpretation or
application thereof by any Governmental Authority after the date of this Agreement or (c)
compliance by any Lender (or, for purposes of Section 2.14(b), by any lending office of such Lender
or by such Lender’s holding company, if any) with any request, guideline or directive of any
Governmental Authority made or issued after the date of this Agreement.
“Code” means the Internal Revenue Code of 1986, as amended from time to time.
“Commitment” means, with respect to each Lender, the commitment of such Lender to make
a Loan hereunder, as such commitment may be (a) reduced from time to time prior to the Borrowing
Date pursuant to Section 2.08 and (b) reduced or increased from time to time pursuant to
assignments by or to such Lender pursuant to Section 9.04. The amount of each Lender’s Commitment
as of the Effective Date is set forth on Schedule 2.01 under the heading “Commitment”, or in the
Assignment and Acceptance pursuant to which such Lender shall have assumed its Commitment, as
applicable. The original aggregate amount of Commitments is $1,535,000,000.
“Companies” means the Borrower and the Restricted Subsidiaries, collectively; and
“Company” means any of them.
“Conduit Lender” means any special purpose corporation organized and administered by
any Lender for the purpose of making Loans otherwise required to be made by such Lender and
designated by such Lender in a written instrument, subject to the consent of the Borrower (which
consent shall not be unreasonably withheld); provided, that the designation by any Lender
of a Conduit Lender shall not relieve the designating Lender of any of its obligations to fund a
Loan under this Agreement if, for any reason, its Conduit Lender fails to fund any such Loan, and
the designating Lender (and not the Conduit Lender) shall have the sole right and responsibility to
deliver all consents and waivers required or requested under this Agreement with respect to its
Conduit Lender, and provided, further, that no Conduit Lender shall (a) be entitled
to receive any greater amount pursuant to Section 2.14, 2.15, 2.16 or 9.03 than the
8
designating Lender would have been entitled to receive in respect of the Loans made by such
Conduit Lender or (b) be deemed to have any Commitment. The making of a Loan by a Conduit Lender
hereunder shall utilize the Commitment of a designating Lender to the same extent, and as if, such
Loan were made by such designating Lender.
“Consolidated EBITDA” means, for any period, Consolidated Net Income of the Borrower
and the Restricted Subsidiaries for such period plus, without duplication and to the extent
reflected as a charge in the statement of such Consolidated Net Income of the Borrower and the
Restricted Subsidiaries for such period, the sum of (a) income tax expense, (b) interest expense,
amortization or writeoff of debt discount and debt issuance costs and commissions, discounts and
other fees and charges associated with Indebtedness (including the Loans), (c) depreciation and
amortization expense (excluding amortization of film inventory that does not constitute
amortization of purchase price amortization), (d) amortization of intangibles (including, but not
limited to, goodwill) and organization costs (excluding amortization of film inventory that does
not constitute amortization of purchase price amortization), (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), (f) minority interest expense in
respect of preferred stock of Subsidiaries of the Borrower, and (g) non-cash expenses in respect of
stock options and minus, to the extent included in the statement of such Consolidated Net
Income for such period, the sum of (a) interest income and (b) any extraordinary, unusual or
non-recurring income or gains (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), all as determined on a consolidated basis.
“Consolidated Leverage Ratio” means, as at the last day of any period, the ratio of
(a) Consolidated Total Debt on such day to (b) Consolidated EBITDA for such period.
“Consolidated Net Income” means, for any period, the consolidated net income (or loss)
of the Borrower and its consolidated Subsidiaries, determined on a consolidated basis in accordance
with GAAP; provided that there shall be excluded, without duplication (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 or that such other
Person’s assets are acquired by the Borrower or any of its Subsidiaries, (b) the income (or
deficit) of any Person (other than a Restricted Subsidiary) 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 the Restricted Subsidiaries in the form of 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 its charter or any agreement or instrument (other than any
Credit Document), judgment, decree, order, statute, rule, governmental regulation or other
requirement of law applicable to such Subsidiary; provided that the income of any
Subsidiary of the Borrower shall not be excluded by reason of this clause (c) so long as such
Subsidiary guarantees the Obligations.
9
“Consolidated Total Assets” means, at any date, all amounts that would, in conformity
with GAAP, be included on a consolidated balance sheet of the Borrower and its Subsidiaries under
total assets at such date; provided that such amounts shall be calculated in accordance
with Section 1.04.
“Consolidated Total Debt” means, at any date, the aggregate principal amount of
Indebtedness of the Borrower and the Restricted Subsidiaries minus (a) the aggregate
principal amount of any such Indebtedness that is payable either by its terms or at the election of
the obligor in equity securities of the Borrower or the proceeds of options in respect of such
equity securities and (b) the aggregate amount of cash and Cash Equivalents held by the Borrower or
any of the Restricted Subsidiaries in excess of $25,000,000, all determined on a consolidated basis
in accordance with GAAP.
“Control” means the possession, directly or indirectly, of the power to direct or
cause the direction of the management or policies of a Person, whether through the ability to
exercise voting power, by contract or otherwise. “Controlling” and “Controlled”
have meanings correlative thereto.
“Copyright Liens” means any Liens granted by the Borrower or any of its Subsidiaries
on copyrights relating to movies or other programming, which movies or other programming are
subject to one or more contracts entitling the Borrower or such Subsidiary to future payments in
respect of such movies or other programming and which contractual rights to future payments are to
be transferred by the Borrower or such Subsidiary to a special purpose Subsidiary of the Borrower
or such Subsidiary organized for the purpose of monetizing such rights to future payments,
provided that such Liens (a) are granted directly or indirectly for the benefit of the
special purpose Subsidiary and/or the Persons who purchase such contractual rights to future
payments from such special purpose Subsidiary and (b) extend only to the copyrights for the movies
or other programming subject to such contracts for the purpose of permitting the completion,
distribution and exhibition of such movies or other programming.
“Credit Documents” means this Agreement, the Guarantee and each Note.
“Credit Parties” means the Borrower and the Guarantors, collectively; and “Credit
Party” means any of them.
“Default” means any event or condition which constitutes an Event of Default or which
upon notice, lapse of time or both would, unless cured or waived, become an Event of Default.
“Defaulting Lender” means any Lender which fails to make any Loan required to be made
by it in accordance with the terms and conditions of this Agreement.
“Designated Subsidiaries” means each Subsidiary of the Borrower other than Bright
House Networks LLC.
“Disposition” means with respect to any property, any sale, lease, sale and leaseback,
assignment, conveyance, transfer or other disposition thereof; provided that the grant
10
of any Lien in and of itself shall not be treated as a Disposition for purposes of this
Agreement. The terms “Dispose” and “Disposed of” shall have correlative meanings.
“Dollars” or “$” refers to lawful money of the United States.
“Duration Fee” has the meaning assigned to such term in Section 2.11(c).
“Effective Date” means the date on which the conditions specified in Section 4.01 are
satisfied (or waived in accordance with Section 9.02), which date is December 10, 2008.
“Eligible Assignee” means (a) any financial institution whose home office is domiciled
in a country that is a member of the Organization for Economic Cooperation and Development and
having capital and surplus in excess of $500,000,000 or (b) at any time prior to the Time Warner
Assignment Date, any Affiliate of Time Warner.
“Environmental Law” means all applicable and binding laws, rules, regulations, codes,
ordinances, orders, decrees, judgments, injunctions, or agreements issued, promulgated or entered
into by any Governmental Authority, relating in any way to the environment, preservation or
reclamation of natural resources, the management, release or threatened release of any Hazardous
Material or to health and safety matters.
“Environmental Liability” means any liability, contingent or otherwise (including any
liability for damages, costs of environmental remediation, fines, penalties or indemnities), of the
Borrower or any of its Restricted Subsidiaries directly or indirectly resulting from or based upon
(a) a violation of any Environmental Law, (b) the generation, use, handling, transportation,
storage, treatment or disposal of any Hazardous Materials, (c) the exposure to any Hazardous
Materials, (d) the release or threatened release of any Hazardous Materials into the environment or
(e) any contract, agreement or other consensual arrangement pursuant to which liability is assumed
or imposed with respect to any of the foregoing.
“ERISA” means the Employee Retirement Income Security Act of 1974, as amended from
time to time.
“ERISA Affiliate” means, with respect to the Borrower, any trade or business (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.
“ERISA Event” means (a) any “reportable event,” as defined in Section 4043 of ERISA or
the regulations issued thereunder with respect to a Plan (other than an event for which the 30-day
notice period is waived); (b) with respect to any Plan, failure to satisfy the minimum funding
standards (within the meaning of Section 412 of the Code or Section 302 of ERISA), whether or not
waived; (c) the filing pursuant to Section 412 of the Code of an application for a waiver of the
minimum funding standard with respect to any Plan; (d) the incurrence by the Borrower or any of its
ERISA Affiliates of any unfunded liability under Title IV of ERISA with respect to the termination
of any Plan; (e) the receipt by the Borrower or any ERISA Affiliate from the PBGC or a Plan
administrator of any notice relating to an intention to terminate any
11
Plan or Plans or to appoint a trustee to administer any Plan; (f) the incurrence by the
Borrower or any of its ERISA Affiliates of any liability with respect to the withdrawal or partial
withdrawal from any Plan or Multiemployer Plan; (g) the receipt by the Borrower or any ERISA
Affiliate of any notice concerning the imposition on such entity of Withdrawal Liability or a
determination that a Multiemployer Plan with respect to which such entity is obligated to
contribute or is otherwise liable is, or is expected to be, insolvent or in reorganization, within
the meaning of Title IV of ERISA; or (h) the occurrence, with respect to a Plan or a Multiemployer
Plan, of a nonexempt “prohibited transaction” (within the meaning of Section 4975 of the Code or
Section 406 of ERISA) which could reasonably be expected to result in liability to the Borrower.
“Eurodollar” when used in reference to any Loan or Borrowing, refers to a Loan, or the
Loans comprising such Borrowing, bearing interest at a rate determined by reference to the Adjusted
LIBO Rate.
“Event of Default” has the meaning assigned to such term in Article VII.
“Exchange Act” means the Securities and Exchange Act of 1934, as amended.
“Excluded Taxes” means, with respect to the Administrative Agent, any Lender or any
other recipient of any payment to be made by or on account of any obligation of any Credit Party
hereunder, (a) income or franchise taxes imposed on (or measured by) its net income by the United
States, or by the jurisdiction under the laws of which such recipient is organized or in which its
principal office is located or, in the case of any Lender, in which its applicable lending office
is located, (b) any branch profits taxes imposed by the United States or any similar tax imposed by
any other jurisdiction described in clause (a) above, (c) in the case of a Foreign Lender (other
than an assignee pursuant to a request by the Borrower under Section 2.18(b)), any withholding tax
that (i) is imposed on amounts payable to such Foreign Lender at the time such Foreign Lender
becomes a party to this Agreement or designates a new lending office or (ii) is attributable to
such Foreign Lender’s failure or inability to comply with Section 2.16(e), except to the extent
that such Foreign Lender (or its assignor, if any) was entitled, at the time of such designation of
a new lending office or assignment, to receive additional amounts from such Credit Party with
respect to such withholding tax pursuant to Section 2.16(a) and (d) in the case of a Lender that is
a U.S. Person, any withholding tax that is attributable to the Lender’s failure to comply with
Section 2.16(f).
“Federal Funds Effective Rate” means, for any day, the weighted average (rounded
upwards, if necessary, to the next Basis Point) of the rates on overnight Federal funds
transactions with members of the United States 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 (rounded
upwards, if necessary, to the next Basis Point) of the quotations for such day for such
transactions received by the Administrative Agent from three Federal funds brokers of recognized
standing selected by it.
“Final Bridge Maturity Date” has the meaning assigned to such term in Section 4.02(c).
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“Financial Officer” means, with respect to any Person, the chief financial officer,
principal accounting officer, treasurer or controller of such Person.
“Fitch” means Fitch, Inc.
“Foreign Lender” means any Lender that is organized under the laws of a jurisdiction
other than that in which the Borrower is located. For purposes of this definition, the United
States, each State thereof and the District of Columbia shall be deemed to constitute a single
jurisdiction.
“Franchise” means, with respect to any Person, a franchise, license, authorization or
right to construct, own, operate, manage, promote, extend or otherwise utilize any cable television
distribution system operated or to be operated by such Person or any of its Subsidiaries granted by
any Governmental Authority, but shall not include any such franchise, license, authorization or
right that is incidentally required for the purpose of installing, constructing or extending a
cable television system.
“GAAP” means generally accepted accounting principles in the United States.
“Governmental Authority” means the government of the United States, any other nation
or any political subdivision thereof, whether state or local, and any agency, authority,
instrumentality, regulatory body, court, central bank or other entity exercising executive,
legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to
government.
“Guarantee” means the guarantee by the Guarantors of the Obligations of the Borrower,
substantially in the form of Exhibit B.
“Guarantee Obligations” of or by any Person (the “guarantor”) means any
obligation, contingent or otherwise, of the guarantor guaranteeing or having the economic effect of
guaranteeing any Indebtedness of any other Person (the “primary obligor”) in any manner,
whether directly or indirectly, and including any obligation of the guarantor, direct or indirect,
(a) to purchase or pay (or advance or supply funds for the purchase or payment of) such
Indebtedness or to purchase (or to advance or supply funds for the purchase of) any security for
the payment thereof, (b) to purchase or lease property, securities or services for the purpose of
assuring the owner of such Indebtedness of the payment thereof, (c) to maintain working capital,
equity capital or any other financial statement condition or liquidity of the primary obligor so as
to enable the primary obligor to pay such Indebtedness or (d) as an account party in respect of any
letter of credit or letter of guaranty issued to support such Indebtedness; provided, that
the term Guarantee Obligations shall not include endorsements for collection or deposit in the
ordinary course of business.
“Guarantors” means TWNY, TWE and any other Person that may be added to the Guarantee
as required by Section 6.09 or at the discretion of the Borrower, collectively; and
“Guarantor” means any of them.
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“Hazardous Materials” means all explosive or radioactive substances or wastes and all
hazardous or toxic substances, wastes or other pollutants, including petroleum or petroleum
distillates, asbestos or asbestos containing materials, polychlorinated biphenyls, radon gas,
infectious or medical wastes and all other substances or wastes of any nature regulated pursuant to
any Environmental Law.
“Immediate Prepayment Amount” means the sum of the amounts, if any, with respect to
each Carryover Asset Sale that are described in clause (iv) of the definition of Pending
Reinvestment Certificate and set forth in such certificate.
“Indebtedness” of any Person means, without duplication, (a) all obligations of such
Person for borrowed money, (b) all obligations of such Person evidenced by bonds, debentures, notes
or similar instruments, (c) all obligations of such Person upon which interest charges are
customarily paid, (d) all obligations of such Person under conditional sale or other title
retention agreements relating to property acquired by such Person (but not including operating
leases), (e) all obligations of such Person in respect of the deferred purchase price of property
or services (excluding current accounts payable incurred in the ordinary course of business and
payment obligations of such Person pursuant to agreements entered into in the ordinary course of
business, which payment obligations are contingent on another Person’s satisfactory provision of
services or products), (f) all Indebtedness of others secured by (or for which the holder of such
Indebtedness has an existing right, contingent or otherwise, to be secured by) any Lien (other than
Copyright Liens or Liens on interests or Investments in Unrestricted Subsidiaries) on property
owned or acquired by such Person, whether or not the Indebtedness secured thereby has been assumed
(but only to the extent of the lesser of the fair market value of the property subject to such Lien
and the amount of such Indebtedness), (g) all Guarantee Obligations of such Person with respect to
Indebtedness of others (except to the extent that such Guarantee Obligation guarantees Indebtedness
of a Restricted Subsidiary), (h) all Capital Lease Obligations of such Person, (i) all obligations,
contingent or otherwise, of such Person as an account party in respect of letters of credit (but
only to the extent of all drafts drawn thereunder) and (j) all obligations, contingent or
otherwise, of such Person in respect of bankers’ acceptances. Notwithstanding the foregoing,
Indebtedness shall not include (i) any obligation of such Person to guarantee performance of, or
enter into indemnification agreements with respect to, obligations, entered into in the ordinary
course of business, under any and all Franchises, leases, performance bonds, franchise bonds and
obligations to reimburse drawings under letters of credit issued in lieu of performance or
franchise bonds or (ii) obligations to make Tax Distributions. 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 contractual relationship with such entity, except to the extent the
terms of such Indebtedness provide that such Person is not liable therefor.
“Indemnified Taxes” means Taxes other than Excluded Taxes.
“Index Debt” has the meaning assigned to such term in the definition of “Applicable
Margin”.
14
“Interest Election Request” means a request by the Borrower to convert or continue a
Borrowing in accordance with Section 2.07.
“Interest Payment Date” means (a) with respect to any ABR Loan, the last day of each
March, June, September and December and (b) with respect to any Eurodollar Loan, the last day of
the Interest Period applicable to the Borrowing of which such Loan is a part and, in the case of a
Eurodollar Borrowing with an Interest Period of more than three months’ duration, each day that is
three months, or a whole multiple thereof, after the first day of such Interest Period and the last
day of such Interest Period.
“Interest Period” means with respect to any Eurodollar Borrowing the period commencing
on the date of such Borrowing and ending on the numerically corresponding day in the calendar month
that is (a) one, two, three or six months (or, with the consent of each Lender, a shorter period or
nine months if available from all Lenders) thereafter, as the Borrower may elect or (b) one month
thereafter, if the Borrower has made no election, provided, that the Borrower may elect an
Interest Period with a duration of greater than three months only after the Time Warner Assignment
Date has occurred, provided further, that (i) if any Interest Period would end on a
day other than a Business Day, such Interest Period shall be extended to the next succeeding
Business Day unless such next succeeding Business Day would fall in the next calendar month, in
which case such Interest Period shall end on the next preceding Business Day and (ii) any Interest
Period pertaining to such a Borrowing that commences on the last Business Day of a calendar month
(or on a day for which there is no numerically corresponding day in the last calendar month of such
Interest Period) shall end on the last Business Day of the last calendar month of such Interest
Period. For purposes hereof, the date of a Borrowing initially shall be the Borrowing Date and
thereafter shall be the effective date of the most recent conversion or continuation of such
Borrowing.
“Investment” by any Person means any direct or indirect (a) loan, advance or other
extension of credit or contribution to any other Person (by means of transfer of cash or other
property to others, payments for property or services for the account or use of others, mergers or
otherwise), (b) purchase or acquisition of Capital Stock, bonds, notes, debentures or other
securities (including any option, warrant or other right to acquire any of the foregoing) or
evidences of Indebtedness issued by any other Person (whether by merger, consolidation,
amalgamation or otherwise and whether or not purchased directly from the issuer of such securities
or evidences of Indebtedness), (c) purchase or acquisition (in one transaction or a series of
transactions) of any assets of any other Person constituting a business unit and (d) all other
items that would be classified as investments on a balance sheet of such Person prepared in
accordance with GAAP. Investments shall exclude extension of trade credit and advances to
customers and suppliers to the extent made in the ordinary course of business and in accordance
with customary industry practice.
“Lender Affiliate” means, (a) with respect to any Lender, (i) an Affiliate of such
Lender or (ii) any entity (whether a corporation, partnership, trust or otherwise) that is engaged
in making, purchasing, holding or otherwise investing in bank loans and similar extensions of
credit in the ordinary course of its business and is administered or managed by a Lender or an
Affiliate of such Lender and (b) with respect to any Lender that is a fund which invests in bank
15
loans and similar extensions of credit, any other fund that invests in bank loans and similar
extensions of credit and is managed by the same investment advisor as such Lender or by an
Affiliate of such investment advisor.
“Lenders” means the Persons listed on Schedule 2.01 and any other Person that shall
have become a party hereto pursuant to an Assignment and Acceptance, other than any such Person
that ceases to be a party hereto pursuant to an Assignment and Acceptance.
“LIBO Rate” means, with respect to any Eurodollar Borrowing denominated in Dollars for
any Interest Period, the rate per annum equal to the British Bankers Association LIBOR Rate (the
“BBA LIBOR”) as published by Reuters (or any other commercially available source providing
quotations of BBA LIBOR as designated by the Administrative Agent from time to time for purposes of
providing quotations of interest rates applicable to Dollar deposits in the London interbank
market) at approximately 11:00 a.m., London time, two Business Days prior to the commencement of
such Interest Period, as the rate for Dollar deposits with a maturity comparable to such Interest
Period. In the event that such rate is not available at such time for any reason, then the “LIBO
Rate” with respect to such Eurodollar Borrowing for such Interest Period shall be the rate per
annum (rounded upwards, if necessary, to the next Basis Point) equal to the arithmetic average of
the rates at which deposits in Dollars approximately equal in principal amount to $5,000,000 and
for a maturity comparable to such Interest Period are offered with respect to any Eurodollar
Borrowing to the principal London offices of the Reference Banks (or, if any Reference Bank does
not at the time maintain a London office, the principal London office of any Affiliate of such
Reference Bank) in immediately available funds in the London interbank market at approximately
11:00 a.m., London time, two Business Days prior to the commencement of such Interest Period.
“Lien” means, with respect to any asset, (a) any mortgage, deed of trust, lien,
pledge, hypothecation, encumbrance, charge or security interest in (including sales of accounts),
on or of such asset, (b) the interest of a vendor or a lessor under any conditional sale agreement,
capital lease or title retention agreement (or any financing lease having substantially the same
economic effect as any of the foregoing, but excluding any operating leases) relating to such asset
and (c) in the case of securities, any purchase option, call or similar right of a third party with
respect to such securities.
“Loans” means the term loans made by the Lenders to the Borrower pursuant to this
Agreement.
“Material Adverse Effect” means a material adverse effect on (a) the financial
condition, business, results of operations, properties or liabilities of the Borrower and the
Restricted Subsidiaries taken as a whole, (b) the ability of any Credit Party to perform any of its
material obligations to the Lenders under any Credit Document to which it is or will be a party
(except, in the case of any Guarantor, as a result of the event described in Section 9.14) or (c)
the rights of or benefits available to the Lenders under any Credit Document.
“Material Indebtedness” means Indebtedness (other than the Loans), of any one or more
of the Borrower and its Restricted Subsidiaries in an aggregate principal amount exceeding
$200,000,000.
16
“Material Subsidiary” means, at any date, each Subsidiary of the Borrower which,
either alone or together with the Subsidiaries of such Subsidiary, meets any of the following
conditions:
(a) as of the last day of the Borrower’s most recently ended fiscal quarter for which
financial statements have been filed with the SEC or furnished to the Administrative Agent pursuant
to Section 5.1, the investments of the Borrower and its Subsidiaries in, or their proportionate
share (based on their equity interests) of the book value of the total assets (after intercompany
eliminations) of, the Subsidiary in question exceeds 10% of the book value of the total assets of
the Borrower and its consolidated Subsidiaries;
(b) for the period of four consecutive fiscal quarters ended on the last day of the Borrower’s
most recently ended fiscal quarter for which financial statements have been filed with the SEC or
furnished to the Administrative Agent pursuant to Section 5.1, the equity of the Borrower and its
Subsidiaries in the revenues from continuing operations of the Subsidiary in question exceeds 10%
of the revenues from continuing operations of the Borrower and its consolidated Subsidiaries; or
(c) for the period of four consecutive fiscal quarters ended on the last day of the Borrower’s
most recently ended fiscal quarter for which financial statements have been filed with the SEC or
furnished to the Administrative Agent pursuant to Section 5.1, the equity of the Borrower and its
Subsidiaries in the Consolidated EBITDA of the Subsidiary in question exceeds 10% of the
Consolidated EBITDA of the Borrower.
“Maturity Date” means the date that is two years after the Borrowing Date.
“Moody’s” means Xxxxx’x Investors Service, Inc.
“Multiemployer Plan” means a multiemployer plan as defined in Section 4001(a)(3) of
ERISA.
“Net Cash Proceeds” means (a) in connection with any Qualifying Asset Sale, 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), net of attorneys’ fees,
accountants’ fees, investment banking fees, amounts required to be applied to the repayment of
Indebtedness secured by a Lien on any asset that is the subject of such Qualifying Asset Sale and
other customary fees and expenses actually incurred in connection therewith and net of 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 (b) in connection with any public
offering or private placement of Capital Stock by the Borrower or any issuance or incurrence of
Indebtedness by the Borrower or any Designated Subsidiary, 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 and taxes actually
incurred in connection therewith. The Net Cash Proceeds arising from a Qualifying Asset Sale by any
non-Wholly Owned Subsidiary or any such issuance or incurrence of Indebtedness by any non-Wholly
Owned Subsidiary shall be deemed to be only
17
that percentage of the actual Net Cash Proceeds (net of taxes paid or reasonably estimated to
be payable as a result of the distribution of such proceeds to, or receipt of such proceeds by, the
Borrower (after taking into account any available tax credits or deductions and any tax sharing
arrangements)) realized by such non-Wholly Owned Subsidiary that is the same as the percentage of
the Capital Stock thereof directly or indirectly owned by the Borrower. The Net Cash Proceeds
arising from a Qualifying Asset Sale to any non-Wholly Owned Subsidiary shall be deemed to be only
that percentage of the actual Net Cash Proceeds (net of taxes paid or reasonably estimated to be
payable as a result of the distribution of such proceeds to, or receipt of such proceeds by, the
Borrower (after taking into account any available tax credits or deductions and any tax sharing
arrangements)) realized by such non-Wholly Owned Subsidiary that is the same as the percentage of
the Capital Stock thereof that is not directly or indirectly owned by the Borrower.
Notwithstanding the foregoing, Net Cash Proceeds shall not include any proceeds to the extent the
distribution or transfer of such proceeds to the Borrower, any Subsidiary of the Borrower or any
other Person in repayment of Indebtedness would contravene (i) in the event the transferring entity
is a non-Wholly Owned Subsidiary, the organizational documents or other contractual obligation of
such transferring entity as in effect as of the date hereof or (ii) applicable law.
“Note” means any promissory note evidencing Loans issued pursuant to Section 2.09(e).
“Obligations” has the meaning assigned to such term in the Guarantee.
“Other Excepted Indebtedness” means (a) Indebtedness of any Restricted Subsidiary
permitted under Section 6.02 (other than clause (a) thereof) and Indebtedness of the Borrower or
any Designated Subsidiary that is not a Restricted Subsidiary which would be permitted to be
incurred under Section 6.02 (other than clause (a) thereof) if it were incurred by a Restricted
Subsidiary, (b) Capital Lease Obligations and (c) Indebtedness among the Borrower and its
Designated Subsidiaries.
“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.
“PBGC” means the Pension Benefit Guaranty Corporation referred to and defined in ERISA
and any successor entity thereto.
“Pending Reinvestment Amount” means, with respect to any Carryover Asset Sale, the
amount described in clause (iii) of the definition of Pending Reinvestment Certificate and set
forth in such certificate.
“Pending Reinvestment Certificate” means a certificate in the form of Exhibit E hereto
setting forth, with respect to each Carryover Asset Sale, (i) the date of such Carryover Asset
Sale, (ii) the aggregate amount of Net Cash Proceeds (as defined hereunder) that, as of the Bridge
Facility Maturity Date, have not been either (x) applied to reduce the commitments available to be
drawn, or prepay the loans outstanding, under the Bridge Facility Credit
18
Agreement or (y) expended to acquire or repair assets useful in the Borrower’s or any
Designated Subsidiaries’ business, including without limitation, acquisitions, capital expenditures
and other investments, (iii) the portion of the amount described in clause (ii) of this definition
that the Borrower (directly or indirectly through a Subsidiary) intends and expects, as of the
Borrowing Date, to use to acquire or repair assets useful in the Borrower’s or any Designated
Subsidiaries’ business, including, without limitation, acquisitions, capital expenditures and other
investments (which amount shall be the “Pending Reinvestment Amount” with respect to such Carryover
Asset Sale) and (iv) the amount, if any, that is equal to the excess of the amount set forth in
clause (ii) over the amount set forth in clause (iii) of this definition.
“Person” means any natural person, corporation, limited liability company, trust,
joint venture, association, company, partnership, Governmental Authority or other entity.
“Plan” means any employee pension benefit plan (other than a Multiemployer Plan)
subject to the provisions of Title IV of ERISA or Section 412 of the Code or Section 302 of ERISA,
and in respect of which the Borrower or any ERISA Affiliate is (or, if such plan were terminated,
would under Section 4069 of ERISA be deemed to be) an “employer” as defined in Section 3(5) of
ERISA.
“Platform” has the meaning assigned to such term in Section 5.01.
“Prime Rate” means (a) if the Administrative Agent is a financial institution that
announces a prime rate in the ordinary course of its business, the rate of interest per annum
publicly announced from time to time by the Administrative Agent as its prime rate in effect at its
principal office in New York City or (b) if clause (a) does not apply, the rate of interest quoted
in the Wall Street Journal, Money Rates Section as the prime rate (which rate is currently defined
as the base rate on corporate loans posted by at least 75% of the nation’s 30 largest banks). Each
change in the Prime Rate shall be effective from and including the date such change is publicly
announced as being effective.
“Public Lender” has the meaning assigned to such term in Section 5.01.
“Qualifying Asset Sale” means any Disposition of property or series of related
Dispositions of property (including in each case securities of Subsidiaries) by the Borrower or any
of its Designated Subsidiaries to any Person other than the Borrower or any of its Wholly Owned
Subsidiaries that yields gross proceeds to the Borrower and its Designated Subsidiaries (valued at
the initial principal amount thereof in the case of non-cash proceeds consisting of notes or other
debt securities and valued at fair market value in the case of other non-cash proceeds) in excess
of $10,000,000, other than:
(a) any Disposition of obsolete, surplus or worn out property or property which is no longer
used or usable in the business of the Borrower and its Designated Subsidiaries and leases,
subleases, licenses and sublicenses of real or intellectual property, in each case, in the ordinary
course of business;
19
(b) any sale of inventory or Disposition of accounts receivable in connection with the
compromise, write-down or collection thereof, in each case, in the ordinary course of business; and
(c) any other Disposition of property in the ordinary course of business.
“Rating” has the meaning assigned to such term in the definition of “Applicable
Margin”.
“Reference Bank” means, (i) prior to the Time Warner Assignment Date, each of the
reference banks under Time Warner’s primary revolving credit facility at that time and (ii) on and
after the Time Warner Assignment Date, each of the Administrative Agent and one or more financial
institutions selected by the Administrative Agent with the consent of the Borrower, such consent
not to be unreasonably withheld.
“Register” has the meaning assigned to such term in Section 9.04(c).
“Regulation U” means Regulation U of the Board as in effect from time to time.
“Reinvestment Deferred Amount” means, with respect to any Reinvestment Event, the
aggregate Net Cash Proceeds received by the Borrower and its Designated Subsidiaries in connection
therewith that are not (or, as of any date of determination, have not been) applied to reduce the
Commitments or prepay the Loans pursuant to Section 2.08(c) or 2.10(b) as a result of the delivery
of a Reinvestment Notice or the Pending Reinvestment Amount with respect thereto set forth in the
Pending Reinvestment Certificate.
“Reinvestment Event” means (i) any Qualifying Asset Sale in respect of which the
Borrower has delivered a Reinvestment Notice and (ii) any Carryover Asset Sale listed on the
Pending Reinvestment Certificate, and the date of such Reinvestment Event shall be the date of such
Qualifying Asset Sale or Carryover Asset Sale.
“Reinvestment Notice” means a written notice executed by a Responsible Officer stating
that no Event of Default has occurred and is continuing and that the Borrower (directly or
indirectly through a Subsidiary) intends and expects to use all or a specified portion of the Net
Cash Proceeds of a Qualifying Asset Sale to acquire or repair assets useful in the Borrower’s or
any Designated Subsidiaries’ business, including, without limitation, acquisitions, capital
expenditures and other investments.
“Reinvestment Prepayment Amount” means, with respect to any Reinvestment Event, the
Reinvestment Deferred Amount relating thereto less any amount of proceeds of such Reinvestment
Event expended prior to the relevant Reinvestment Prepayment Date to acquire or repair assets
useful in the Borrower’s or any Designated Subsidiaries’ business, including without limitation,
acquisitions, capital expenditures and other investments.
“Reinvestment Prepayment Date” means, with respect to any Reinvestment Event, the
earlier of (a) the first anniversary of such Reinvestment Event and (b) the date on which the
Borrower shall have determined not to acquire or repair assets useful in the
20
Borrower’s or any Designated Subsidiaries’ business, including without limitation,
acquisitions, capital expenditures and other investments, with all or any portion of the relevant
Reinvestment Deferred Amount.
“Related Parties” means, with respect to any specified Person, such Person’s
Affiliates and the respective directors, officers, employees, partners, agents and advisors of such
Person and such Person’s Affiliates.
“Required Lenders” means, (a) prior to the Borrowing Date, Time Warner, or (b) on and
after the Borrowing Date, Lenders holding more than 50% of the sum total of the aggregate unpaid
principal amount of the Loans.
“Responsible Officer” means any of the Chief Executive Officer, Chief Legal Officer,
Chief Financial Officer, President, Treasurer or Controller (or any equivalent of the foregoing
officers) of the Borrower, or such other officer of the Borrower reasonably acceptable to the
Administrative Agent and designated as such in writing to the Administrative Agent by the Borrower.
“Restricted Payment” means, as to any Person, any dividend or other distribution
(whether in cash, securities or other property) with respect to any shares of any class of Capital
Stock or other equity interests of such Person, or any payment (whether in cash, securities or
other property), including any sinking fund or similar deposit, on account of the purchase,
redemption, retirement, acquisition, cancellation or termination of any such shares of Capital
Stock or other equity interests of such Person or any option, warrant or other right to acquire any
such shares of Capital Stock or other equity interests of such Person.
“Restricted Subsidiaries” means, as of any date, all Subsidiaries of the Borrower that
have not been designated as Unrestricted Subsidiaries by the Borrower pursuant to Section 6.08 or
have been so designated as Unrestricted Subsidiaries by the Borrower but prior to such date have
been (or have been deemed to be) re-designated by the Borrower as Restricted Subsidiaries pursuant
to Section 6.08.
“Revolver Availability” means, as of any date, (i) the sum of (a) the outstanding
undrawn commitments available for borrowing under (after giving effect to the aggregate outstanding
amount of undrawn letters of credit issued under) the Revolving Credit Agreement on such date
plus (b) the amount of cash and Cash Equivalents of the Borrower and its Designated
Subsidiaries in excess of $100,000,000 on such date minus (ii) the aggregate outstanding
amount of commercial paper backed by the Revolving Credit Agreement on such date.
“Revolving Credit Agreement” means the $6,000,000,000 Five-Year Revolving Credit
Facility, dated as of February 15, 2006, among the Borrower, the several banks and other financial
institutions from time to time parties thereto, Citibank, N.A. and Deutsche Bank AG New York
Branch, as co-syndication agents, BNP Paribas and Wachovia Bank, National Association, as
co-documentation agents and Bank of America, N.A., as administrative agent, as such credit facility
and/or related documents may be amended, restated, supplemented, renewed, extended, refunded,
replaced, restructured, partially or entirely refinanced, or otherwise modified
21
from time to time, whether or not with the same agent, trustee, representative lenders, or
holders and irrespective of any changes in amounts, terms and conditions thereof, whether in one or
more agreements. Without limiting the foregoing, it is understood that the term “Revolving Credit
Agreement” shall include the agreements for all debt facilities entered into by the Borrower or any
of its subsidiaries providing for revolving credit loans, letters of credit, swingline loans,
receivables financings (including through the sale of receivables to the lenders thereunder or to
special purpose entities formed to borrow from such lenders against such receivables) or other
working capital financing as in effect from time to time, in each case, other than Other Excepted
Indebtedness, provided that for purposes of calculating Revolver Availability, the undrawn
commitments shall be only those commitments available for such revolving credit loans, letters of
credit, swingline loans, receivables financings or other working capital financing thereunder.
“S&P” means Standard & Poor’s Rating Services.
“SEC” means the Securities and Exchange Commission, any successor thereto and any
analogous Governmental Authority.
“Separation” has the meaning assigned to such term in the Separation Agreement.
“Separation Agreement” means the Separation Agreement, dated as of May 20, 2008, among
Time Warner, the Borrower, TWE, TWNY, Warner Communications Inc., Historic TW Inc. and American
Television and Communications Corporation.
“Solvent” means, when used with respect to any Person, that, on a consolidated basis
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”, 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, (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. 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. The amount of any contingent liability at any time shall be computed as the amount that
in the light of all the facts and circumstances existing at such time, represents the amount that
could reasonably become an actual or matured liability.
“Statutory Reserve Rate” means a fraction (expressed as a decimal), the numerator of
which is the number one and the denominator of which is the number one minus the aggregate of the
maximum reserve percentage (including any marginal, special, emergency or supplemental reserves)
expressed as a decimal established by the Board to which the
22
Administrative Agent is subject or, if at any time prior to the Time Warner Assignment Date,
the Administrative Agent is Time Warner and is not then subject to regulation by the Board, then to
which commercial banks subject to regulation by the Board are subject with respect to the LIBO
Rate, for eurocurrency funding (currently referred to as “Eurocurrency Liabilities” in Regulation D
of the Board). Such reserve percentage shall include those imposed pursuant to such Regulation D.
Eurodollar Loans shall be deemed to constitute eurocurrency funding and to be subject to such
reserve requirements without benefit of or credit for proration, exemptions or offsets that may be
available from time to time to any Lender under such Regulation D or any comparable regulation.
The Statutory Reserve Rate shall be adjusted automatically on and as of the effective date of any
change in any reserve percentage.
“Step-Up Margin” means 0 Basis Points per annum for the period from the Borrowing Date
until the date six months thereafter and shall increase to 25 Basis Points per annum on such date
and by an additional 25 Basis Points per annum at the end of each subsequent six-month period.
“Subsidiary” means, with respect to any Person (the “parent”) at any date, any
corporation, limited liability company, partnership, association or other entity the accounts of
which would be consolidated with those of the parent in the parent’s consolidated financial
statements if such financial statements were prepared in accordance with GAAP as of such date, as
well as any other corporation, limited liability company, partnership, association or other entity
of which securities or other ownership interests representing more than 50% of the equity or more
than 50% of the ordinary voting power or, in the case of a partnership, more than 50% of the
general partnership interests are, as of such date, owned, controlled or held. Unless otherwise
qualified, all references to a “Subsidiary” or “Subsidiaries” in this Agreement shall refer to a
Subsidiary or Subsidiaries of the Borrower.
“Supermajority Subsidiary” means, with respect to any Person, a non-Wholly Owned
Subsidiary at least seventy-five (75%) of the Capital Stock of which (other than directors’
qualifying shares or similar shares owned by other Persons due to native ownership requirements) is
owned by such Person directly and/or through one or more other Subsidiaries.
“Tax Distribution” means, with respect to any period, distributions made to any Person
by a Subsidiary of such Person on or with respect to income and other taxes, which distributions
are not in excess of the tax liabilities that, (a) in the case of a Subsidiary that is a
corporation, would have been payable by such Subsidiary on a standalone basis, and (b) in the case
of a Subsidiary that is a partnership, would have been distributed by such Subsidiary to its owners
with respect to taxes, and in each case which are calculated in accordance with, and made no
earlier than 10 days prior to the date required by, the terms of the applicable organizational
document which requires such distribution.
“Taxes” means any and all present or future taxes, levies, imposts, duties,
deductions, charges or withholdings imposed by any Governmental Authority.
“Time Warner” has the meaning assigned to such term in the preamble hereto.
\
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“Time Warner Assignment Date” means the first date upon which Time Warner has assigned
its Loans in full and is no longer a Lender hereunder.
“Transactions” means (a) the execution, delivery and performance by the Borrower of
this Agreement, (b) the execution, delivery and performance by each of the Guarantors of the
Guarantee, and (c) the borrowing of Loans.
“TW Indemnified Party” has the meaning assigned to such term in Section 9.03.
“TWNY” means TW NY Cable Holding Inc., a Delaware corporation.
“TWE” means Time Warner Entertainment Company, L.P., a Delaware limited partnership.
“Type” when used in reference to any Loan or Borrowing, refers to whether the rate of
interest on such Loan, or on the Loans comprising such Borrowing, is determined by reference to the
Adjusted LIBO Rate or the Alternate Base Rate.
“United States” means the United States of America.
“Unrestricted Subsidiary” means, as of any time, all Subsidiaries of the Borrower that
have been designated as Unrestricted Subsidiaries by the Borrower pursuant to Section 6.08.
“U.S. Person” means a person who is a citizen or resident of the United States and any
corporation or other entity created or organized in or under the laws of the United States.
“Wholly Owned Subsidiary” means, with respect to any Person, any other Person all of
the Capital Stock of which (other than directors’ qualifying shares or similar shares owned by
other Persons due to native ownership requirements) is owned by such Person directly and/or through
one or more other Wholly Owned Subsidiaries.
“Withdrawal Liability” means liability to a Multiemployer Plan as a result of a
complete or partial withdrawal from such Multiemployer Plan, as such terms are defined in Part I of
Subtitle E of Title IV of ERISA.
SECTION 1.02. Classification of Loans and Borrowings.
For purposes of this Agreement, Loans may be classified and referred to by Type
(e.g., a “Eurodollar Loan” or an “ABR Loan”). Borrowings also may be classified and
referred to by Type (e.g., a “Eurodollar Borrowing” or an “ABR Borrowing”).
SECTION 1.03. Terms Generally.
The definitions of terms herein shall apply equally to the singular and plural forms of the
terms defined. Whenever the context may require, any pronoun shall include the corresponding
masculine, feminine and neuter forms. The words, “include,” “includes” and “including” shall be
deemed to be followed by the phrase “without limitation.” The word “will” shall be construed to
have the same meaning and effect as the word “shall.” Unless the context
requires otherwise (a) any definition of or reference to any agreement, instrument or other
document herein shall be construed as referring to such agreement, instrument or other document as
from time to time amended, supplemented or
24
otherwise modified (subject to any restrictions on such
amendments, supplements or modifications set forth herein), (b) any reference herein to any Person
shall be construed to include such Person’s successors and assigns (including any successor of the
Borrower pursuant to any merger or consolidation permitted under Section 6.04), (c) the words
“herein,” “hereof” and “hereunder,” and words of similar import, shall be construed to refer to
this Agreement in its entirety and not to any particular provision hereof, (d) all references
herein to Articles, Sections, Exhibits and Schedules shall be construed to refer to Articles and
Sections of, and Exhibits and Schedules to, this Agreement and (e) the words “asset” and “property”
shall, except where the context dictates otherwise, be construed to have the same meaning and
effect and to refer to any and all tangible and intangible assets and properties, including cash,
securities, accounts and contract rights.
SECTION 1.04. Accounting Terms; GAAP.
Except as otherwise expressly provided herein, all terms of an accounting or financial
nature shall be construed in accordance with GAAP, as in effect from time to time; provided
that, if the Borrower notifies the Administrative Agent that the Borrower requests an amendment to
any provision hereof to eliminate the effect of any change occurring after the date hereof in GAAP
or in the application thereof on the operation of such provision (or if the Administrative Agent
notifies the Borrower that the Required Lenders request an amendment to any provision hereof for
such purpose), regardless of whether any such notice is given before or after such change in GAAP
or in the application thereof, then such provision shall be interpreted on the basis of GAAP as in
effect and applied immediately before such change shall have become effective until such notice
shall have been withdrawn or such provision amended in accordance herewith.
ARTICLE
II
THE CREDITS
SECTION
2.01. Commitments.
Subject to the terms and conditions hereof, each Lender severally agrees to make a term
loan (a “Loan”) to the Borrower in Dollars on the Borrowing Date in an amount not to exceed
the amount of the Commitment of such Lender. The aggregate amount of such Loans shall not exceed
the lesser of (i) $1,535,000,000 less fifty percent (50%) of the aggregate Bridge Facility
Reduction Amount as provided in Section 2.08(c) and (ii) the unpaid principal amount of the loans
outstanding under the Bridge Facility Credit Agreement on the Borrowing Date. Subject to the
limitations set forth in Section 2.07(a), the Loans may from time to time be Eurodollar Loans or
ABR Loans, in each case as determined by the Borrower and notified to the Administrative Agent in
accordance with Sections 2.03 and 2.07.
SECTION
2.02. Loans and Borrowings.
(a) The Borrowing of the Loans shall consist of Loans made by the Lenders ratably in
accordance with their respective Commitments. The failure of any Lender to make any Loan required
to be made by it on the Borrowing Date shall not relieve (i) any other Lender of its obligations
hereunder or (ii) the obligation of Time Warner to fund the entire amount of the Loans hereunder.
25
(b) Subject to Sections 2.07 and 2.13, the Loans shall be comprised of ABR Loans or Eurodollar
Loans as the Borrower may request in accordance herewith. Each Lender at its option may make any
Eurodollar Loan by causing any domestic or foreign branch or Affiliate of such Lender to make such
Loan; provided that any exercise of such option shall (i) subject to following clause (ii),
not affect the obligation of the Borrower to repay such Loan in accordance with the terms of this
Agreement and (ii) not create any additional liability of the Borrower in respect of Sections 2.14
or 2.16.
(c) At the commencement of each Interest Period for any Eurodollar Borrowing, such Borrowing
shall be in an aggregate amount that is an integral multiple of $1,000,000 and not less than
$10,000,000. At the time that any ABR Borrowing is made, such Borrowing shall be in an aggregate
amount that is an integral multiple of $1,000,000 and not less than $10,000,000. Borrowings of more
than one Type may be outstanding at the same time; provided that there shall not at any
time be more than a total of 20 Eurodollar Borrowings outstanding.
(d) Subject to Section 2.09(b), the Borrower shall not be entitled to request or elect any
Interest Period in respect of any Borrowing that would end after the Maturity Date.
SECTION 2.03. Procedures for Borrowing.
To request the Lenders to make the Loans on the anticipated Borrowing Date, the Borrower
shall notify the Administrative Agent of such request by telephone in accordance with Schedule
2.03(A). Such telephonic Borrowing Request shall be irrevocable and shall be confirmed promptly by
hand delivery or facsimile to the Administrative Agent of a written Borrowing Request signed by the
Borrower. Such telephonic and written Borrowing Request shall specify the following information in
compliance with Section 2.02:
(a) the aggregate amount of the requested Borrowing,
(b) the anticipated Borrowing Date;
(c) subject to the limitations set forth in Section 2.07(a), whether any of such Borrowing is
to be an ABR Borrowing or a Eurodollar Borrowing;
(d) in the case of a Eurodollar Borrowing, the initial Interest Period to be applicable
thereto, which shall be a period contemplated by the definition of the term “Interest Period”; and
(e) the location and number of the account to which funds are to be disbursed, which shall
comply with the requirements of Section 2.06.
Notwithstanding anything to the contrary above in this Section 2.03, no such notice shall
alter the information set forth on Schedule 2.03(B) unless such notice shall be written. If no
election as to the Type of Borrowing is specified, then the requested Borrowing shall be deemed an
ABR Borrowing. If no Interest Period is specified with respect to a requested Eurodollar Borrowing,
then the Borrower shall be deemed to have selected an Interest Period of one month’s duration.
Promptly following receipt of such Borrowing Request in accordance
26
with this Section, the
Administrative Agent shall advise each Lender of the details thereof and of the amount of such
Lender’s Loan to be made as part of the requested Borrowing.
SECTION 2.04. [Intentionally left blank]
SECTION 2.05. [Intentionally left blank]
SECTION
2.06. Funding of Borrowings.
(a) Each Lender shall make each Loan to be made by it hereunder on the Borrowing Date by
wire transfer of immediately available funds by 12:00 noon, New York time, to the account of the
Administrative Agent most recently designated by it for such purpose by notice to the Lenders. The
Administrative Agent will make such Loans available to the Borrower by promptly crediting on the
Borrowing Date the amounts so received, in like funds, to an account of the Borrower specified on
Schedule 2.03(B) or otherwise designated by the Borrower in the Borrowing Request.
(b) Unless the Administrative Agent shall have received notice from a Lender prior to the
Borrowing Date that such Lender will not make available to the Administrative Agent such Lender’s
share of any Borrowing, the Administrative Agent may assume that such Lender has made such share
available on such date in accordance with paragraph (a) of this Section and may, in reliance upon
such assumption, make available to the Borrower a corresponding amount. In such event, if a Lender
has not in fact made its share of the applicable Borrowing available to the Administrative Agent,
then the Administrative Agent shall have the right to demand payment from the applicable Lender and
such Lender agrees to pay to the Administrative Agent forthwith on demand such corresponding amount
with interest thereon, for each day from and including the date such amount is made available to
the Borrower to but excluding the date of payment to the Administrative Agent, at the Alternate
Base Rate. If such Lender pays such amount to the Administrative Agent, then such amount shall
constitute such Lender’s Loan included in such Borrowing.
(c) Notwithstanding anything herein to the contrary, in the event that any Lender fails to
make any Loan to be made by it on the Borrowing Date, Time Warner shall be obligated to make such
Loan on such Borrowing Date and shall not be relieved of such obligation by any Assignment and
Acceptance entered into on or prior to the Borrowing Date.
SECTION 2.07. Interest Elections. (a) Except as provided in Sections 2.07(f) and 2.13, at any time prior to the Time Warner
Assignment Date, the Borrower may not make an election with respect to the Type of any Borrowing
hereunder, and all Borrowings shall be Eurodollar Borrowings; provided that the Borrower may make elections with respect to the Interest Period applicable to such
Borrowings in accordance with the procedures for such election set forth in this Section.
(b) Subject to the foregoing paragraph (a), each Borrowing initially shall be of the Type
specified in the Borrowing Request and, in the case of a Eurodollar Borrowing, shall have an
initial Interest Period as specified in such Borrowing Request. Thereafter, the Borrower may elect
to convert such Borrowing to a different Type or to continue such Borrowing and, in the case of a
Eurodollar Borrowing, may elect Interest Periods therefor, all as provided in this Section. The
Borrower may elect different options with respect to different portions of the
27
affected Borrowing,
in which case each such portion shall be allocated ratably among the Lenders holding the Loans
comprising such Borrowing, and the Loans comprising each such portion shall be considered a
separate Borrowing.
(c) To make an election pursuant to this Section, the Borrower shall notify the Administrative
Agent of such election by telephone by the time set forth in Schedule 2.03(A) with respect to the
Type of Borrowing to result from such election. Each such telephonic Interest Election Request
shall be irrevocable and shall be confirmed promptly by hand delivery or facsimile to the
Administrative Agent of a written Interest Election Request in a form approved by the
Administrative Agent and signed by the Borrower.
(d) Each telephonic and written Interest Election Request shall specify the following
information in compliance with Section 2.02:
(i) the Borrowing to which such Interest Election Request applies and, if different
options are being elected with respect to different portions thereof, the portions thereof
to be allocated to each resulting Borrowing (in which case the information to be specified
pursuant to clauses (iii) and (iv) below shall be specified for each resulting Borrowing);
(ii) the effective date of the election made pursuant to such Interest Election
Request, which shall be a Business Day;
(iii) subject to the limitations set forth in Section 2.07(a), whether the resulting
Borrowing is to be an ABR Borrowing or a Eurodollar Borrowing; and
(iv) if the resulting Borrowing is a Eurodollar Borrowing, the Interest Period to be
applicable thereto after giving effect to such election, which shall be a period
contemplated by the definition of the term “Interest Period”.
If any such Interest Election Request requests a Eurodollar Borrowing but does not specify an
Interest Period, then the Borrower shall be deemed to have selected an Interest Period of one
month’s duration.
(e) Promptly following receipt of an Interest Election Request, the Administrative Agent shall
advise each Lender of the details thereof and of such Lender’s portion of each resulting Borrowing.
(f) If the Borrower fails to deliver a timely Interest Election Request with respect to a
Eurodollar Borrowing prior to the end of the Interest Period applicable thereto, then, unless such
Borrowing is repaid as provided herein, at the end of such Interest Period, such Borrowing shall be
continued as a Eurodollar Borrowing, as the case may be, having a one month Interest Period.
Notwithstanding any contrary provision hereof, if an Event of Default has occurred and is
continuing and the Administrative Agent, at the request of the Required Lenders, so notifies the
Borrower, then, so long as an Event of Default is continuing (i) no outstanding Borrowing may be
converted to or continued as a Eurodollar Borrowing and (ii) unless repaid, each Eurodollar
Borrowing shall be converted to an ABR Borrowing at the end of the Interest Period applicable
thereto.
28
SECTION 2.08. Termination and Reduction of Commitments. (a) The Commitments shall terminate at 5:00 p.m. (New York time) on the Final Bridge
Maturity Date if no Loans have been made by such time and the Borrower has not requested the
Lenders to make the Loans. In addition, any unused Commitments remaining after giving effect to
the Borrowings on the Borrowing Date shall be terminated.
(b) Prior to the Borrowing Date, the Borrower may at any time terminate, or from time to time
reduce, the Commitments; provided that each reduction of the Commitments shall be in an
amount that is an integral multiple of $100,000,000. If as a result of such reduction the
Commitments available hereunder are reduced to zero, this Agreement shall be terminated.
(c) On or after the Effective Date, at any time and from time to time that the Bridge Facility
Reduction Amount is increased prior to the Bridge Facility Borrowing Date as a result of any
commitment reductions required to be or voluntarily made by the Borrower under the Bridge Facility
Credit Agreement, the Commitments available hereunder shall immediately be reduced by an amount
equal to fifty percent (50%) of such increase in the Bridge Facility Reduction Amount. If as a
result of such reduction the Commitments available hereunder are reduced to zero, this Agreement
shall be terminated.
(d) On (i) the date of any increase in the commitments available under the Revolving Credit
Agreement prior to the Borrowing Date and (ii) the Borrowing Date (prior to the Borrowing), the
Commitments available hereunder shall be reduced, in each case, by the amount by which Revolver
Availability on such date exceeds $2,000,000,000. If as a result of such reduction the Commitments
hereunder are reduced to zero, this Agreement shall be terminated.
(e) On the Borrowing Date (immediately prior to the Borrowing), the Commitments available
hereunder shall immediately be reduced by an amount equal to the Immediate Prepayment Amount.
(f) The Borrower shall notify the Administrative Agent of any election to terminate or reduce
the Commitments under paragraph (b) of this Section at least one Business Day prior to the
effective date of such termination or reduction specifying such election and the effective date
thereof. The Borrower shall also notify the Administrative Agent promptly upon any event or
circumstance resulting in a requirement to terminate or reduce the Commitments under paragraph (c) and shall provide the Administrative Agent a calculation, together with
supporting evidence in reasonable detail, of the amount of any such reduction of the Commitment.
In the case of the paragraph (d) above, the Borrower shall provide the Administrative Agent prior
to the Borrowing a calculation, together with supporting evidence in reasonable detail, of the
amount of any such reduction of the Commitment and the current Revolver Availability. Promptly
following receipt of any such notice, the Administrative Agent shall advise the Lenders of the
contents thereof. Each notice delivered by the Borrower pursuant to paragraph (b) of this Section
shall be irrevocable; provided that any such notice of termination of the Commitments
delivered by the Borrower may state that such notice is conditioned upon the effectiveness of other
credit facilities, in which case such notice may be revoked by the Borrower (by notice to the
Administrative Agent on or prior to the specified effective date) if such condition is not
satisfied. Any termination or reduction of the Commitments shall be
29
permanent. Each reduction of
the Commitments effected under this Section 2.08 shall be made ratably among the Lenders in
accordance with their respective Commitments.
SECTION 2.09. Repayment of Loans; Evidence of Debt. (a) The Borrower hereby unconditionally promises to pay to the Administrative Agent for
the account of each Lender the then unpaid principal amount of the Loans on the Maturity Date.
(b) 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 Loan made by such
Lender, including the amounts of principal and interest payable and paid to such Lender from time
to time hereunder.
(c) The Administrative Agent shall maintain accounts in which it shall record (i) the amount
of each Loan made hereunder and Type thereof and the Interest Period applicable thereto, (ii) the
amount of any principal or interest due and payable or to become due and payable from the Borrower
to each Lender hereunder and (iii) the amount of any sum received by the Administrative Agent
hereunder for the account of the Lenders and each Lender’s share thereof.
(d) The entries made in the accounts maintained pursuant to paragraph (b) or (c) of this
Section shall be prima facie evidence of the existence and amounts of the
obligations recorded therein; provided that the failure of any Lender or the Administrative
Agent to maintain such accounts or any error therein shall not in any manner affect the obligation
of the Borrower to repay the Loans in accordance with the terms of this Agreement.
(e) Any Lender may request that Loans made by it be evidenced by a Note. In such event, the
Borrower shall execute and deliver to such Lender a Note payable to the order of such Lender (or,
if requested by such Lender, to such Lender and its registered assigns) and in a form approved by
the Administrative Agent and reasonably acceptable to the Borrower. Thereafter, the Loans
evidenced by such Note and interest thereon shall at all times (including after assignment pursuant
to Section 9.04) be represented by one or more Notes in such form payable to the order of the payee
named therein (or, if such promissory note is a registered note, to such payee and its registered
assigns).
SECTION 2.10. Prepayment of Loans. (a) The Borrower shall have the right at any time and from time to time to prepay any
Borrowing in whole or in part, without premium or penalty except as provided in Section 2.15;
provided that the minimum amount of any prepayment in respect of the Loans shall be equal
to $100,000,000. Amounts to be applied pursuant to this Section 2.10(a) shall be applied to reduce
the Loans of each Lender on a pro rata basis. Amounts prepaid on account of the Loans may not be
reborrowed.
(b) From and after the Borrowing Date, the Borrower shall promptly (and in any event within
one (1) Business Day of (x) the receipt of the Net Cash Proceeds thereof in the case of clauses
(i), (ii) and (iii) below, or (y) the determination of such excess in the case of clause (iv)
below) apply the following amounts to prepay the outstanding Loans or a portion thereof as provided
below:
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(i) 100% of the Net Cash Proceeds from any issuance or incurrence of any Indebtedness
by the Borrower or any Designated Subsidiary after the Borrowing Date (other than
Indebtedness incurred under the Revolving Credit Agreement and the Borrower’s commercial
paper program and Other Excepted Indebtedness);
(ii) 100% of the Net Cash Proceeds from any public offering or private placement of
Capital Stock of the Borrower after the Borrowing Date (other than any such public offering
or private placement in connection with employee stock option plans);
(iii) 100% of the Net Cash Proceeds received from any Qualifying Asset Sale by the
Borrower or any of its Subsidiaries, and 100% of the Pending Reinvestment Amounts for all
Carryover Asset Sales, to the extent that the aggregate of all such Net Cash Proceeds from
all Qualifying Asset Sales and all such Pending Reinvestment Amounts from Carryover Asset
Sales, together with the cumulative amount of Net Cash Proceeds of Bridge Asset Sales shall
exceed $250,000,000, unless, in the case of any such Qualifying Asset Sale, a Reinvestment
Notice has been delivered or, in the case of a Carryover Asset Sale, the Pending
Reinvestment Amount is set forth on the Pending Reinvestment Certificate and, in either
case, the Reinvestment Prepayment Date with respect to such Qualifying Asset Sale or
Carryover Asset Sale has not occurred; provided that on each Reinvestment Prepayment
Date an amount equal to the Reinvestment Prepayment Amount with respect to the applicable
Qualifying Asset Sale or Carryover Asset Sale shall be applied toward prepayment of the
Loans. So long as no Event of Default shall have occurred and be continuing, the Borrower
may defer any prepayment that would otherwise be required under this clause (iii) until the
first date on which the aggregate amount of Net Cash Proceeds of Qualifying Asset Sales and
Carryover Asset Sales required to be used for such prepayment (excluding amounts subject to
any Reinvestment Notice or set forth in the Pending Reinvestment Certificate, in each case,
in respect of which the Reinvestment Prepayment Date has not occurred), together with the
Net Cash Proceeds of Bridge Asset Sales required to be used for such prepayment, exceeds
$100,000,000. The Net Cash Proceeds arising from a Qualifying Asset Sale to a Supermajority
Subsidiary (the “Initial QAS”) shall not be considered as Net Cash Proceeds for purposes of this Section 2.10(b)(iii) unless and until the property that
was the subject of such Initial QAS is the subject of a Qualifying Asset Sale to a Person
that is not a Supermajority Subsidiary (the “Secondary QAS”), and the Reinvestment
Prepayment Date with respect to the Net Cash Proceeds received for such Initial QAS shall
not be deemed to occur unless and until a Reinvestment Prepayment Date shall occur in
respect of such Secondary QAS; and
(iv) as of the last day of each fiscal quarter of the Borrower following the Borrowing
Date and as of the effective date of any increase in the commitments available to be drawn
under the Revolving Credit Agreement following the Borrowing Date, 100% of the amount, if
any, by which Revolver Availability at such date (and after giving effect to any such
increase in such commitments) exceeds $2,000,000,000, which determination shall be made
within five Business Days of such last day of the fiscal quarter or such effective date, as
applicable.
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Amounts to be applied pursuant to this Section 2.10(b) shall be applied to reduce the Loans of
each Lender on a pro rata basis.
(c) The Borrower shall notify (in the case of a prepayment under paragraph (b) of this
Section, to the extent practicable) the Administrative Agent by telephone (confirmed by facsimile)
of any prepayment hereunder in accordance with Schedule 2.03(A). Each such notice in respect of a
prepayment under paragraph (a) of this Section shall be irrevocable, and each such notice shall
specify the prepayment date and the principal amount of each Borrowing or portion thereof to be
prepaid; provided that, a notice of prepayment delivered by the Borrower may state that
such notice is conditioned upon the effectiveness of other credit facilities, in which case such
notice may be revoked by the Borrower (by notice to the Administrative Agent on or prior to the
specified effective date) if such condition is not satisfied. Promptly following receipt of any
such notice relating to a Borrowing, the Administrative Agent shall advise the Lenders of the
contents thereof. Each partial prepayment of any Borrowing shall be in an amount that would be
permitted in the case of an advance of a Borrowing of the same Type as provided in Section 2.02.
Prepayments shall be accompanied by accrued interest to the extent required by Section 2.12.
SECTION 2.11. Fees. (a) At any time that the Administrative Agent is not Time Warner or an Affiliate thereof,
the Borrower agrees to pay to the Administrative Agent, for its own account, customary
administration fees payable in the amounts and at the times separately agreed upon between the
Borrower and the Administrative Agent.
(b) All fees payable hereunder shall be paid on the dates due, in immediately available funds,
to the Administrative Agent for distribution to the Lenders entitled thereto. Fees paid shall not
be refundable under any circumstances absent manifest error in the calculation and/or payment
thereof.
(c) The Borrower agrees to pay to the Administrative Agent for the account of each Lender a
duration fee (a “Duration Fee”) (i) on the Borrowing Date in an amount equal to 50 Basis
Points on the aggregate principal amount of the Loans borrowed on the Borrowing Date and (ii) on
the first anniversary of the Borrowing Date in an amount equal to 50 Basis Points on the aggregate
principal amount of the Loans outstanding on such date.
SECTION 2.12. Interest. (a) The Loans comprising each ABR Borrowing shall bear interest at a rate per annum equal
to the Alternate Base Rate plus the Applicable Margin plus the Step-Up Margin.
(b) The Loans comprising each Eurodollar Borrowing shall bear interest at a rate per annum
equal to the Adjusted LIBO Rate for the Interest Period in effect for such Borrowing plus
the Applicable Margin plus the Step-Up Margin.
(c) Notwithstanding the foregoing, if any principal of or interest on any Loan or any fee or
other amount payable by the Borrower hereunder is not paid when due, whether at stated maturity,
upon acceleration or otherwise, such overdue amount shall bear interest, after as well as before
judgment, at a rate per annum equal to (i) in the case of overdue principal of any
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Loan, 2%
plus the rate otherwise applicable to such Loan as provided above or (ii) in the case of
any other amount, 2% plus the rate applicable to ABR Loans as provided above.
(d) Accrued interest on each Loan shall be payable in arrears on each Interest Payment Date
for such Loan; provided that (i) interest accrued pursuant to paragraph (c) of this Section
shall be payable on demand, (ii) in the event of any repayment or prepayment of any Loan (other
than a prepayment of an ABR Loan), accrued interest on the principal amount repaid or prepaid shall
be payable on the date of such repayment or prepayment, (iii) in the event of any conversion of any
Eurodollar Loan prior to the end of the current Interest Period therefor, accrued interest on such
Loan shall be payable on the effective date of such conversion and (iv) all accrued interest shall
be payable upon the Maturity Date.
(e) All interest hereunder shall be computed on the basis of a year of 360 days for actual
days elapsed, except that interest computed by reference to the Alternate Base Rate at times when
the Alternate Base Rate is based on the Prime Rate shall be computed on the basis of a year of 365
days (or 366 days in a leap year). The Alternate Base Rate, Adjusted LIBO Rate and LIBO Rate shall
be determined by the Administrative Agent, and such determination shall be conclusive absent
manifest error.
SECTION 2.13. Alternate Rate of Interest. If prior to the commencement of any Interest Period for a Eurodollar Borrowing:
(a) the Administrative Agent determines (which determination shall be conclusive absent
manifest error) that adequate and reasonable means do not exist for ascertaining for such
Interest Period the Adjusted LIBO Rate; or
(b) the Administrative Agent is advised by the Required Lenders that for such Interest
Period the Adjusted LIBO Rate will not adequately and fairly reflect the cost to such
Lenders of making or maintaining their Loans included in such Borrowing for such Interest
Period;
then the Administrative Agent shall give notice thereof to the Borrower and the Lenders by
telephone or facsimile as promptly as practicable thereafter and, until the Administrative Agent
notifies the Borrower and the Lenders that the circumstances giving rise to such notice no longer
exist, (i) any Interest Election Request that requests the conversion of any Borrowing to, or
continuation of any Borrowing as, a Eurodollar Borrowing shall be ineffective and any such
Borrowing referred to in such Interest Election Request shall, unless repaid by the Borrower, be
converted to (as of the last day of the then current Interest Period), or maintained as, an ABR
Borrowing, as the case may be (to the extent, in the Administrative Agent’s reasonable
determination, it is practicable to do so), and (ii) if the Borrowing Request requests a Eurodollar
Borrowing, such Borrowing shall, unless otherwise rescinded by the Borrower, be made as an ABR Loan
(to the extent, in the Administrative Agent’s reasonable determination, it is practicable to do
so), and if the circumstances giving rise to such notice affect fewer than all Types of Borrowings,
then the other Types of Borrowings shall be permitted.
SECTION 2.14. Increased Costs. (a) If any Change in Law shall:
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(i) impose, modify or deem applicable any reserve, special deposit or similar
requirement against assets of, deposits with or for the account of, or credit extended by,
any Lender (except any such reserve requirement reflected in the Adjusted LIBO Rate); or
(ii) impose on any Lender or the London interbank market any other condition affecting
this Agreement or Eurodollar Loans made by such Lender;
and the result of any of the foregoing shall be to increase the cost to such Lender of making or
maintaining any Eurodollar Loan (or of maintaining its obligation to make any such Loan) or to
reduce the amount of any sum received or receivable by such Lender hereunder (whether of principal,
interest or otherwise), then the Borrower will pay to such Lender such additional amount or amounts
as will compensate such Lender for such additional costs actually incurred or reduction actually
suffered.
(b) If any Lender determines that any Change in Law regarding capital requirements has or
would have the effect of reducing the rate of return on such Lender’s capital or on the capital of
such Lender’s holding company, if any, as a consequence of the Loans made by such Lender, to a
level below that which such Lender or such Lender’s holding company could have achieved but for
such Change in Law (taking into consideration such Lender’s policies and the policies of such
Lender’s holding company with respect to capital adequacy), then from time to time the Borrower
will pay to such Lender such additional amount or amounts as will compensate such Lender or such
Lender’s holding company for any such reduction actually suffered in respect of the Loans made by
such Lender hereunder.
(c) A certificate of a Lender setting forth in reasonable detail the amount or amounts
necessary to compensate such Lender or its holding company, as the case may be, as specified in
paragraph (a) or (b) of this Section shall be delivered to the Borrower and shall be conclusive
absent manifest error. The Borrower shall pay such Lender the amount shown as due on any such
certificate within 10 days after receipt thereof.
(d) Failure or delay on the part of any Lender to demand compensation pursuant to this Section
shall not constitute a waiver of such Lender’s right to demand such compensation; provided
that the Borrower shall not be required to compensate a Lender pursuant to this Section for any
increased costs or reductions unless a Lender gives notice to the Borrower that it is obligated to
pay an amount under this Section within six months after the later of (i) the date the Lender
incurs such increased costs, reduction in amounts received or receivable or reduction in return on
capital or (ii) the date such Lender has actual knowledge of its incurrence of such increased cost,
reduction in amounts received or receivable or reduction in return on capital; provided
further that, if the Change in Law giving rise to such increased costs or reductions is
retroactive, then the six-month period referred to above shall be extended to include the period of
retroactive effect thereof.
Notwithstanding any other provision of this Section 2.14, no Lender shall demand compensation
for any increased costs or reduction referred to above if it shall not be the general policy or
practice of such Lender to demand such compensation in similar circumstances under comparable
provisions of other credit agreements, if any (it being understood that (i) this
34
sentence shall not
in any way limit the discretion of any Lender to waive the right to demand such compensation in any
given case and (ii) Time Warner shall be entitled to compensation pursuant to the terms hereof
notwithstanding the fact that it may not have any such general policy or practice as a result of
the fact that lending is not its primary business).
SECTION 2.15. Break Funding Payments. In the event of (a) the payment of any principal of any Eurodollar Loan other than on the
last day of an Interest Period applicable thereto (including as a result of an Event of Default),
(b) the conversion of any Eurodollar Loan other than on the last day of the Interest Period
applicable thereto, (c) the failure to borrow, convert, continue or prepay any Loan on the date
specified in any notice delivered pursuant hereto (regardless of whether such notice is permitted
to be revocable under Section 2.10(c) and is revoked in accordance herewith), or (d) the assignment
of any Eurodollar Loan other than on the last day of the Interest Period applicable thereto as a
result of a request by the Borrower pursuant to Section 2.18, then, in any such event, the Borrower
shall compensate each Lender for the loss, cost and expense attributable to such event. In the
case of a Eurodollar Loan, the loss to any Lender attributable to any such event shall be deemed to
be the amount determined by such Lender to be equal to the excess, if any, of (i) the amount of
interest that such Lender would pay for a deposit in Dollars equal to the principal amount of such
Loan for the period from the date of such payment, conversion, failure or assignment to the last
day of the then current Interest Period for such Loan (or, in the case of a failure to borrow,
convert or continue, the duration of the Interest Period that would have resulted from such
borrowing, conversion or continuation) if the interest rate payable on such deposit were equal to
the Adjusted LIBO Rate for such Interest Period, over (ii) the amount of interest that such Lender
would earn on such principal amount for such period if such Lender were to invest such principal amount for such period at the interest rate that would be bid by
such Lender (or an affiliate of such Lender) for deposits in Dollars from other banks in the
Eurodollar market at the commencement of such period (it being understood that, in the case of Time
Warner, the interest rate for such period shall be equal to the Adjusted LIBO Rate in effect two
Business Days prior to the date of such payment, conversion, failure or assignment). A certificate
of any Lender setting forth in reasonable detail any amount or amounts that such Lender is entitled
to receive pursuant to this Section shall be delivered to the Borrower and shall be conclusive
absent manifest error. The Borrower shall pay such Lender the amount shown as due on any such
certificate within 10 days after receipt thereof.
SECTION 2.16. Taxes. (a) Any and all payments by or on account of any obligation of the Borrower hereunder
shall be made free and clear of and without deduction for any Indemnified Taxes or Other Taxes;
provided that if the Borrower shall be required to deduct any Indemnified Taxes or Other
Taxes from such payments, then (i) the sum payable shall be increased as necessary so that after
making all required deductions (including deductions applicable to additional sums payable under
this Section) the Administrative Agent or Lender (as the case may be) receives an amount equal to
the sum it would have received had no such deductions been made, (ii) the Borrower shall make such
deductions and (iii) the Borrower shall pay the full amount deducted to the relevant Governmental
Authority in accordance with applicable law.
(b) The Borrower shall indemnify the Administrative Agent and each Lender, within 10 days
after written demand therefor, for the full amount of any Indemnified Taxes or
35
Other Taxes
(including Indemnified Taxes or Other Taxes imposed or asserted on or attributable to amounts
payable by the Borrower under this Section unless such amounts have been included in any amount
paid pursuant to the proviso to Section 2.16(a)) paid by the Administrative Agent or such Lender,
as the case may be, and any penalties, interest and reasonable expenses arising therefrom or with
respect thereto, whether or not such Indemnified Taxes or Other Taxes were correctly or legally
imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such
payment or liability delivered to the Borrower by a Lender, or by the Administrative Agent on its
own behalf or on behalf of a Lender, shall be conclusive absent manifest error.
(c) If a Lender or the Administrative Agent receives a refund in respect of any Indemnified
Taxes or Other Taxes as to which it has been indemnified by the Borrower or with respect to which
the Borrower has paid additional amounts pursuant to this Section 2.16, it shall within 30 days
from the date of such receipt pay over such refund to the Borrower (but only to the extent of
indemnity payments made, or additional amounts paid, by the Borrower under this Section 2.16 with
respect to the Indemnified Taxes or Other Taxes giving rise to such refund, as determined by such
Lender in its reasonable discretion), net of all out-of-pocket expenses of such Lender or the
Administrative Agent and without interest (other than interest paid by the relevant Governmental
Authority with respect to such refund); provided that the Borrower, upon the request of
such Lender or the Administrative Agent, agrees to repay the amount paid over to the Borrower (plus
penalties, interest or other charges imposed by the relevant Governmental Authority) to such Lender
or the Administrative Agent in the event such Lender or the Administrative Agent is required to
repay such refund to such Governmental Authority.
(d) As soon as practicable after any payment of Indemnified Taxes or Other Taxes by the
Borrower to a Governmental Authority, the Borrower shall deliver to the Administrative Agent the
original or a certified copy of a receipt issued by such Governmental Authority evidencing such
payment, a copy of the return reporting such payment or other evidence of such payment reasonably
satisfactory to the Administrative Agent.
(e) Any Foreign Lender that is entitled to an exemption from or reduction of 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.
(f) Any Lender that is a U.S. Person shall deliver to the Borrower (with a copy to the
Administrative Agent) a statement signed by an authorized signatory of the Lender that it is a U.S.
Person and, if necessary to avoid United States backup withholding, a duly completed and signed
Internal Revenue Service Form W-9 (or successor form) establishing that such Lender is organized
under the laws of the United States and is not subject to United States backup withholding.
(g) Nothing in this Section shall be construed to require any Lender to disclose any
confidential information regarding its tax returns or affairs.
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SECTION 2.17. Payments Generally; Pro Rata Treatment; Sharing of Setoffs. (a) The Borrower shall make each payment required to be made by it hereunder (whether of
principal, interest or fees, or of amounts payable under Section 2.14, 2.15 or 2.16, or otherwise)
prior to 1:00 p.m., New York time, on the date when due, in immediately available funds, without
setoff or counterclaim. Any amounts received after such time on any date shall, unless the
Administrative Agent is able to distribute such amounts to the applicable Lenders on such date, be
deemed to have been received on the next succeeding Business Day for purposes of calculating
interest thereon. All such payments shall be made to the Administrative Agent in New York at the
offices for the Administrative Agent set forth in Section 9.01, except that payments pursuant to
Sections 2.14, 2.15, 2.16 and 9.03 shall be made directly to the Persons entitled thereto. The
Administrative Agent shall distribute any such payments received by it for the account of any other
Person to the appropriate recipient in like funds promptly following receipt thereof. If any
payment hereunder shall be due on a day that is not a Business Day, the date for payment shall be
extended to the next succeeding Business Day, and, in the case of any payment accruing interest,
interest thereon shall be payable for the period of such extension. All payments hereunder,
whether such payments are made in respect of principal, interest or fees or other amounts payable
hereunder, shall be made in Dollars. All payments and reductions in Commitments shall be applied
pro rata to the Lenders.
(b) If at any time insufficient funds are received by and available to the Administrative
Agent to pay fully all amounts of principal, interest and fees then due from the Borrower
hereunder, such funds shall be applied (i) first, to pay interest and fees then due from the Borrower hereunder, ratably among the parties entitled thereto in accordance with the
amounts of interest and fees then due to such parties, and (ii) second, to pay principal, then due
from the Borrower hereunder, ratably among the parties entitled thereto in accordance with the
amounts of principal then due to such parties.
(c) If any Lender shall, by exercising any right of setoff or counterclaim or otherwise,
obtain payment in respect of any principal of or interest on any of its Loans resulting in such
Lender receiving payment of a greater proportion of the aggregate amount of its Loans and accrued
interest thereon owing by the Borrower than the proportion received by any other Lender, then the
Lender receiving such greater proportion shall purchase (for cash at face value) participations in
the Loans of other Lenders owing from the Borrower to the extent necessary so that the benefit of
all such payments shall be shared by the Lenders ratably in accordance with the aggregate amount of
principal of and accrued interest on their respective Loans; provided that (i) if any such
participations are purchased and all or any portion of the payment giving rise thereto is
recovered, such participations shall be rescinded and the purchase price restored to the extent of
such recovery, without interest, and (ii) the provisions of this paragraph shall not be construed
to apply to any payment (x) made by the Borrower pursuant to and in accordance with the express
terms of this Agreement, (y) obtained by a Lender as consideration for the assignment of or sale
of a participation in any of its Loans other than to the Borrower or any Subsidiary or Affiliate
thereof (as to which the provisions of this paragraph shall apply) or (z) obtained or received by
Time Warner (or any Affiliate of Time Warner) pursuant to any other agreement or arrangement in
which it is acting other than in a capacity as a Lender hereunder. The Borrower consents to the
foregoing and agrees, to the extent it may effectively do so under applicable law, that any Lender
acquiring a participation pursuant to the foregoing arrangements
37
may exercise against the Borrower
rights of setoff and counterclaim with respect to such participation as fully as if such Lender
were a direct creditor of the Borrower in the amount of such participation.
(d) Unless the Administrative Agent shall have received notice from the Borrower prior to the
date on which any payment is due from the Borrower to the Administrative Agent for the account of
the Lenders hereunder that the Borrower will not make such payment, the Administrative Agent may
assume that the Borrower has made such payment on such date in accordance herewith and may, in
reliance upon such assumption, distribute to the Lenders, the amount due. In such event, if the
Borrower has not in fact made such payment, then each of the Lenders, severally agrees to repay to
the Administrative Agent forthwith on demand the amount so distributed to such Lender with interest
thereon, for each day from and including the date such amount is distributed to it to but excluding
the date of payment to the Administrative Agent, at the Federal Funds Effective Rate.
(e) If any Lender shall fail to make any payment required to be made by it pursuant to Section
2.06(b) or 2.17(d), then the Administrative Agent may, in its discretion (notwithstanding any
contrary provision hereof), apply any amounts thereafter received by the Administrative Agent for
the account of such Lender from or on behalf of any Credit Party or otherwise in respect of the
Obligations to satisfy such Lender’s obligations under such Sections until all such unsatisfied
obligations are fully paid.
SECTION 2.18. Mitigation Obligations; Replacement of Lenders. (a) If any Lender requests compensation under Section 2.14, or if the Borrower is required
to pay any additional amount to any Lender or any Governmental Authority for the account of any
Lender pursuant to Section 2.16, then such Lender shall use reasonable efforts to designate a
different lending office for funding or booking its Loans hereunder or to assign its rights and
obligations hereunder to another of its offices, branches or affiliates, if, in the judgment of
such Lender, such designation or assignment (i) would eliminate or reduce amounts payable pursuant
to Section 2.14 or 2.16, as the case may be, in the future and (ii) would not subject such Lender
to any unreimbursed cost or expense and would not otherwise be materially disadvantageous to such
Lender. The Borrower hereby agrees to pay all reasonable costs and expenses incurred by any Lender
in connection with any such designation or assignment.
(b) If any Lender requests compensation under Section 2.14, or if the Borrower is required to
pay any additional amount to any Lender or any Governmental Authority for the account of any Lender
pursuant to Section 2.16, or if any Lender becomes a Defaulting Lender hereunder, then the Borrower
may, at its sole expense and effort, upon notice to such Lender and the Administrative Agent,
require such Lender to assign and delegate, without recourse (in accordance with and subject to the
restrictions contained in Section 9.04), all its interests, rights and obligations under this
Agreement to an assignee that shall assume such obligations (which assignee may be another Lender,
if a Lender accepts such assignment); provided that (i) the Borrower shall have received
the prior written consent of the Administrative Agent, which consent shall not unreasonably be
withheld, (ii) such Lender shall have received payment of an amount equal to the outstanding
principal of its Loans, accrued interest thereon, accrued fees and all other amounts payable to it
hereunder, from the assignee (to the extent of such outstanding principal and accrued interest and
fees) or the Borrower (in the case of all other
38
amounts) and (iii) in the case of any such assignment resulting from a claim for compensation under Section 2.14 or payments required to be
made pursuant to Section 2.16, such assignment will be made to a Lender reasonably expected to
result in a reduction in the compensation or payments to be paid by the Borrower pursuant to such
sections. A Lender shall not be required to make any such assignment and delegation if, prior
thereto, as a result of a waiver by such Lender or otherwise, the circumstances entitling the
Borrower to require such assignment and delegation cease to apply.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants (as to itself and the Restricted Subsidiaries) to the
Lenders that:
SECTION 3.01. Organization; Powers.
Each Credit Party and each of the Restricted Subsidiaries is duly organized, validly
existing and in good standing under the laws of the jurisdiction of its organization, has all
requisite power and authority to carry on its business as now conducted and, except where the
failure to do so, individually or in the aggregate, could not reasonably be expected to result in a
Material Adverse Effect, is qualified to do business in, and is in good standing in, every
jurisdiction where such qualification is required.
SECTION 3.02. Authorization; Enforceability.
The Transactions are within each Credit Party’s corporate or partnership (as the case may
be) powers and have been duly authorized by all necessary corporate or partnership (as the case may
be) and, if required, stockholder or partner action of such Credit Party. Each Credit Document
(other than each Note) has been, and each Note when delivered hereunder will have been, duly
executed and delivered by each Credit Party party thereto. Each Credit Document (other than each
Note) constitutes, and each Note when delivered hereunder will be, a legal, valid and binding
obligation of each Credit Party party thereto, enforceable in accordance with its terms, subject to
applicable bankruptcy, insolvency, reorganization, moratorium or other laws affecting creditors’
rights generally and subject to general principles of equity, regardless of whether considered in a
proceeding in equity or at law.
SECTION 3.03. Governmental Approvals; No Conflicts.
The Transactions (a) do not require any consent or approval of, registration or filing
with, or any other action by, any Governmental Authority, except such as have been obtained or made
and are in full force and effect, (b) will not violate (i) any applicable law or regulation or (ii)
the charter, by-laws, partnership agreements or other organizational documents of any Credit Party
or any Restricted Subsidiary or any order of any Governmental Authority, (c) will not violate or
result in a default under any indenture, agreement or other instrument binding upon any Credit
Party or any Restricted Subsidiary or its assets, or give rise to a right thereunder to require any
payment to be made by any Credit Party or any Restricted Subsidiary and (d) will not result in the
creation or imposition of any Lien on any asset of any Credit Party or any Restricted Subsidiary;
except, in each case (other than clause (b)(ii) with respect to the Borrower), such as could not,
individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect.
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SECTION 3.04. Financial Condition; No Material Adverse Change.
(a) The audited consolidated balance sheet and statements of operations, stockholders
equity and cash flows (including the notes thereto) of the Borrower and its consolidated
Subsidiaries as of and for the twelve months ended December 31, 2007, reported on by Ernst & Young
LLP, independent public accountants, copies of which have heretofore been furnished to each Lender,
when combined with all public filings with the SEC by the Borrower since December 31, 2007 and
prior to the Effective Date, present fairly, in all material respects, the financial position and
results of operations and cash flows of the Borrower and its consolidated Subsidiaries, as of such
date and for such period, in accordance with GAAP.
(b) The unaudited consolidated balance sheet and the statements of operations, stockholders
equity and cash flows of the Borrower and its consolidated Subsidiaries as of and for the
three-month period ended March 31, 2008, copies of which have heretofore been furnished to each
Lender, when combined with all public filings with the SEC by the Borrower since March 31, 2008 and
prior to the Effective Date, present fairly, in all material
respects, the financial position and results of operations and cash flows of the Borrower and
its consolidated Subsidiaries, as of such date and for such period, in accordance with GAAP,
subject to normal year-end adjustments and the absence of footnotes.
(c) Since December 31, 2007 there has been no material adverse change in the business, assets,
operations or financial condition of the Borrower and its consolidated Subsidiaries, taken as a
whole.
SECTION 3.05. Properties.
(a) The Borrower and each of the Restricted Subsidiaries has good title to, or valid
leasehold interests in, all its real and personal property, except for defects in title or
interests that could not reasonably be expected to result in a Material Adverse Effect.
(b) The Borrower and each of the Restricted Subsidiaries owns, or is licensed to use, all
trademarks, trade names, copyrights, patents and other intellectual property material to its
business, and the use thereof by the Borrower or any of the Restricted Subsidiaries does not
infringe upon the rights of any other Person, except for any such infringements that, individually
or in the aggregate, could not reasonably be expected to result in a Material Adverse Effect.
SECTION 3.06. Litigation and Environmental Matters.
(a) There are no actions, suits, investigations or proceedings by or before any arbitrator
or Governmental Authority pending against or, to the knowledge of the Borrower, threatened against
or affecting the Borrower or any of the Restricted Subsidiaries (i) which could reasonably be
expected to be adversely determined and that, if adversely determined, could reasonably be
expected, individually or in the aggregate, to result in a Material Adverse Effect or (ii) that
involve this Agreement or the Transactions.
(b) Except with respect to any matters that, individually or in the aggregate, could not
reasonably be expected to result in a Material Adverse Effect, (x) neither the Borrower nor any of
the Restricted Subsidiaries (i) has failed to comply with any Environmental Law or to obtain,
maintain or comply with any permit, license or other approval required under any Environmental Law,
(ii) has become subject to any Environmental Liability or (iii) has received
40
notice of any claim with respect to any Environmental Liability and (y) the Borrower has no knowledge of any basis for
any Environmental Liability on the part of any of the Restricted Subsidiaries.
SECTION 3.07. Compliance with Laws and Agreements.
The Borrower and each of the Restricted Subsidiaries is in compliance with all laws,
regulations and orders of any Governmental Authority applicable to it or its property and all
indentures, agreements and other instruments binding upon it or its property, except where the
failure to do so, individually or in the aggregate, could not reasonably be expected to result in a
Material Adverse Effect. No Event of Default has occurred and is continuing.
SECTION 3.08. Government Regulation; Margin Regulations.
Neither the Borrower nor any of the Restricted Subsidiaries is (a) an “investment company”
as defined in, or subject to regulation under, the Investment Company Act of 1940, or (b) is
subject to any other statute or regulation which regulates the incurrence of indebtedness for
borrowed money, other than, in the case of this paragraph (b), Federal and state securities laws
and as could not, individually or in the aggregate, reasonably be expected to result in a Material
Adverse Effect. No part of the proceeds of any Loans will be used (a) 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 in any manner that violates the provisions of the
regulations of the Board or (b) 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.
SECTION 3.09. Taxes.
The Borrower and each of its Restricted Subsidiaries has timely filed or caused to be filed
all Tax returns and reports required to have been filed and has paid or caused to be paid all Taxes
required to have been paid by it or as part of the consolidated group of which it is a member,
except (a) Taxes that are being contested in good faith by appropriate proceedings and for which
the Borrower or such Restricted Subsidiary, as applicable, has set aside on its books adequate
reserves in accordance with GAAP or (b) to the extent that the failure to do so could not
reasonably be expected to result in a Material Adverse Effect.
SECTION 3.10. ERISA.
No ERISA Event has occurred or is reasonably expected to occur that, when taken together
with all other such ERISA Events for which liability is reasonably expected to occur, could
reasonably be expected to result in a Material Adverse Effect.
SECTION 3.11. Disclosure.
As of the Effective Date, all information heretofore or contemporaneously furnished by or
on behalf of the Borrower or any of the Restricted Subsidiaries (including all information
contained in the Credit Documents and the annexes, schedules and other attachments to the Credit
Documents, but not including any projected financial statements), when taken together with the
reports and other filings with the SEC made under the Exchange Act by the Borrower since December
31, 2007, is, and all other such information hereafter furnished, including all information
contained in any of the Credit Documents, including any annexes or schedules thereto, by or on
behalf of the Borrower or any of the Restricted Subsidiaries to or on behalf of any Lender is and
will be (as of their respective
41
dates and the Effective Date), true and accurate in all material
respects and not incomplete by omitting to state a material fact to make such information not
misleading at such time. There is no fact of which the Borrower is aware which has not been
disclosed to the Lenders in writing pursuant to the terms of this Agreement prior to the date
hereof and which, singly or in the aggregate with all such other facts of which the Borrower is
aware, could reasonably be expected to result in a Material Adverse Effect. All statements of fact
and representation concerning the present business, operations and assets of the Borrower or any of its Subsidiaries, the Credit Documents and the transactions referred to
therein are true and correct in all material respects.
SECTION 3.12. Solvency.
As of the Effective Date, the Borrower is Solvent.
ARTICLE IV
CONDITIONS
SECTION 4.01. Effective Date. This Agreement shall not become effective until the date on which each of the following
conditions is satisfied (or waived in accordance with Section 9.02):
(a) Credit Documents. The Administrative Agent (or its counsel) shall have
received (i) this Agreement executed and delivered by each party hereto and (ii) the
Guarantee, executed and delivered by each Guarantor.
(b) Opinion of Counsel. The Administrative Agent shall have received the
favorable written opinions (addressed to the Administrative Agent and the Lenders and dated
the Effective Date) of (i) Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx LLP, counsel for the
Credit Parties and (ii) in-house counsel to the Credit Parties, in each case in form and
substance reasonably satisfactory to the Administrative Agent. The Borrower hereby requests
each such counsel to deliver such opinions.
(c) Separation Agreement. The Separation Agreement shall not have been
terminated.
(d) Authorizations, etc. The Administrative Agent shall have received such
documents and certificates as the Administrative Agent or its counsel may reasonably request
relating to the organization, existence and good standing of the Credit Parties, the
authorization of the Transactions and any other legal matters relating to each Credit Party,
this Agreement or the Transactions, all in form and substance satisfactory to the
Administrative Agent and its counsel.
(e) U.S.A. PATRIOT Act. The Administrative Agent shall have received for each
Lender (other than Time Warner) all U.S.A. PATRIOT Act information required under Section
9.15.
Without limiting the generality of the provisions of Article VIII, for purposes of determining
compliance with the conditions specified in this Section 4.01, each Lender that has
42
signed this Agreement shall be deemed to have accepted, and to be satisfied with, each document or other matter
required under this Section 4.01 unless the Administrative Agent shall have received notice from
such Lender prior to the proposed Effective Date specifying its objection thereto.
SECTION 4.02. Borrowing Date.
The obligation of each Lender to make the Loan to be made by it is subject to the satisfaction,
prior to or concurrently with the making of such Loan on the Borrowing Date, of the following
conditions:
(a) Representations and Warranties. The representations and warranties of the
Borrower set forth in the Credit Documents (other than those set forth in Sections 3.04(c),
3.06, 3.09 and 3.10) shall be true and correct in all material respects on and as of such
date; provided that any such representations and warranties which expressly relate to a
given date or period shall be subject to accuracy in all material respects as of the
respective date or for the respective period, as the case may be.
(b) No Default. At the time of, and, solely for the purpose of determining
compliance with Section 6.02, immediately after giving effect to the Borrowing on such date,
no (i) Default or Event of Default or (ii) Event of Default (as defined in the Revolving
Credit Agreement) under the Revolving Credit Agreement shall have occurred and be
continuing.
(c) Bridge Facility Credit Agreement. The final maturity of the Bridge
Facility Credit Agreement following extension thereof shall occur concurrently (the date of
such final maturity after extension of the Bridge Facility Credit Agreement, the “Final
Bridge Maturity Date”), and the Borrower shall have taken all actions reasonably
necessary and appropriate to ensure the immediate application of the proceeds of the Loans
hereunder to repay amounts outstanding under the Bridge Facility Credit Agreement;
provided that Final Bridge Maturity Date shall occur on the date that is one year
and 364 days from the date that the loans are borrowed under the Bridge Facility Credit
Agreement, or if such day is not a Business Day, on the next succeeding Business Day.
(d) Fees. The Borrower shall have paid all fees required to be paid on or
before the Borrowing Date by the Borrower in connection with the credit facility provided
for in this Agreement.
(e) Pending Reinvestment Certificate: The Borrower shall have delivered to the
Administrative Agent the Pending Reinvestment Certificate.
The Borrowing shall be deemed to constitute a representation and warranty by the Borrower on
the date thereof as to the applicable matters specified in paragraphs (a) and (b) of this Section.
SECTION 4.03. Satisfaction of Conditions..
Notwithstanding the fact that the covenants set forth in Articles V and VI and the Events of
Default set forth in Article VII shall only be applicable upon and after the Borrowing Date, for
purposes of determining whether the
43
conditions set forth in Section 4.02 to each Lender’s
obligation to make the Loans to be made by it have been satisfied, compliance by the Borrower
with the provisions set forth in Articles V, VI and VII shall be measured as of the Borrowing Date
as if the same were in effect on the Borrowing Date immediately prior to the making of the Loans;
provided that (a) the Consolidated Leverage Ratio on the Borrowing Date shall be calculated
on a pro forma basis (after giving effect to the repayment of the loans outstanding under the
Bridge Facility Credit Agreement and the Borrowing) as of the last day of the fiscal quarter most
recently ended prior to the Borrowing Date for which financial statements of the Borrower have
been, or are required to be, delivered to the lenders under the Bridge Facility Credit Agreement;
and (b) solely for the purpose of determining satisfaction of the condition set forth in Section
4.02(b) that no Default exists as of the Borrowing Date, no Default shall be deemed to exist with
respect to a breach of (i) any affirmative covenant in Article V that is not qualified by “Material
Adverse Effect” unless the same would or could reasonably be expected to have a Material Adverse
Effect, (ii) Section 5.01 with respect to delivery of financial statements relating to a period
ending prior to the Borrowing Date or (iii) Section 5.02 with respect to delivery of notices
relating to events occurring prior to the Borrowing Date.
ARTICLE V
AFFIRMATIVE COVENANTS
Upon and after the Borrowing Date and until the principal of and interest on each Loan, all
fees payable hereunder and all other Obligations shall have been paid in full, the Borrower (for
itself and the Restricted Subsidiaries) covenants and agrees with the Lenders that:
SECTION 5.01. Financial Statements and Other Information.
The Borrower will furnish to the Administrative Agent at its New York office (who will
distribute copies to each Lender):
(a) within 105 days after the end of each fiscal year of the Borrower, the Borrower’s
audited consolidated balance sheet and related statements of operations, stockholders’
equity and cash flows as of the end of and for such year and the Borrower’s unaudited
Adjusted Financial Statements for such fiscal year, setting forth in each case in
comparative form the figures for the previous fiscal year, and, (i) in the case of the
audited financial statements, reported on by Ernst & Young LLP or other independent public
accountants of recognized national standing (without a “going concern” or like qualification
or exception and without any qualification or exception as to the scope of such audit) to
the effect that such consolidated financial statements present fairly in all material
respects the financial condition and results of operations of the Borrower and its
consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently
applied and (ii) in the case of the Adjusted Financial Statements, certified by one of the
Borrower’s Financial Officers as presenting fairly in all material respects the financial
condition and results of operations of the Borrower and the consolidated Restricted
Subsidiaries on a consolidated basis in accordance with GAAP consistently applied;
provided that (x) so long as no Event of Default has occurred and is continuing, the
Borrower shall not be required to furnish Adjusted Financial Statements for any fiscal year
if all Unrestricted Subsidiaries (other than any such Unrestricted Subsidiaries that are
already treated as equity investments on the Borrower’s financial statements) on a
44
combined basis would not have constituted a Material Subsidiary for such fiscal year and (y) in no case shall the Borrower be required to deliver any financial statements of
any Guarantor to any Lender;
(b) within 60 days after the end of each of the first three fiscal quarters of each
fiscal year of the Borrower, the Borrower’s unaudited consolidated balance sheet and related
statements of operations, stockholders’ equity and cash flows and the Borrower’s unaudited
Adjusted Financial Statements as of the end of and for such fiscal quarter and the then
elapsed portion of the fiscal year, setting forth in each case in comparative form the
figures for the corresponding period or periods of (or, in the case of the balance sheet, as
of the end of) the previous fiscal year, all certified by one of the Borrower’s Financial
Officers as presenting fairly in all material respects the financial condition and results
of operations of the Borrower and its consolidated Subsidiaries on a consolidated basis in
accordance with GAAP consistently applied, subject to normal year-end adjustments and the
absence of footnotes; provided that (x) so long as no Event of Default has occurred
and is continuing, the Borrower shall not be required to furnish Adjusted Financial
Statements for any fiscal quarter if all Unrestricted Subsidiaries (other than any such
Unrestricted Subsidiaries that are already treated as equity investments on the Borrower’s
financial statements) on a combined basis would not have constituted a Material Subsidiary
for such fiscal quarter and (y) in no case shall the Borrower be required to deliver any
financial statements of any Guarantor to any Lender;
(c) concurrently with any delivery of financial statements under paragraph (a) or (b)
above, a certificate of a Financial Officer of the Borrower (i) certifying as to whether a
Default has occurred and, if a Default has occurred, specifying the details thereof and any
action taken or proposed to be taken with respect thereto, (ii) setting forth reasonably
detailed calculations demonstrating compliance with Sections 6.01, 6.02(a) and 6.03(a) and
(i) and (iii) stating whether any change in GAAP or in the application thereof has occurred
since the date of the audited financial statements referred to in Section 3.04, which has
not been previously disclosed by the Borrower pursuant to this Section 5.01, and, if any
such change has occurred, specifying the effect of such change on the financial statements
accompanying such certificate;
(d) promptly after the same become publicly available, copies of all periodic and other
reports, proxy statements and other materials filed by any Company with the SEC or with any
national securities exchange, or distributed by any Company to its security holders
generally, as the case may be (other than registration statements on Form S-8, filings under
Sections 16(a) or 13(d) of the Exchange Act and routine filings related to employee benefit
plans); and
(e) promptly following any request therefor, such other information regarding the
operations, business affairs and financial condition of the Borrower or any of its
Subsidiaries, or compliance with the terms of this Agreement, as the Administrative Agent or
any Lender may reasonably request (it being understood that the Borrower and such
Subsidiaries shall not be required to provide any information or documents which are subject
to confidentiality provisions the nature of which prohibit such disclosure).
45
Information required to be delivered pursuant to paragraphs (a), (b), (c) and (d) shall be
deemed to have been delivered on the date on which the Borrower provides notice to the
Administrative Agent, or as the case may be the Administrative Agent gives notice to the Lenders,
that such information has been posted on the Borrower’s website on the internet at the website
address listed on the signature pages of such notice, at xxx.xxx.xxx or at another website
identified in such notice and accessible by the Lenders without charge; provided that the
Borrower shall deliver paper copies of the reports and financial statements referred to in
paragraphs (a), (b), (c) and (d) of this Section 5.01 to the Administrative Agent or any Lender who
requests the Borrower to deliver such paper copies until written notice to cease delivering paper
copies is given by the Administrative Agent or such Lender.
The Borrower hereby acknowledges that (a) the Administrative Agent will make available to the
Lenders materials and/or information provided by or on behalf of the Borrower hereunder
(collectively, “Borrower Materials”) by posting the Borrower Materials on IntraLinks or
another similar secure electronic system (the “Platform”) and (b) certain of the Lenders
may be “public-side” Lenders (i.e., Lenders that do not wish to receive material non-public
information with respect to the Borrower or its securities) (each, a “Public Lender”). The
Borrower hereby agrees that so long as the Borrower or any of its Affiliates thereof is the issuer
of any outstanding debt or equity securities that are registered or issued pursuant to a private
offering or is actively contemplating issuing any such securities (i) the Borrower shall act in
good faith to ensure that all Borrower Materials that contain only publicly available information
regarding the Borrower and its business are clearly and conspicuously marked “PUBLIC” which, at a
minimum, shall mean that the word “PUBLIC” shall appear prominently on the first page thereof; (ii)
by marking Borrower Materials “PUBLIC,” the Borrower shall be deemed to have authorized the
Administrative Agent and the Lenders to treat such Borrower Materials as containing only public
information with respect to the Borrower and its business; (iii) all Borrower Materials marked
“PUBLIC” are permitted to be made available through a portion of the Platform designated “Public
Investor;” and (iv) the Administrative Agent shall be responsible for keeping any Borrower
Materials that are not marked “PUBLIC” outside the portion of the Platform designated “Public
Investor.” Notwithstanding the foregoing, the Borrower shall be under no obligation to xxxx any
Borrower Materials “PUBLIC.”
SECTION 5.02. Notices of Material Events.
The Borrower will furnish to the Administrative Agent (who will distribute copies to the
Lenders) prompt written notice of the following, upon any such event becoming known to any
Responsible Officer of the Borrower:
(a) the occurrence of any Default;
(b) the filing or commencement of any action, suit or proceeding by or before any
arbitrator or Governmental Authority against or affecting the Borrower or any Affiliate
thereof that, if adversely determined, could reasonably be expected to result in a Material
Adverse Effect;
(c) the occurrence of any ERISA Event that, alone or together with any other ERISA
Events that have occurred, could reasonably be expected to result in liability to the
Borrower and its Subsidiaries in an aggregate amount exceeding $200,000,000; and
46
(d) any other development that results in, or could reasonably be expected to result
in, a Material Adverse Effect.
Each notice delivered under this Section shall be accompanied by a statement of a Financial
Officer or other executive officer of the Borrower setting forth the details of the event or
development requiring such notice and any action taken or proposed to be taken with respect
thereto.
SECTION 5.03. Existence; Conduct of Business. The Borrower will, and will cause each
of the Restricted Subsidiaries which are Material Subsidiaries to, do or cause to be done all
things necessary to preserve, renew and keep in full force and effect its legal existence and the
rights, licenses, permits, privileges and franchises material to the conduct of its business;
provided that the foregoing shall not prohibit any merger, consolidation, liquidation or
dissolution permitted under Section 6.04.
SECTION 5.04. Payment of Obligations. The Borrower will, and will cause each of the
Restricted Subsidiaries to, pay its obligations, including Tax liabilities, that, if not paid,
could reasonably be expected to result in a Material Adverse Effect, before the same shall become
delinquent or in default, except where (a) the validity or amount thereof is being contested in
good faith by appropriate proceedings, (b) the Borrower or such Restricted Subsidiary has set aside
on its books adequate reserves with respect thereto in accordance with GAAP and (c) the failure to
make payment pending such contest could not reasonably be expected to result in a Material Adverse
Effect.
SECTION 5.05. Maintenance of Properties; Insurance. The Borrower will, and will cause
each of the Restricted Subsidiaries to, (a) keep and maintain all property material to the conduct
of its business (taken as a whole) in good working order and condition, ordinary wear and tear
excepted, and (b) maintain, with financially sound and reputable insurance companies, insurance in
such amounts and against such risks as are customarily maintained by companies engaged in the same
or similar businesses operating in the same or similar locations (it being understood that, to the
extent consistent with prudent business practice, a program of self-insurance for first or other
loss layers may be utilized).
SECTION 5.06. Books and Records; Inspection Rights. The Borrower will, and will cause
each of the Restricted Subsidiaries to, keep proper books of record and account in which full, true
and correct entries are made of all dealings and transactions in relation to its business and
activities. The Borrower will, and will cause each of the Restricted Subsidiaries to, permit any
representatives designated by the Administrative Agent or any Lender, upon reasonable prior notice,
to visit and inspect its properties, to examine its books and records, and to discuss its affairs,
finances and condition with its officers and, so long as a representative of the Borrower is
present, or the Borrower has consented to the absence of such a representative, independent
accountants (in each case subject to the Borrower’s or the Restricted Subsidiaries’ obligations
under applicable confidentiality provisions), all at such reasonable times and as often as
reasonably requested.
SECTION 5.07. Compliance with Laws. The Borrower will, and will cause each of the
Restricted Subsidiaries to, comply with all laws, rules, regulations and orders of any
47
Governmental Authority applicable to it or its property, except where the failure to do so,
individually or in the aggregate, could not reasonably be expected to result in a Material Adverse
Effect.
SECTION 5.08. Use of Proceeds. The proceeds of the Loans will be used to repay on the
Borrowing Date the aggregate unpaid principal amount of loans outstanding under the Bridge Facility
Credit Agreement on the Borrowing Date.
SECTION 5.09. Fiscal Periods; Accounting. The Borrower’s fiscal year will end on
December 31 and its fiscal quarters will end on dates consistent with such fiscal year end.
SECTION 5.10. Additional Guarantors. If any Affiliate incurs or suffers to exist any
Guarantee Obligations in respect of any Indebtedness for borrowed money of the Borrower (other than
the Loans) in an outstanding principal amount individually or in the aggregate in excess of
$200,000,000 for all such Indebtedness, then the Borrower shall promptly cause such Affiliate to
execute and deliver to the Administrative Agent a supplement substantially in the form of Exhibit I
to Exhibit B hereto.
ARTICLE VI
NEGATIVE COVENANTS
Upon and after the Borrowing Date and until the principal of and interest on each Loan, all
fees payable hereunder and all other Obligations have been paid in full, the Borrower covenants and
agrees (for itself and the Restricted Subsidiaries) with the Lenders that:
SECTION 6.01. Consolidated Leverage Ratio. The Consolidated Leverage Ratio as
of the last day of any period of four consecutive fiscal quarters of the Borrower will not exceed
5.00 to 1.00.
SECTION 6.02. Indebtedness. The Borrower will not permit any of the Restricted
Subsidiaries (other than any Guarantor) to, create, incur, assume or permit to exist any
Indebtedness, except:
(a) with respect to all such Restricted Subsidiaries, Indebtedness of up to an
aggregate principal amount of $1,000,000,000 at any time outstanding;
(b) Indebtedness of any such Restricted Subsidiary to the Borrower or any Subsidiary;
(c) Guarantee Obligations of any such Restricted Subsidiary with respect to
Indebtedness of the Borrower or any Wholly Owned Subsidiary which is a Restricted
Subsidiary;
(d) Indebtedness of any such Restricted Subsidiary incurred to finance the acquisition,
construction or improvement of any property, including Capital Lease Obligations and any
Indebtedness assumed in connection with the acquisition of any such
property or secured by a Lien on any such property prior to the acquisition thereof,
and extensions, renewals and replacements of any such Indebtedness that do not increase the
48
outstanding principal amount thereof; provided that the aggregate principal amount
of Indebtedness permitted by this paragraph (d) with respect to any such property shall not
exceed 110% of the purchase price for, or the cost of construction or improvement of, such
property; and
(e) Indebtedness of any Person that becomes a Restricted Subsidiary after the date
hereof; provided that (x) such Indebtedness exists at the time such Person becomes a
Subsidiary and is not created in contemplation of or in connection with such Person becoming
a Subsidiary and (y) such Indebtedness does not, directly or indirectly, have recourse
(including by way of setoff) to the Borrower or any of the Restricted Subsidiaries or any
asset thereof other than to the Person so acquired and its Subsidiaries and the assets of
the Person so acquired and its Subsidiaries.
SECTION 6.03. Liens. The Borrower will not, and will not permit any of the Restricted
Subsidiaries, to create, incur, assume or permit to exist any Lien on any property or asset now
owned or hereafter acquired by it, except:
(a) any Lien on any property or asset of the Borrower or any Subsidiary existing on the
date hereof; provided, that such Lien shall secure only those obligations which it
secures on the date hereof and extensions, renewal and replacements thereof that do not
increase the outstanding principal amount thereof and such Liens do not secure an aggregate
principal amount of Indebtedness in excess of $200,000,000 or apply to property or assets of
the Borrower and the Restricted Subsidiaries in excess of $200,000,000;
(b) any Lien existing on any property or asset prior to the acquisition thereof by the
Borrower or any Subsidiary or existing on any property or asset of any Person that becomes a
Subsidiary after the date hereof prior to the time such Person becomes a Subsidiary;
provided that (i) such Lien is not created in contemplation of or in connection with
such acquisition or such Person becoming a Subsidiary, as the case may be, (ii) such Lien
shall not apply to any other property or assets of the Borrower or any Subsidiary and (iii)
such Lien shall secure only those obligations which it secures on the date of such
acquisition or the date such Person becomes a Subsidiary, as the case may be and extensions,
renewals and replacements thereof that do not increase the outstanding principal amount
thereof;
(c) Liens on property acquired, constructed or improved by the Borrower or any
Subsidiary; provided that (i) such security interests secure Indebtedness permitted
by paragraph (d) of Section 6.02, (ii) the Indebtedness secured thereby does not exceed 110%
of the cost of acquiring, constructing or improving such property and (iii) such security
interests shall not apply to any other property or assets of the Borrower or any of its
Subsidiaries;
(d) any Copyright Liens securing obligations specified in the definition thereof;
49
(e) Liens securing Indebtedness of the Borrower or any Restricted Subsidiary and owing
to the Borrower or to a Restricted Subsidiary;
(f) Liens on interests in or investments in any Unrestricted Subsidiary or in any other
Person that is not a Subsidiary of the Borrower securing Indebtedness of such Unrestricted
Subsidiary or such other Person;
(g) Liens for taxes, assessments or governmental charges or levies not yet due and
payable or which are being contested in good faith by appropriate proceedings;
(h) Liens incidental to the ordinary conduct of the Borrower’s business or the
ownership of its assets which were not incurred in connection with the borrowing of money,
such as carrier’s, warehousemen’s, materialmen’s, landlord’s and mechanic’s liens, and which
do not in the aggregate materially detract from the value of its assets or materially impair
the use thereof in the ordinary course of its business; and
(i) other Liens in respect of property or assets of the Borrower or any Restricted
Subsidiary so long as at the time of the securing of any obligations related thereto, the
aggregate principal amount of all such secured obligations does not exceed 5% of the
Consolidated Total Assets of the Borrower at such time (it being understood that any Lien
permitted under any other paragraph in this Section 6.03 shall not be included in the
computation described in this paragraph).
SECTION 6.04. Mergers, Etc. The Borrower will not, and will not permit any of the
Restricted Subsidiaries to, merge into or consolidate with any other Person, or permit any other
Person to merge into or consolidate with it, or sell, transfer, lease or otherwise dispose of (in
one transaction or in a series of transactions) all or a substantial portion of the Borrower’s
consolidated assets, or all or a substantial portion of the stock of all of the Restricted
Subsidiaries, taken as a whole (in each case, whether now owned or hereafter acquired), or
liquidate or dissolve, unless (a) at the time thereof and immediately after giving effect thereto
no Event of Default shall have occurred and be continuing and (b) after giving effect to any such
transaction, the business, taken as a whole, of the Borrower and the Restricted Subsidiaries shall
not have been altered in a fundamental and substantial manner from that conducted by them, taken as
a whole, immediately prior to the Effective Date, provided that (i) if the Borrower is not the
survivor of any such consolidation or merger involving the Borrower, (A) the Borrower, at the time
thereof and immediately after giving effect thereto, shall be in
compliance on a pro forma basis
with the financial covenants contained in Section 6.01 as if such consolidation or merger had been
consummated (and any related Indebtedness incurred, assumed or repaid in connection therewith had
been incurred, assumed or repaid, as the case may be) on the first day of the most recently
completed four fiscal quarters of the Borrower for which financial statements have been delivered
pursuant to Section 5.01 (as demonstrated by delivery to the Administrative Agent of a certificate
of a Responsible Officer to such effect showing such calculation in reasonable detail prior to or
concurrently with such consolidation or merger), (B) the surviving Person of such consolidation or
merger shall expressly assume all of the Borrower’s rights and obligations under this Agreement and
the other Credit Documents pursuant to documentation reasonably satisfactory to the Administrative
Agent and shall thereafter be deemed to be the Borrower for all purposes hereunder, (C) such
consolidation or
50
merger will not result in a Change in Control and (D) the Administrative Agent shall have
received such legal opinions and certificates in connection therewith as it may reasonably request
and (ii) the Borrower shall not liquidate or dissolve.
SECTION 6.05. Investments. The Borrower will not, and will not cause or permit any of
the Restricted Subsidiaries to, make any Investment (other than any Investment in the ordinary
course of the operation of its business) if, before or after giving effect to the commitment
thereto on a pro forma basis, an Event of Default shall have occurred and be continuing.
SECTION 6.06. Restricted Payments. The Borrower will not declare or make, or agree to
pay or make, directly or indirectly, any Restricted Payment, except the Borrower may (a) declare
and pay dividends with respect to its capital stock payable solely in additional shares of its
common stock and (b) make Restricted Payments so long as after giving effect to the making of such
Restricted Payment, no Event of Default shall have occurred and be continuing on a pro forma basis.
SECTION 6.07. Transactions with Affiliates. The Borrower will not, and will not
permit any of the Restricted Subsidiaries to, directly or indirectly, enter into any material
transaction with any of its Affiliates, except (a) transactions entered into prior to the date
hereof or contemplated by any agreement entered into prior to the date hereof, (b) in the ordinary
course of business or at prices and on terms and conditions not less favorable to the Borrower or
such Subsidiary than could be obtained on an arm’s-length basis from unrelated third parties, (c)
transactions between or among the Borrower and the Restricted Subsidiaries or between or among
Restricted Subsidiaries, (d) any arrangements with officers, directors, representatives or other
employees of the Borrower and its Subsidiaries relating specifically to employment as such and (e)
transactions that are otherwise permitted by this Agreement.
SECTION 6.08. Unrestricted Subsidiaries . (a) Schedule 6.08 sets forth those
Subsidiaries that have been designated as Unrestricted Subsidiaries as of the date hereof, which
Subsidiaries do not include any Guarantor. The Borrower may designate any of its Subsidiaries
(other than a Guarantor) as Unrestricted Subsidiaries from time to time in compliance with the
provisions of this Section 6.08. The Borrower will not designate any of its Subsidiaries as an
Unrestricted Subsidiary unless at the time such Subsidiary is designated as an Unrestricted
Subsidiary, before and after giving effect to such designation on a pro forma basis, no Event of
Default shall have occurred and be continuing, as certified in a certificate of a Responsible
Officer delivered to the Administrative Agent at the time of such designation. Such certificate
also shall state the specific purpose for which such designation is being made. All Subsidiaries
of Unrestricted Subsidiaries shall be Unrestricted Subsidiaries.
(b) The Borrower may designate or re-designate any Unrestricted Subsidiary as a Restricted
Subsidiary from time to time in compliance with the provisions of this Section 6.08. The Borrower
will not designate or re-designate any Unrestricted Subsidiary as a Restricted Subsidiary, unless
at the time such Unrestricted Subsidiary is so designated or re-designated as a Restricted
Subsidiary, after giving effect to such designation or re-designation on a pro
forma basis, no Event of Default shall have occurred and be continuing, as certified in a
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certificate of a Responsible Officer delivered to the Administrative Agent at the time of such
designation or re-designation.
ARTICLE VII
EVENTS OF DEFAULT
If any of the following events (“Events of Default”) shall occur:
(a) the Borrower shall fail to pay any principal of any Loan when and as the same shall
become due and payable, whether at the due date thereof or at a date fixed for prepayment
thereof or otherwise;
(b) the Borrower shall fail to pay any interest on any Loan or any fee or any other
amount (other than an amount referred to in paragraph (a) of this Article) payable under
this Agreement, when and as the same shall become due and payable, and such failure shall
continue unremedied for a period of five days;
(c) any representation or warranty made or deemed made by or on behalf of any Credit
Party in any Credit Document or any amendment or modification thereof, or in any report,
certificate, financial statement or other document furnished pursuant to or in connection
with any Credit Document or any amendment or modification thereof, shall prove to have been
incorrect in any material respect when made or deemed made;
(d) the Borrower shall fail to observe or perform any covenant, condition or agreement
contained in Section 5.02 or 5.03 (with respect to the Borrower’s existence) or in Article
VI;
(e) any Credit Party shall fail to observe or perform any covenant, condition or
agreement contained in the Credit Documents (other than those specified in paragraph (a),
(b) or (d) of this Article), and such failure shall continue unremedied for a period of 30
days after notice thereof from the Administrative Agent (given at the request of any Lender)
to the Borrower;
(f) the Borrower or any Restricted Subsidiary shall fail to make any payment (whether
of principal or interest and regardless of amount) in respect of any Material Indebtedness,
when and as the same shall become due and payable after giving effect to any applicable
grace periods;
(g) any event or condition occurs that results in any Material Indebtedness becoming
due prior to its scheduled maturity or that enables or permits (after giving effect to any
applicable grace periods) the holder or holders of any Material Indebtedness or any trustee
or agent on its or their behalf to cause any Material Indebtedness to become due, or to
require the prepayment, repurchase, redemption or defeasance thereof, prior to its scheduled
maturity; provided that this paragraph (g) shall not apply to secured Indebtedness
that becomes due as a result of the voluntary sale or transfer of the property or assets
securing such Indebtedness;
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(h) an involuntary proceeding shall be commenced or an involuntary petition shall be
filed seeking (i) liquidation, reorganization or other relief in respect of the Borrower or
any Material Subsidiary or its debts, or of a substantial part of its assets, under any
Federal, state or foreign bankruptcy, insolvency, receivership or similar law now or
hereafter in effect or (ii) the appointment of a receiver, trustee, custodian, sequestrator,
conservator or similar official for the Borrower or any Material Subsidiary or for a
substantial part of its assets, and, in any such case, such proceeding or petition shall
continue undismissed for 60 days or an order or decree approving or ordering any of the
foregoing shall be entered;
(i) the Borrower or any Material Subsidiary shall (i) voluntarily commence any
proceeding or file any petition seeking liquidation, reorganization or other relief under
any Federal, state or foreign bankruptcy, insolvency, receivership or similar law now or
hereafter in effect, (ii) consent to the institution of, or fail to contest in a timely and
appropriate manner, any proceeding or petition described in paragraph (h) of this Article,
(iii) apply for or consent to the appointment of a receiver, trustee, custodian,
sequestrator, conservator or similar official for the Borrower or any Material Subsidiary or
for a substantial part of its assets, (iv) file an answer admitting the material allegations
of a petition filed against it in any such proceeding, (v) make a general assignment for the
benefit of creditors or (vi) take any action for the purpose of effecting any of the
foregoing;
(j) the Borrower or any Material Subsidiary shall become unable, admit in writing or
fail generally to pay its debts as they become due;
(k) one or more judgments for the payment of money in an aggregate amount in excess of
$200,000,000 shall be rendered against the Borrower, any Material Subsidiary or any
combination thereof or any action shall be legally taken by a judgment creditor (whose
liquidated judgment, along with those of any other judgment creditor’s, exceeds
$200,000,000) to attach or levy upon any assets of the Borrower or any Material Subsidiary
to enforce any such judgment, and the same shall remain undischarged for a period of 60
consecutive days during which execution shall not be effectively stayed, vacated or bonded
pending appeal;
(l) an ERISA Event shall have occurred that, when taken together with all other ERISA
Events (with respect to which the Borrower has a liability which has not yet been satisfied)
that have occurred, could reasonably be expected to result in a Material Adverse Effect;
(m) except as otherwise permitted by this Agreement or the terms of any Guarantee, any
Guarantee shall cease, for any reason, to be in full force and effect with respect to any
Guarantor or any Credit Party shall so assert; or
(n) a Change in Control shall occur;
then, and in every such event (other than an event with respect to the Borrower described in
paragraph (h) or (i) of this Article), and at any time thereafter during the continuance of such
53
event, the Administrative Agent may, and at the request of the Required Lenders shall, by notice to
the Borrower, take either or both of the following actions at the same or different times: (i)
terminate the Commitments, and thereupon the Commitments shall terminate immediately, and (ii)
declare the Loans then outstanding to be due and payable in whole (or in part, in which case any
principal not so declared to be due and payable may thereafter be declared to be due and payable),
and thereupon the principal of the Loans so declared to be due and payable, together with accrued
interest thereon and all fees and other obligations of the Borrower accrued hereunder, shall become
due and payable immediately, without presentment, demand, protest or other notice of any kind, all
of which are hereby waived by the Borrower; and in case of any event with respect to the Borrower
described in paragraph (h) or (i) of this Article, the Commitments shall automatically terminate
and the principal of the Loans then outstanding, together with accrued interest thereon and all
fees and other obligations of the Borrower accrued hereunder, shall automatically become due and
payable, without presentment, demand, protest or other notice of any kind, all of which are hereby
waived by the Borrower; provided that, subject to Section 4.03, an Event of Default as
described above shall exist hereunder only if such event or condition shall occur, or shall have
occurred and be continuing, on the Borrowing Date or at any time thereafter.
ARTICLE VIII
THE ADMINISTRATIVE AGENT
Each of the Lenders hereby irrevocably appoints the Administrative Agent as its agent and
authorizes the Administrative Agent to take such actions on its behalf and to exercise such powers
as are delegated to the Administrative Agent by the terms hereof, together with such actions and
powers as are reasonably incidental thereto.
Time Warner or any of its Affiliates, or any bank, serving as Administrative Agent hereunder
shall have the same rights and powers in its capacity as a Lender as any other Lender and may
exercise the same as though it were not the Administrative Agent, and such Lender and its
Affiliates may accept deposits from, lend money to, act as the financial advisor or in any other
advisory capacity for and generally engage in any kind of business with any Company or Affiliate
thereof as if it were not the Administrative Agent hereunder and without any duty to account
therefor to the Lenders.
The Administrative Agent shall not have any duties or obligations except those expressly set
forth herein and in the other Credit Documents. Without limiting the generality of the foregoing,
(a) the Administrative Agent shall not be subject to any fiduciary or other implied duties,
regardless of whether a Default has occurred and is continuing, (b) the Administrative Agent shall
not have any duty to take any discretionary action or exercise any discretionary powers, except
discretionary rights and powers expressly contemplated hereby or by the other Credit Documents that
the Administrative Agent is required to exercise in writing by the Required Lenders (or, if so
specified by this Agreement, all the Lenders) and (c) except as expressly set forth herein and in
the other Credit Documents, the Administrative Agent shall not have any duty to disclose, and shall
not be liable for the failure to disclose, any information relating to any Company or any of its
Affiliates that is communicated to or obtained by the
54
Lender serving as Administrative Agent or any of its Affiliates in any capacity (including in
the case of Time Warner or its Affiliates information obtained by virtue of its ownership of the
equity interests of the Borrower prior to the Separation or any other business dealings). The
Administrative Agent shall not be liable for any action taken or not taken by it with the consent
or at the request of the Required Lenders (or, if so specified by this Agreement, all the Lenders,
or as the Administrative Agent shall believe in good faith shall be necessary, under the
circumstances as provided in Article VII and Section 9.02) or in the absence of its own gross
negligence or willful misconduct. The Administrative Agent shall be deemed not to have knowledge
of any Default unless and until written notice thereof is given to the Administrative Agent by the
Borrower or a Lender, and the Administrative Agent shall not be responsible for or have any duty to
ascertain or inquire into (i) any statement, warranty or representation made in or in connection
with this Agreement or any other Credit Document, (ii) the contents of any certificate, report or
other document delivered under any Credit Document or in connection therewith, (iii) the
performance or observance of any of the covenants, agreements or other terms or conditions set
forth in the Credit Documents or the occurrence of any Default, (iv) the validity, enforceability,
effectiveness or genuineness of any Credit Document or any other agreement, instrument or document,
or (v) the satisfaction of any condition set forth in Article IV or elsewhere herein, other than to
confirm receipt of items expressly required to be delivered to the Administrative Agent.
The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for
relying upon, any notice, request, certificate, consent, statement, instrument, document or other
writing (including any electronic message) believed by it to be genuine and to have been signed,
sent or otherwise authenticated by a proper Person. An initial list of the proper Persons with
respect to the Borrower appears on Schedule 8. Schedule 8 shall not be altered except in writing
by a Person appearing thereon (or by a successor to such Person occupying the equivalent office).
The Administrative Agent also may rely upon any statement made to it orally or by telephone and
believed by it to be made by the proper Person, and shall not incur any liability for relying
thereon so long as such statement, in the case of a Borrowing Request, complies with the
requirements of Section 2.03 in all material respects (it being understood that oral notices of
borrowing will be confirmed in writing by the Borrower in accordance with Section 2.03). In
determining compliance with any condition hereunder to the making of a Loan that by its terms must
be fulfilled to the satisfaction of a Lender, the Administrative Agent may presume that such
condition is satisfactory to such Lender unless the Administrative Agent shall have received notice
to the contrary from such Lender prior to the making of such Loan. The Administrative Agent may
consult with legal counsel (who may be counsel for the Borrower), independent accountants and other
experts selected by it, and shall not be liable for any action taken or not taken by it in
accordance with the advice of any such counsel, accountants or experts.
The Administrative Agent may perform any and all its duties and exercise its rights and powers
hereunder or under any other Credit Document by or through any one or more sub-agents appointed by
the Administrative Agent. The Administrative Agent and any such sub-agent may perform any and all
its duties and exercise its rights and powers through their respective Related Parties. The
exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the
Related Parties of the Administrative Agent and any such sub-
55
agent, and shall apply to their respective activities in connection with the syndication of
the credit facilities provided for herein as well as activities as Administrative Agent.
Subject to the appointment and acceptance of a successor Administrative Agent as provided in
this paragraph, the Administrative Agent may resign at any time by notifying the Lenders and the
Borrower. Upon any such resignation, (i) at any time prior to the Time Warner Assignment Date,
Time Warner shall have the right to appoint a successor with, so long as no Event of Default is
continuing, the prior written consent of the Borrower, which consent shall not be unreasonably
withheld and (ii) at any time thereafter, the Required Lenders shall have the right, in
consultation with the Borrower, to appoint a successor which, so long as no Event of Default is
continuing, shall be reasonably acceptable to the Borrower. If no successor shall have been so
appointed by the Required Lenders and shall have accepted such appointment within 30 days after the
retiring Administrative Agent gives notice of its resignation, then the retiring Administrative
Agent may, on behalf of the Lenders, appoint a successor Administrative Agent which shall be a bank
with an office in New York, New York, or an Affiliate of any such bank. Upon the acceptance of its
appointment as Administrative Agent hereunder by a successor, such successor shall succeed to and
become vested with all the rights, powers, privileges and duties of the retiring (or retired)
Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and
obligations hereunder or under the other Credit Documents. The fees payable by the Borrower to a
successor Administrative Agent shall be the same as those payable to its predecessor unless
otherwise agreed between the Borrower and such successor; provided that the predecessor
Administrative Agent shall pay the unearned portion of any fees paid in advance to either the
successor Administrative Agent or the Borrower. After the Administrative Agent’s resignation
hereunder, the provisions of this Article and Section 9.03 shall continue in effect for the benefit
of such retiring Administrative Agent, its sub-agents and their respective Related Parties in
respect of any actions taken or omitted to be taken by it while it was acting as Administrative
Agent.
The Lenders agree to indemnify the Administrative Agent in its capacity as such (to the extent
not reimbursed by the Borrower and without limiting the obligation of the Borrower to do so),
ratably according to its Applicable Percentage on the date on which indemnification is sought under
this Article VIII (or, if indemnification is sought after the date upon which the Loans shall have
been paid in full, ratably in accordance with their Applicable Percentage immediately prior to such
date), from and against any and all liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements of any kind whatsoever that may at any time
(whether before or after the payment of the Loans) be imposed on, incurred by or asserted against
the Administrative Agent in any way relating to or arising out of, the Commitments, this Agreement,
any of the other Credit Documents or any documents contemplated by or referred to herein or therein
or the transactions contemplated hereby or thereby or any action taken or omitted by the
Administrative Agent under or in connection with any of the foregoing; provided that no
Lender shall be liable for the payment of any portion of such liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements that are found by a
final and nonappealable decision of a court of competent jurisdiction to have resulted from the
Administrative Agent’s gross negligence or willful misconduct. The agreements in this paragraph
shall survive the payment of the Loans and all other amounts payable hereunder.
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Each Lender acknowledges that it has, independently and without reliance upon the
Administrative Agent or any other Lender and based on such documents and information as it has
deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each
Lender also acknowledges that it will, independently and without reliance upon the Administrative
Agent or any other Lender and based on such documents and information as it shall from time to time
deem appropriate, continue to make its own decisions in taking or not taking action under or based
upon this Agreement, any related agreement or any document furnished hereunder or thereunder.
ARTICLE IX
MISCELLANEOUS
SECTION 9.01. Notices. (a) Except in the case of notices and other communications
expressly permitted to be given by telephone, all notices and other communications provided for
herein shall be in writing and shall be delivered by hand or overnight courier service, mailed by
certified or registered mail or sent by facsimile, as follows:
(i) if to the Borrower, to it at One Time Xxxxxx Xxxxxx, Xxxxx Xxxxx, Xxx Xxxx, XX
00000, Attention of Chief Financial Officer (Facsimile No. 704-973-6380), with copies to its
General Counsel (Facsimile No. 000-000-0000) and its Treasurer (Facsimile No. 212-364-8234);
(ii) if to Time Warner, to it at One Time Xxxxxx Xxxxxx, Xxx Xxxx, XX 00000, Attention
of Chief Financial Officer (Facsimile No. 212-484-7195), with copies to its General Counsel
(Facsimile No. 212-484-7167) and its Treasurer (Facsimile No. 000- 000-0000).
(iii) if to any other Person serving as the Administrative Agent, to it at the address
designated by it in writing to the Borrower, with a copy of such notice or other
communication to Time Warner at the address set out in clause (ii) above if Time Warner is
then a Lender; and
(iv) if to any other Lender, to it at its address (or facsimile number) set forth on
Schedule 2.01, or in its Administrative Questionnaire.
Any party hereto may change its address or facsimile number for notices and other communications
hereunder by notice to the other parties hereto. All notices and other communications given to any
party hereto in accordance with the provisions of this Agreement shall be deemed to have been given
on the date of receipt.
(b) THE PLATFORM IS PROVIDED “AS IS” AND “AS AVAILABLE.” THE AGENT PARTIES (AS DEFINED BELOW)
DO NOT WARRANT THE ACCURACY OR COMPLETENESS OF THE BORROWER MATERIALS OR THE ADEQUACY OF THE
PLATFORM, AND EXPRESSLY DISCLAIM LIABILITY FOR ERRORS IN OR OMISSIONS FROM THE BORROWER MATERIALS.
NO WARRANTY OF ANY KIND,
57
EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A
PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS OR FREEDOM FROM VIRUSES OR OTHER CODE
DEFECTS, IS MADE BY ANY AGENT PARTY IN CONNECTION WITH THE BORROWER MATERIALS OR THE PLATFORM. In
no event shall the Administrative Agent or any of its Related Parties (collectively, the “Agent
Parties”) have any liability to the Borrower, any Lender or any other Person for losses,
claims, damages, liabilities or expenses of any kind (whether in tort, contract or otherwise)
arising out of the Borrower’s or the Administrative Agent’s transmission of Borrower Materials
through the Platform, except to the extent that such losses, claims, damages, liabilities or
expenses are determined by a court of competent jurisdiction by a final and nonappealable judgment
to have resulted from the gross negligence or willful misconduct of such Agent Party;
provided, however, that (i) nothing in this paragraph (b) shall modify the Agent Parties’
respective obligations pursuant to Section 9.12, and (ii) in no event shall any Agent Party have
any liability to any Lender for indirect, special, incidental, consequential or punitive damages
(as opposed to direct or actual damages).
SECTION 9.02. Waivers; Amendments. (a) No failure or delay by the Administrative
Agent or any Lender in exercising any right or power hereunder shall operate as a waiver thereof,
nor shall any single or partial exercise of any such right or power, or any abandonment or
discontinuance of steps to enforce such a right or power, preclude any other or further exercise
thereof or the exercise of any other right or power. The rights and remedies of the Administrative
Agent and the Lenders hereunder are cumulative and are not exclusive of any rights or remedies that
they would otherwise have. No waiver of any provision of this Agreement or consent to any
departure by the Borrower therefrom shall in any event be effective unless the same shall be
permitted by paragraph (b) of this Section, and then such waiver or consent shall be effective only
in the specific instance and for the purpose for which given. Without limiting the generality of
the foregoing, the making of a Loan shall not be construed as a waiver of any Default, regardless
of whether the Administrative Agent or any Lender may have had notice or knowledge of such Default
at the time.
(b) Neither this Agreement nor any provision hereof may be waived, amended or modified except
pursuant to an agreement or agreements in writing entered into by the Borrower and the Required
Lenders or by the Borrower and the Administrative Agent with the consent of the Required Lenders;
provided that no such agreement shall (i) increase the Commitment of any Lender without the
written consent of such Lender, (ii) reduce the principal amount of any Loan or reduce the rate of
interest thereon, or reduce any fees payable hereunder, without the written consent of each Lender
affected thereby, (iii) postpone the scheduled date of payment of the principal amount of any Loan,
or any interest thereon, or any fees payable hereunder, or reduce the amount of, waive or excuse
any such payment, or postpone the scheduled date of expiration of any Commitment, without the
written consent of each Lender affected thereby, (iv) amend, waive, modify or otherwise change
Section 2.17(b) or (c) in a manner that would alter the pro rata sharing of payments required
thereby, without the written consent of each Lender, (v) release any Guarantor from its obligations
under the Guarantee without the written consent of each Lender; provided that if any of the
events specified in Section 9.14 occur with respect to a Guarantor then the Guarantee shall be
automatically released with respect to such Guarantor without any further action or (vi) change any
of the provisions of this Section or the definition of “Required Lenders” or any other provision
hereof specifying the
58
number or percentage of Lenders required to waive, amend or modify any rights hereunder or
make any determination or grant any consent hereunder, without the written consent of each Lender;
provided further that no such agreement shall amend, modify or otherwise affect the rights
or duties of the Administrative Agent without the prior written consent of the Administrative
Agent. It is understood and agreed that the Borrower (i) shall cause any Affiliate of the Borrower
that is required at any time and from time to time to become a Guarantor pursuant to Section 5.10,
and (ii) shall be permitted to cause any additional Affiliates to, directly or indirectly,
guarantee Obligations of the Borrower, in each case without the consent of any Lender or the
Administrative Agent.
SECTION 9.03. Expenses; Indemnity; Damage Waiver. (a) The Borrower shall pay (i) all
reasonable out-of-pocket expenses incurred by the Administrative Agent (including Time Warner in
such capacity) and its Affiliates, including the reasonable fees, charges and disbursements of
counsel for the Administrative Agent in connection with the syndication of the credit facilities
provided for herein, the preparation and administration of the Credit Documents or any amendments,
modifications or waivers of the provisions thereof (whether or not the transactions contemplated
hereby or thereby shall be consummated); provided that Time Warner (in its capacity as
Administrative Agent) shall not be reimbursed for out-of-pocket expenses relating to the
syndication of the credit facility provided for herein, the preparation, execution, delivery and
administration of the Credit Documents or any amendments, modifications or waivers of the
provisions thereof incurred prior to the date of the consummation of the Separation and (ii) all
out-of-pocket expenses incurred by the Administrative Agent or the Lenders, including the
reasonable fees, charges and disbursements of any counsel for the Administrative Agent or the
Lenders in connection with the enforcement or protection of its rights in connection with any
Credit Document, including its rights under this Section, or in connection with the Loans made
hereunder, including in connection with any workout, restructuring or negotiations in respect
thereof, it being understood, in each case, that the Administrative Agent and the Lenders shall
use, and the Borrower shall only be required to pay such fees, charges and disbursements of, a
single counsel, unless (and to the extent) conflicts of interests require the use of more than one
counsel.
(b) The Borrower shall indemnify the Administrative Agent and each Lender, and each Related
Party of any of the foregoing Persons (each such Person being called an “Indemnitee”)
against, and hold each Indemnitee harmless from, any and all losses, claims, damages, liabilities
and related expenses, including the reasonable fees, charges and disbursements of any counsel for
any Indemnitee, incurred by or asserted against any Indemnitee arising out of, in connection with,
or as a result of (i) the execution or delivery of any Credit Documents or any agreement or
instrument contemplated thereby, the performance by the parties hereto of their respective
obligations hereunder or the consummation of the Transactions or any other transactions
contemplated hereby, (ii) any Loan or the use of, or the proposed use of, the proceeds therefrom,
(iii) any actual or alleged presence or release of Hazardous Materials on or from any property
owned or operated by any Company, or any Environmental Liability related in any way to any Company,
or (iv) any actual or prospective claim, litigation, investigation or proceeding relating to any of
the foregoing, whether based on contract, tort or any other theory and regardless of whether any
Indemnitee is a party thereto; provided that such indemnity shall not, as to any
Indemnitee, be available to the extent that such losses, claims, damages, liabilities
59
or related expenses resulted from the gross negligence or willful misconduct of such
Indemnitee (or a Related Party of such Indemnitee); provided further that Time
Warner and each Related Party of Time Warner (each such Person being called a “TW Indemnified
Party”) will not be entitled to indemnification hereunder (x) with respect to any such loss,
claim, damage, liability or related expense incurred prior to the date of the Separation or to the
extent directly relating to or arising out of the Separation, whether incurred prior to or after
the date hereof or (y) with respect to any such loss, claim, damage, liability or related expense
which is of a type that an unaffiliated lender engaged in the business of making loans would not
customarily be indemnified for, it being understood that the foregoing proviso shall not limit any
rights of the TW Indemnified Parties pursuant to the Separation Agreement or any other contract or
agreement.
(c) To the extent that the Borrower fails to pay any amount required to be paid by it to the
Administrative Agent under paragraph (a) or (b) of this Section, each Lender severally agrees to
pay to the Administrative Agent such Lender’s Applicable Percentage (determined as of the time that
the applicable unreimbursed expense or indemnity payment is sought) of such unpaid amount;
provided that the unreimbursed expense or indemnified loss, claim, damage, liability or
related expense, as the case may be, was incurred by or asserted against the Administrative Agent
in its capacity as such.
(d) To the extent permitted by applicable law, the Borrower shall not assert, and the Borrower
hereby waives, any claim against any Indemnitee, on any theory of liability, for special, indirect,
consequential or punitive damages (as opposed to direct or actual damages) arising out of, in
connection with, or as a result of, this Agreement or any agreement or instrument contemplated
hereby, the Transactions, any Loan or the use of the proceeds thereof.
(e) All amounts due under this Section shall be payable promptly after written demand
therefor.
SECTION 9.04. Successors and Assigns. (a) The provisions of this Agreement shall be
binding upon and inure to the benefit of the parties hereto and their respective successors and
assigns permitted hereby, except that the Borrower may not assign or otherwise transfer any of its
rights or obligations hereunder without the prior written consent of each Lender except in
accordance with Section 6.04 (and any attempted assignment or transfer by the Borrower without such
consent shall be null and void). Nothing in this Agreement, expressed or implied, shall be
construed to confer upon any Person (other than the parties hereto, their respective successors and
assigns permitted hereby and, to the extent expressly contemplated hereby, the Related Parties of
each of the Administrative Agent and the Lenders) any legal or equitable right, remedy or claim
under or by reason of this Agreement.
(b) Any Lender other than a Conduit Lender may assign to one or more Eligible Assignees all or
a portion of its rights and obligations under this Agreement (including all or a portion of its
Commitment and the Loans at the time owing to it); provided that (i) except in the case of
an assignment to a Lender or a Lender Affiliate, each of the Borrower and the Administrative Agent
must give its prior written consent to such assignment (which consent shall not be unreasonably
withheld or delayed, it being understood that the Borrower may withhold or delay such consent if
the proposed Eligible Assignee is not sufficiently creditworthy), (ii) except
60
in the case of an assignment to a Lender or an Affiliate of a Lender or an assignment of the
entire remaining balance of the assigning Lender’s Commitment or Loans, each assignment shall not
be less than an aggregate principal amount of $10,000,000, (iii) except in the case of an
assignment to a Lender or an Affiliate of a Lender or an assignment of the entire remaining balance
of the assigning Lender’s Commitment or Loans, the remaining amount of the Commitment of, or Loans
held by, the assigning Lender after giving effect to such assignment shall not be less than
$15,000,000 unless, in the case of clauses (ii) or (iii), each of the Borrower and the
Administrative Agent otherwise consents, (iv) each partial assignment shall be made as an
assignment of a proportionate part of all the assigning Lender’s rights and obligations under this
Agreement, (v) except in the case of an assignment to an Affiliate of the assigning Lender on or
about the Effective Date, the parties to each assignment shall execute and deliver to the
Administrative Agent an Assignment and Acceptance, together with a processing and recordation fee
of $2,500, and (vi) the assignee, if it shall not be a Lender, shall deliver to the Administrative
Agent an Administrative Questionnaire; provided further that any consent of the Borrower
otherwise required under this paragraph shall not be required if an Event of Default under
paragraph (h) or (i) of Article VII has occurred and is continuing. Upon acceptance and recording
pursuant to paragraph (d) of this Section, from and after the effective date specified in each
Assignment and Acceptance, the assignee thereunder shall be a party hereto and, to the extent of
the interest assigned by such Assignment and Acceptance, have the rights and obligations of a
Lender under this Agreement, and the assigning Lender thereunder shall, to the extent of the
interest assigned by such Assignment and Acceptance, subject to paragraph (j) below, be released
from its obligations under this Agreement (and, in the case of an Assignment and Acceptance
covering all of the assigning Lender’s rights and obligations under this Agreement, such Lender
shall cease to be a party hereto but shall (i) continue to be entitled to the benefits of Sections
2.14, 2.15, 2.16 and 9.03 and (ii) continue to be subject to the confidentiality provisions
hereof). Any assignment or transfer by a Lender of rights or obligations under this Agreement that
does not comply with this paragraph shall be treated for purposes of this Agreement as a sale by
such Lender of a participation in such rights and obligations in accordance with paragraph (e) of
this Section. Notwithstanding the foregoing, any Conduit Lender may assign at any time to its
designating Lender hereunder without the consent of the Borrower or the Administrative Agent any or
all of the Loans it may have funded hereunder and pursuant to its designation agreement and without
regard to the limitations set forth in the first sentence of this Section.
(c) The Administrative Agent, acting for this purpose as an agent of the Borrower, shall
maintain at one of its offices in The City of New York a copy of each Assignment and Acceptance
delivered to it and a register for the recordation of the names and addresses of the Lenders, and
the Commitment of, and principal amount of the Loans owing to, each Lender pursuant to the terms
hereof from time to time (the “Register”). The entries in the Register shall be
conclusive, and the Borrower, the Administrative Agent and the Lenders may treat each Person whose
name is recorded in the Register pursuant to the terms hereof as a Lender hereunder for all
purposes of this Agreement, notwithstanding notice to the contrary.
(d) Upon its receipt of a duly completed Assignment and Acceptance executed by an assigning
Lender and an assignee, the assignee’s completed Administrative Questionnaire (unless the assignee
shall already be a Lender hereunder), the processing and recordation fee referred to in paragraph
(b) of this Section and any written consent to such
61
assignment required by paragraph (b) of this Section, the Administrative Agent shall accept
such Assignment and Acceptance and record the information contained therein in the Register. No
assignment shall be effective for purposes of this Agreement unless it has been recorded in the
Register as provided in this paragraph.
(e) Any Lender other than a Conduit Lender may, without the consent of the Borrower or the
Administrative Agent, sell participations to one or more banks or other entities (a
“Participant”) in all or a portion of such Lender’s rights and obligations under this
Agreement (including all or a portion of its Commitment and the Loans owing to it);
provided that (i) such Lender’s obligations under this Agreement shall remain unchanged,
(ii) such Lender shall remain solely responsible to the other parties hereto for the performance of
such obligations and (iii) 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. Any agreement or instrument pursuant to which a Lender sells
such a participation shall provide that such Lender shall retain the sole right to enforce this
Agreement and to approve any amendment, modification or waiver of any provision of this Agreement;
provided that such agreement or instrument may provide that such Lender will not, without
the consent of the Participant, agree to any amendment, modification or waiver described in the
first proviso to Section 9.02(b) that affects such Participant. Subject to paragraph (f) of this
Section, the Borrower agrees that each Participant shall be entitled to the benefits of Sections
2.14, 2.15 and 2.16 to the same extent as if it were a Lender and had acquired its interest by
assignment pursuant to paragraph (b) of this Section.
(f) A Participant shall not be entitled to receive any greater payment under Section 2.14 or
2.16 than the applicable Lender would have been entitled to receive with respect to the
participation sold to such Participant, unless the sale of the participation to such Participant is
made with the Borrower’s prior written consent. A Participant that would be a Foreign Lender if it
were a Lender shall not be entitled to the benefits of Section 2.16 unless the Borrower is notified
of the participation sold to such Participant and such Participant agrees, for the benefit of the
Borrower, to comply with Section 2.16(e) as though it were a Lender.
(g) Any Lender may at any time pledge or assign a security interest in all or any portion of
its rights under this Agreement to secure obligations of such Lender, including any such pledge or
assignment to a Federal Reserve Bank, and this Section shall not apply to any such pledge or
assignment of a security interest; provided that no such pledge or assignment of a security
interest shall release a Lender from any of its obligations hereunder or substitute any such
assignee for such Lender as a party hereto.
(h) The Borrower, upon receipt of written notice from the relevant Lender, agrees to issue
Notes to any Lender requiring Notes to facilitate transactions of the type described in paragraph
(g) above.
(i) The Borrower, each Lender and the Administrative Agent hereby confirms that it will not
institute against a Conduit Lender or join any other Person in instituting against a Conduit Lender
any bankruptcy, reorganization, arrangement, insolvency or liquidation proceeding under any state
bankruptcy or similar law, for one year and one day after the payment in full of the latest
maturing commercial paper note issued by such Conduit Lender; provided,
62
however, that each Lender designating any Conduit Lender hereby agrees to indemnify, save and
hold harmless each other party hereto for any loss, cost, damage or expense arising out of its
inability to institute such a proceeding against such Conduit Lender during such period of
forbearance.
(j) Notwithstanding the foregoing, no assignment by Time Warner of its Commitments hereunder
prior to the Borrowing Date shall relieve Time Warner of its obligation to make the Loans in full
on the Borrowing Date in the event that any assignee of Time Warner shall fail to make the Loans to
be made by it on the Borrowing Date, provided that Time Warner’s obligations hereunder and
the making of Loans by Time Warner shall not relieve such assignee of its liability to Time Warner
for such failure.
SECTION 9.05. Survival. All covenants, agreements, representations and warranties
made by the Credit Parties herein and in the certificates or other instruments delivered in
connection with or pursuant to this Agreement shall be considered to have been relied upon by the
other parties hereto and shall survive the execution and delivery of this Agreement and the making
of any Loans, regardless of any investigation made by any such other party or on its behalf and
notwithstanding that the Administrative Agent or any Lender may have had notice or knowledge of any
Default or incorrect representation or warranty at the time any credit is extended hereunder, and
shall continue in full force and effect as long as the principal of or any accrued interest on any
Loan or any fee or any other amount payable under this Agreement is outstanding and unpaid and so
long as the Commitments have not expired or terminated. The provisions of Sections 2.14, 2.15,
2.16 and 9.03 and Article VIII shall survive and remain in full force and effect regardless of the
consummation of the transactions contemplated hereby, the repayment of the Loans, the expiration or
termination of the Commitments or the termination of this Agreement or any provision hereof.
SECTION 9.06. Counterparts; Integration; Effectiveness. This Agreement may be
executed in counterparts (and by different parties hereto on different counterparts), each of which
shall constitute an original, but all of which when taken together shall constitute a single
contract. This Agreement and any separate letter agreements with respect to fees payable to the
Lenders constitute the entire contract among the parties relating to the subject matter hereof and
supersede any and all previous agreements and understandings, oral or written, relating to the
subject matter hereof. Except as provided in Section 4.01, this Agreement shall become effective
when it shall have been executed by the Administrative Agent and when the Administrative Agent
shall have received counterparts hereof which, when taken together, bear the signatures of each of
the other parties hereto, and thereafter shall be binding upon and inure to the benefit of the
parties hereto and their respective successors and assigns. Delivery of an executed counterpart of
a signature page of this Agreement by facsimile shall be effective as delivery of a manually
executed counterpart of this Agreement.
SECTION 9.07. Severability. Any provision of this Agreement held to be
invalid, illegal or unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such invalidity, illegality or unenforceability without affecting the
validity, legality and enforceability of the remaining provisions hereof; and the invalidity of a
particular provision in a particular jurisdiction shall not invalidate such provision in any other
jurisdiction.
63
SECTION 9.08. Right of Setoff. If an Event of Default shall have occurred and be
continuing, each Lender is hereby authorized at any time and from time to time, to the fullest
extent permitted by law, to set off and apply any and all deposits (general or special, time or
demand, provisional or final) at any time held by such Lender or any Affiliate of such Lender
(acting in its capacity as a Lender) that is primarily engaged in commercial banking activities and
other indebtedness at any time owing by such Lender to or for the credit or the account of the
Borrower (other than indebtedness related to commercial advertising and marketing arrangements
entered into in the ordinary course of business) against any of and all the obligations of the
Borrower now or hereafter existing under this Agreement held by such Lender, irrespective of
whether or not such Lender shall have made any demand under this Agreement and although such
obligations may be unmatured. The rights of each Lender under this Section are in addition to
other rights and remedies (including other rights of setoff) which such Lender may have.
SECTION 9.09. Governing Law; Jurisdiction; Consent to Service of Process. (a) This
Agreement shall be construed in accordance with and governed by the law of the State of New York.
(b) The Borrower hereby irrevocably and unconditionally submits, for itself and its property,
to the exclusive jurisdiction of the Supreme Court of the State of New York sitting in New York
County and of the United States District Court of the Southern District of New York, and any
appellate court from any thereof, in any action or proceeding arising out of or relating to the
Credit Documents, 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 shall be heard and determined in such New York State or, to the extent permitted by law,
in such Federal court. Each of the parties hereto agrees that a final judgment in any such action
or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the
judgment or in any other manner provided by law.
(c) The Borrower hereby irrevocably and unconditionally waives, to the fullest extent it may
legally and effectively do so, any objection which it may now or hereafter have to the laying of
venue of any suit, action or proceeding arising out of or relating to this Agreement in any court
referred to in paragraph (b) of this Section. 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.
(d) Each party to this Agreement irrevocably consents to service of process in the manner
provided for notices in Section 9.01. Nothing in this Agreement will affect the right of any party
to this Agreement to serve process in any other manner permitted by law.
SECTION 9.10. 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 ANY LEGAL
PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A)
CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS
64
REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF
LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES
HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS
AND CERTIFICATIONS IN THIS SECTION.
SECTION 9.11. Headings. Article and Section headings and the Table of Contents used
herein are for convenience of reference only, are not part of this Agreement and shall not affect
the construction of, or be taken into consideration in interpreting, this Agreement.
SECTION 9.12. Confidentiality. Each of the Administrative Agent and the Lenders
agrees to maintain the confidentiality of the Information (as defined below), except that
Information may be disclosed (a) to its and its Affiliates’ directors, officers, employees,
partners and agents, including accountants, legal counsel and other advisors (it being understood
that the Persons to whom such disclosure is made will be informed of the confidential nature of
such Information and instructed to keep such Information confidential), (b) to the extent requested
by any regulatory authority (including any self-regulatory authority), (c) to the extent required
by applicable laws or regulations or by any subpoena or similar legal
process, provided that in
connection with any such requirement by a subpoena or similar legal process, the Borrower is given
prior notice to the extent such prior notice is permissible under the circumstances and an
opportunity to object to such disclosure, (d) to any other party to this Agreement, (e) in
connection with the exercise of any remedies hereunder or any suit, action or proceeding relating
to this Agreement or the enforcement of rights hereunder, (f) subject to an express agreement for
the benefit of the Borrower containing provisions substantially the same, or at least as
restrictive, as those of this Section, to any (i) assignee (or Conduit Lender) of or Participant
in, or any prospective assignee (or Conduit Lender) of or Participant in, any of its rights or
obligations under this Agreement or (ii) hedging agreement counterparty (or such contractual
counterparty’s professional advisor), (g) with the consent of the Borrower or (h) to the extent
such Information (i) becomes publicly available other than as a result of a breach of this Section
or (ii) becomes available to the Administrative Agent or any Lender on a nonconfidential basis from
a source other than the Borrower. For the purposes of this Section,
“Information” means all
information received from the Borrower, whether oral or written, relating to the Borrower or its
business, other than any such information that is available to the Administrative Agent or any
Lender on a nonconfidential basis prior to disclosure by the
Borrower; provided that, in the case
of information received from the Borrower after the date hereof, such information is clearly
identified at the time of delivery as confidential. Any Person required to maintain the
confidentiality of Information as provided in this Section shall be considered to have complied
with its obligation to do so if such Person has exercised the same degree of care to maintain the
confidentiality of such Information as such Person would accord to its own confidential
information, including in accordance with Regulation FD as promulgated by the SEC.
SECTION 9.13. Acknowledgements. The Borrower hereby acknowledges that:
(a) it has been advised by counsel in the negotiation, execution and delivery of this
Agreement and the other Credit Documents;
65
(b) neither the Administrative Agent nor any Lender has any fiduciary relationship with or
fiduciary duty to the Borrower arising out of or in connection with this Agreement or any of the
other Credit Documents, and the relationship between Administrative Agent and Lenders, on one hand,
and the Borrower, on the other hand, in connection herewith or therewith is solely that of debtor
and creditor; and
(c) no joint venture is created hereby or by the other Credit Documents or otherwise exists by
virtue of the transactions contemplated hereby among the Lenders or among the Borrower and the
Lenders.
SECTION 9.14. Guarantee. Subject in any event to the continuing obligations of
Section 6.09, each Guarantor shall be automatically released from its obligations under the
Guarantee upon receipt by the Administrative Agent of a certificate of a Responsible Officer
certifying that such Guarantor has no outstanding Indebtedness for borrowed money, including any
Guarantee Obligations in respect of Indebtedness for borrowed money as of the date of such
certificate.
SECTION 9.15. USA PATRIOT Act. Each Lender (other than Time Warner) hereby notifies
the Borrower that pursuant to the requirements of the USA PATRIOT Act (Title III of Pub. L. 107-56
(signed into law October 26, 2001)) (the “Act”), it is required to obtain, verify and record
information that identifies the Borrower and each Guarantor, which information includes the name
and address of the Borrower and each Guarantor and other information that will allow such Lender to
identify the Borrower and each Guarantor in accordance with the Act.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed by their
respective authorized officers as of the day and year first above written.
TIME WARNER CABLE INC. |
||||
By: | /s/ Xxxxxx X. Xxxxxx | |||
Name: | Xxxxxx X. Xxxxxx | |||
Title: | Senior Executive Vice President
and Chief Financial Officer |
|||
Signature Page to Credit Agreement
TIME WARNER INC., as Lender and Administrative Agent |
||||
By: | /s/ Xxxxxx X. Xxxxxxxx | |||
Name: | Xxxxxx X. Xxxxxxxx | |||
Title: | Senior Vice President and Treasurer | |||
Signature Page to Credit Agreement
SCHEDULE 2.01
ADDRESS FOR NOTICES; COMMITMENTS
Lender Name and Address | Commitments | |||
Time Warner Inc.
|
$ | 1,535,000,000 | ||
One Time Xxxxxx Xxxxxx |
||||
Xxx Xxxx, XX 00000 |
||||
Attention: Chief Financial Officer |
||||
Facsimile: (000) 000-0000 |
||||
Copy to: |
||||
General Counsel |
||||
Facsimile: (000) 000-0000 |
||||
Treasurer |
||||
Facsimile: (000) 000-0000 |
||||
TOTAL
|
$ | 1,535,000,000 |
SCHEDULE 2.03(A)
A borrowing notice | ||||
(pursuant and subject | ||||
to Section 2.03) or | ||||
an interest election | Prepayment notice | |||
(pursuant to Section | (pursuant to Section | |||
2.07) must be given | 2.10) must be given | |||
Loan Type: | not later than: | not later than: | ||
LOANS |
||||
Any Eurodollar Borrowing |
10:30 am New York City time three (3) Business Days before the date of the proposed Borrowing. | 11:30 am New York City time three (3) Business Days before the date of prepayment. | ||
Any ABR Borrowing
|
10:00 am New York City time on the day of the proposed Borrowing. | 12:00 pm New York City time one (1) Business Day before the date of prepayment. |
SCHEDULE 6.08
UNRESTRICTED SUBSIDIARIES
Bright House Networks LLC
SCHEDULE 8
LIST OF PROPER PERSONS
Name | Title | |
Xxxxxx Xxxxxx
|
Senior Executive Vice President and Chief Financial Officer | |
Xxxxxx Xxxxxx
|
Executive Vice President of Finance and Deputy Chief Financial Officer | |
Xxxxxxx Xxxxxxx
|
Senior Vice President and Controller | |
Xxxxxxx Xxxxxx
|
Senior Vice President and Treasurer |
EXHIBIT A
FORM OF
ASSIGNMENT AND ACCEPTANCE
ASSIGNMENT AND ACCEPTANCE
Reference is made to the Credit Agreement (as amended, supplemented or otherwise modified from
time to time, the “Credit Agreement”) dated as of December 10, 2008, among TIME WARNER
CABLE INC., a Delaware corporation (the “Borrower”), TIME WARNER INC. and the other Lenders
party thereto, and Time Warner Inc. as Administrative Agent. 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 Assignor identified on Schedule l hereto (the “Assignor”) and the Assignee
identified on Schedule l hereto (the “Assignee”) agree as follows:
1. The Assignor hereby irrevocably sells and assigns to the Assignee without recourse to the
Assignor, and the Assignee hereby irrevocably purchases and assumes from the Assignor without
recourse to the Assignor, as of the Effective Date (as defined below), the interest described in
Schedule 1 hereto (the “Assigned Interest”) in and to the Assignor’s rights and obligations
under the Credit Agreement with respect to the principal amount of Loans set forth on Schedule 1
hereto for the Commitments or principal amount of Loans of the Assignor on the Effective Date of
this Assignment and Acceptance.
2. The Assignor (a) makes no representation or warranty and assumes no responsibility with
respect to any statements, warranties or representations made in or in connection with the Credit
Agreement or with respect to the execution, legality, validity, enforceability, genuineness,
sufficiency or value of the Credit Agreement, any other Credit Document or any other instrument or
document furnished pursuant thereto, other than that the Assignor has not created any adverse claim
upon the interest being assigned by it hereunder and that such interest is free and clear of any
such adverse claim and (b) makes no representation or warranty and assumes no responsibility with
respect to the financial condition of the Borrower, any of its Affiliates or any other obligor or
the performance or observance of the Borrower, any of its Affiliates or any other obligor of any of
their respective obligations under the Credit Agreement or any other Credit Documents or any other
instrument or document furnished pursuant thereto.
3. The Assignee (a) represents and warrants that it is legally authorized to enter into this
Assignment and Acceptance; (b) confirms that it has received a copy of the Credit Agreement,
together with copies of the financial statements delivered pursuant to Section 3.04 thereof and
such other documents and information as it has deemed appropriate to make its own credit analysis
and decision to enter into this Assignment and Acceptance; (c) agrees that it will, independently
and without reliance upon the Assignor, the Administrative Agent or any 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 and other Credit Documents or
any other instrument or document furnished pursuant thereto; (d) appoints and authorizes the
Administrative Agent to take such action as agent on its behalf
2
and to exercise such powers and discretion under the Credit Agreement and other Credit Documents or
any other instrument or document furnished pursuant thereto as are delegated to the Administrative
Agent by the terms thereof, together with such powers as are incidental thereto; and (e) agrees
that it will be bound by the provisions of the Credit Agreement and will perform in accordance with
its terms all the obligations which by the terms of the Credit Agreement are required to be
performed by it as a Lender.
4. The effective date of this Assignment and Acceptance shall be the Effective Date of
Assignment described in Schedule 1 hereto (the “Effective Date”). Following the execution
of this Assignment and Acceptance, it will be delivered to the Borrower and the Administrative
Agent. Except in the case of an assignment to a Lender or a Lender Affiliate, the Borrower and the
Administrative Agent must give its prior consent to such assignment pursuant to the Credit
Agreement, effective as of the Effective Date (which shall not, unless otherwise agreed to by the
Administrative Agent, be earlier than five Business Days after the date of such acceptance and
recording by the Administrative Agent). The Administrative Agent shall keep records of this
Assignment and Acceptance.
5. Upon such acceptance and recording, from and after the Effective Date, the Administrative
Agent shall make all payments in respect of the Assigned Interest (including payments of principal,
interest, fees and other amounts) to the Assignor for amounts which have accrued to the Effective
Date and to the Assignee for amounts which have accrued subsequent to the Effective Date.
6. From and after the Effective Date, (a) the Assignee shall be a party to the Credit
Agreement and, to the extent provided in this Assignment and Acceptance, have the rights and
obligations of a Lender thereunder and under the other Credit Documents and shall be bound by the
provisions thereof and (b) the Assignor shall, to the extent provided in this Assignment and
Acceptance, [subject to Section 7 below,]1relinquish its rights and be released from its
obligations under the Credit Agreement.
7. Notwithstanding anything herein to the contrary, no assignment by Time Warner of its
Commitments under the Credit Agreement to any Person prior to the Borrowing Date shall relieve Time
Warner of its obligation to make the Loans in full on the Borrowing Date in the event that such
Assignee shall fail to make the Loans to be made by it on the Borrowing Date. In the event that
any Assignee fails to make the Loans to be made by it on the Borrowing Date and such Loans are made
by Time Warner, such Assignee shall indemnify Time Warner against, and hold Time Warner harmless
from, any and all losses, claims, damages, liabilities and related expenses, including the
reasonable fees, charges and disbursements of any counsel of Time Warner, incurred by or asserted
against Time Warner arising out of, in connection with, or as a result of such Assignee’s failure
to make the Loans to be made by it on the Borrowing Date.2
1 | To be included in the case of an assignment made prior to the Borrowing Date. | |
2 | To be included in the case of an assignment made prior to the Borrowing Date. |
3
8. This Assignment and Acceptance shall be governed by and construed in accordance with the
laws of the State of New York.
IN WITNESS WHEREOF, the parties hereto have caused this Assignment and Acceptance to be executed as
of the date first above written by their respective duly authorized officers on Schedule 1
hereto.
Schedule 1
to Assignment and Acceptance with respect to the
Credit Agreement, dated as of December 10, 2008,
among TIME WARNER CABLE INC., a Delaware corporation (the “Borrower”), Time Warner Inc. and the
other Lenders party thereto, and Time Warner Inc., as Administrative Agent.
to Assignment and Acceptance with respect to the
Credit Agreement, dated as of December 10, 2008,
among TIME WARNER CABLE INC., a Delaware corporation (the “Borrower”), Time Warner Inc. and the
other Lenders party thereto, and Time Warner Inc., as Administrative Agent.
Name of Assignor:
Name of Assignee:
Effective Date of Assignment:
Amount of Commitments or Loans | ||||||||||||||
$ | ||||||||||||||
[Name of Assignee] | [Name of Assignor] | |||||||||||||
By:
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By: | |||||||||||||
Title: | Title: | |||||||||||||
Accepted for Recordation in the Register: | Required Consents (if any): | |||||||||||||
TIME WARNER INC., as Administrative Agent | [TIME WARNER CABLE INC.] | |||||||||||||
By:
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[By: | |||||||||||||
Title: | Title:] |
EXHIBIT B
FORM OF GUARANTEE
GUARANTEE, dated as of December 10, 2008, made by TW NY CABLE HOLDING INC., a Delaware
corporation (“TWNY”), and TIME WARNER ENTERTAINMENT COMPANY, L.P., a Delaware limited partnership
(“TWE”), and any other Person that may become a Guarantor pursuant to Section 25 hereof (each, a
“Guarantor”, and collectively, the “Guarantors”), in favor of Time Warner Inc.
(“Time Warner”), as administrative agent (in such capacity, the “Administrative
Agent”) for the lenders (the “Lenders”) parties to the Credit Agreement (as amended,
supplemented or otherwise modified from time to time, the “Credit Agreement”) dated as of
December 10, 2008, among TIME WARNER CABLE INC., a Delaware corporation (the “Borrower”),
Time Warner, the Lenders, and the Administrative Agent.
WITNESSETH:
WHEREAS, pursuant to the Credit Agreement, the Lenders have severally agreed to make Loans to
the Borrower upon the terms and subject to the conditions set forth therein;
WHEREAS, it is a condition precedent to the obligation of the Lenders to make their respective
Loans to the Borrower under the Credit Agreement that the Guarantors shall have executed and
delivered this Guarantee to the Administrative Agent for the ratable benefit of the Lenders; and
WHEREAS, each Guarantor is an affiliate of the Borrower under the Credit Agreement and it is
to the advantage of each Guarantor that the Lenders make the Loans to the Borrower under the Credit
Agreement.
NOW, THEREFORE, in consideration of the premises and to induce the Administrative Agent and
the Lenders to enter into the Credit Agreement and to induce the Lenders to make their respective
Loans to the Borrower under the Credit Agreement, each Guarantor hereby agrees with the
Administrative Agent, for the ratable benefit of the Lenders, as follows:
1. Defined Terms. (a) Unless otherwise defined herein, terms defined in the Credit
Agreement and used herein shall have the meanings given to them in the Credit Agreement.
(b) As used herein, “Obligations” means the collective reference to the unpaid principal of
and interest on the Loans and all other obligations and liabilities of the Borrower to the
Administrative Agent and the Lenders (including, without limitation, interest accruing at the then
applicable rate provided in the Credit Agreement after the maturity of the Loans and interest
accruing at the then applicable rate provided in the Credit Agreement 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), 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, the Credit Agreement or any other Credit Document, in each case whether on account
of principal, interest, reimbursement obligations, fees, indemnities, costs, expenses or otherwise
(including, without limitation, all fees and disbursements of counsel to the Administrative Agent
or to the Lenders that are required to be paid by the Borrower pursuant to the terms of the Credit
Agreement or any other Credit Document).
(c) The words “hereof,” “herein” and “hereunder” and words of similar import when used in this
Guarantee shall refer to this Guarantee as a whole and not to any particular provision of this
Guarantee, and section and paragraph references are to this Guarantee unless otherwise specified.
(d) The meanings given to terms defined herein shall be equally applicable to both the
singular and plural forms of such terms.
2. Guarantee. (a) Each Guarantor, jointly and severally, hereby unconditionally and
irrevocably guarantees to the Administrative Agent, for the ratable benefit of the Lenders and
their respective successors, endorsees, transferees and assigns, the prompt and complete payment
and performance by the Borrower as and when due (whether at the stated maturity, by acceleration or
otherwise) of the Obligations.
(b) This Guarantee shall remain in full force and effect until the Obligations are paid in
full.
(c) Each Guarantor agrees that whenever, at any time, or from time to time, it shall make any
payment to the Administrative Agent or any Lender on account of its liability hereunder, it will
notify the Administrative Agent and such Lender in writing that such payment is made under this
Guarantee for such purpose.
(d) Anything herein or in any other Credit Document to the contrary notwithstanding, the
maximum liability of each Guarantor hereunder and under the other Credit Documents shall in no
event exceed the amount which can be guaranteed by such Guarantor under applicable federal and
state laws relating to the insolvency of debtors.
(e) No payment or payments made by the Borrower, either of the Guarantors, any other guarantor
or any other Person or received or collected by the Administrative Agent or any Lender from the
Borrower, either of the Guarantors, any other guarantor or any other Person by virtue of any action
or proceeding or any setoff or appropriation or payment of the Obligations shall be deemed to
modify, reduce, release or otherwise affect the liability of any Guarantor hereunder who shall,
notwithstanding any such payment or payments (other than payments made by such Guarantor in respect
of the Obligations or payments received or collected from such Guarantor in respect of the
Obligations), remain liable for the Obligations, up to the maximum liability of such Guarantor
hereunder until the Obligations are paid in full.
3. Right of Setoff. Each Guarantor hereby authorizes each Lender at any time and from
time to time when any amounts owed by the Borrower under the Credit Agreement are due and payable
and have not been paid (taking into account any applicable grace
periods), to the fullest extent permitted by law, to set off and apply any and all deposits
(general or special, time or demand, provisional or final), at any time held by such Lender or any
Affiliate of such Lender (acting in its capacity as a Lender) that is primarily engaged in
commercial banking activities and other indebtedness at any time owing by such Lender to or for the
credit or the account of such Guarantor (other than indebtedness related to commercial advertising
and marketing arrangements entered into in the ordinary course of business) against any of and all
of the Obligations of the Borrower to such Lender hereunder now or hereafter existing under the
Credit Agreement or any other Credit Document whether or not such Lender has made any demand for
payment. Each Lender shall notify the applicable Guarantor promptly of any such setoff and the
application made by such Lender of the proceeds thereof; provided that the failure to give
such notice shall not affect the validity of such setoff and application. The rights of each
Lender under this paragraph are in addition to other rights and remedies (including other rights of
setoff) which such Lender may have.
4. No Subrogation. Notwithstanding any payment or payments made by any Guarantor
hereunder, or any setoff or application of funds of any Guarantor by any Lender, no Guarantor shall
be entitled to be subrogated to any of the rights of the Administrative Agent or any Lender against
the Borrower or against any collateral security or guarantee or right of offset held by the
Administrative Agent or any Lender for the payment of the Obligations, nor shall any Guarantor seek
or be entitled to seek any contribution or reimbursement from the Borrower in respect of payments
made by such Guarantor hereunder, until all amounts owing to the Administrative Agent and the
Lenders by the Borrower on account of the Obligations are paid in full. If any amount shall be
paid to any Guarantor on account of such subrogation rights at any time when all of the Obligations
shall not have been paid in full, such amount shall be held by such Guarantor in trust for the
Administrative Agent and the Lenders, segregated from other funds of such Guarantor, and shall,
forthwith upon receipt by such Guarantor, be turned over to the Administrative Agent in the exact
form received by such Guarantor (duly indorsed by such Guarantor to the Administrative Agent, if
required), to be applied against the Obligations, whether matured or unmatured, in such order as
the Administrative Agent may determine.
5. Amendments, etc. with Respect to the Obligations; Waiver of Rights. Each Guarantor
shall remain obligated hereunder notwithstanding that, without any reservation of rights against
any Guarantor, and without notice to or further assent by any Guarantor, (a) any demand for payment
of any of the Obligations made by the Administrative Agent or any Lender may be rescinded by the
Administrative Agent or such Lender, and any of the Obligations continued, (b) the Obligations, or
the liability of any other Person upon or for any part thereof, or any collateral security or
guarantee therefor or right of offset with respect thereto, may, from time to time, in whole or in
part, be renewed, extended, amended, modified, accelerated, compromised, waived, surrendered or
released by the Administrative Agent or any Lender, (c) the Credit Agreement and any other Credit
Document may be amended, modified, supplemented or terminated, in whole or in part, and (d) any
collateral security, guarantee or right of offset at any time held by the Administrative Agent or
any Lender for the payment of the Obligations may be sold, exchanged, waived, surrendered or
released. Neither the Administrative Agent nor any Lender shall have any obligation to protect,
secure, perfect or insure any Lien at any time held by it as security for the Obligations or for
this Guarantee or any property subject thereto.
6. Guarantee Absolute and Unconditional. Each Guarantor waives any and all notice of
the creation, renewal, extension or accrual of any of the Obligations and notice of or proof of
reliance by the Administrative Agent or any Lender upon this Guarantee or acceptance of this
Guarantee; the Obligations, and any of them, shall conclusively be deemed to have been created,
contracted or incurred, or renewed, extended, amended or waived, in reliance upon this Guarantee;
and all dealings between the Borrower or either one or both of the Guarantors, on the one hand, and
the Administrative Agent and the Lenders, on the other, shall likewise be conclusively presumed to
have been had or consummated in reliance upon this Guarantee. Each Guarantor waives diligence,
presentment, protest, demand for payment and notice of default or nonpayment to or upon the
Borrower or either one or both of the Guarantors with respect to the Obligations. This Guarantee
shall be construed as a continuing, absolute and unconditional guarantee of payment without regard
to (a) the validity, regularity or enforceability of the Credit Agreement or any other Credit
Document, any of the Obligations or any other collateral security therefor or guarantee or right of
offset with respect thereto at any time or from time to time held by the Administrative Agent or
any Lender, (b) any defense, setoff or counterclaim (other than a defense of payment or
performance) which may at any time be available to or be asserted by the Borrower or any other
Person against the Administrative Agent or any Lender, or (c) any other circumstance whatsoever
(with or without notice to or knowledge of the Borrower or the Guarantors) which constitutes, or
might be construed to constitute, an equitable or legal discharge of the Borrower from the
Obligations, or of either one or both of the Guarantors under this Guarantee, in bankruptcy or in
any other instance. When making a demand hereunder or otherwise pursuing its rights and remedies
hereunder against any Guarantor, the Administrative Agent and any Lender may, but shall be under no
obligation to, make a similar demand on or otherwise pursue such rights and remedies as it may have
against the Borrower or any other Person or against any collateral security or guarantee for the
Obligations or any right of offset with respect thereto, and any failure by the Administrative
Agent or any Lender to make any such demand, to pursue such other rights or remedies or to collect
any payments from the Borrower or any such other Person or to realize upon any such collateral
security or guarantee or to exercise any such right of offset, or any release of the Borrower or
any such other Person or of any such collateral security, guarantee or right of offset, shall not
relieve any Guarantor of any liability hereunder, and shall not impair or affect the rights and
remedies, whether express, implied or available as a matter of law, of the Administrative Agent or
any Lender against any Guarantor. For the purposes hereof “demand” shall include the commencement
and continuance of any legal proceedings.
7. Reinstatement. This Guarantee shall continue to be effective, or be reinstated, as
the case may be, if at any time payment, or any part thereof, of any of the Obligations is
rescinded or must otherwise be restored or returned by the Administrative Agent or any Lender upon
the insolvency, bankruptcy, dissolution, liquidation or reorganization of the Borrower or upon or
as a result of the appointment of a receiver, intervenor or conservator of, or trustee or similar
officer for, the Borrower or any substantial part of the Borrower’s property, or otherwise, all as
though such payments had not been made.
8. Payments. Each Guarantor hereby agrees that payments hereunder will be paid to the
Administrative Agent without setoff or counterclaim at the office of the
Administrative Agent located at One Time Xxxxxx Xxxxxx, Xxx Xxxx, XX 00000, or to such other
office as designated by the Administrative Agent.
9. Representations and Warranties. To induce the Administrative Agent and the Lenders
to enter into the Credit Agreement and to induce the Lenders to make their respective extensions of
credit to the Borrower thereunder, each Guarantor hereby represents and warrants to the
Administrative Agent and each Lender that the representations and warranties set forth in Article
III of the Credit Agreement (other than those set forth in Sections 3.04(c), 3.06, 3.09 and 3.10)
as they relate to such Guarantor or to the Credit Documents to which such Guarantor is a party,
each of which is hereby incorporated herein by reference, are true and correct in all material
respects, and the Administrative Agent and each Lender shall be entitled to rely on each of them as
if they were fully set forth herein (it being understood that any representation or warranty set
forth in Article III of the Credit Agreement that is qualified by a reference to the Borrower and
its Subsidiaries taken as a whole shall not be deemed to apply to the Guarantor individually).
The Guarantors agree that the foregoing representation and warranty shall be deemed to have
been made by each Guarantor and shall be true and correct in all material respects on the Borrowing
Date under the Credit Agreement on and as of such Borrowing Date as though made hereunder on and as
of such date.
10. Authority of Administrative Agent. Each Guarantor acknowledges that the rights
and responsibilities of the Administrative Agent under this Guarantee with respect to any action
taken by the Administrative Agent or the exercise or non-exercise by the Administrative Agent of
any option, right, request, judgment or other right or remedy provided for herein or resulting or
arising out of this Guarantee shall, as between the Administrative Agent and the Lenders, be
governed by the Credit Agreement and by such other agreements with respect thereto as may exist
from time to time among them, but, as between the Administrative Agent and any or all of the
Guarantors, the Administrative Agent shall be conclusively presumed to be acting as agent for the
Lenders with full and valid authority so to act or refrain from acting, and no Guarantor shall be
under any obligation, or entitlement, to make any inquiry respecting such authority.
11. Notices. All notices, requests and demands to or upon the Administrative Agent,
any Lender or any Guarantor shall be effected in the manner provided in Section 9.01 of the Credit
Agreement; any such notice, request or demand to or upon any Guarantor shall be addressed to such
Guarantor at its notice address set forth on Schedule 1 hereto.
12. Severability. Any provision of this Guarantee which is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining provisions hereof, and any
such prohibition or unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
13. Integration. This Guarantee and the other Credit Documents represent the
agreement of each Guarantor with respect to the subject matter hereof and there are no promises
or representations by the Guarantor, the Administrative Agent or any Lender relative to the
subject matter hereof not reflected herein or in the other Credit Documents.
14. Amendments in Writing. None of the terms or provisions of this Guarantee may be
waived, amended, supplemented or otherwise modified except by a written instrument executed by the
applicable Guarantor and the Administrative Agent, provided that any right, power or
privilege of the Administrative Agent or the Lenders arising under this Guarantee may be waived by
the Administrative Agent and the Lenders in a letter or agreement executed by the Administrative
Agent; provided, further, that no such amendment or waiver shall release either
Guarantor from its obligations hereunder without the written consent of each Lender.
15. No Waiver; Cumulative Remedies. Neither the Administrative Agent nor any Lender
shall by any act (except by a written instrument pursuant to paragraph 14 hereof), delay,
indulgence, omission or otherwise be deemed to have waived any right or remedy hereunder or to have
acquiesced in any Default or Event of Default or in any breach of any of the terms and conditions
hereof. No failure to exercise, nor any delay in exercising, on the part of the Administrative
Agent or any Lender, any right, power or privilege hereunder shall operate as a waiver thereof. No
single or partial exercise of any right, power or privilege hereunder shall preclude any other or
further exercise thereof or the exercise of any other right, power or privilege. A waiver by the
Administrative Agent or any Lender of any right or remedy hereunder on any one occasion shall not
be construed as a bar to any right or remedy which the Administrative Agent or such Lender would
otherwise have on any future occasion. The rights and remedies herein provided are cumulative, may
be exercised singly or concurrently and are not exclusive of any other rights or remedies provided
by law.
16. Section Headings. The section headings used in this Guarantee are for convenience
of reference only and are not to affect the construction hereof or be taken into consideration in
the interpretation hereof.
17. Successors and Assigns. This Guarantee shall be binding upon the successors and
assigns of each Guarantor and shall inure to the benefit of the Administrative Agent and the
Lenders and their successors and assigns; provided that no Guarantor may assign, transfer
or delegate any of its rights or obligations under this Guarantee without the prior written consent
of the Administrative Agent.
18. Enforcement Expenses. Each Guarantor agrees, jointly and severally, to pay or
reimburse each Lender and the Administrative Agent for all its costs and expenses incurred in
collecting against such Guarantor under this Guarantee or otherwise enforcing or protecting any
rights under this Guarantee and the other Credit Documents to which such Guarantor is a party,
including, without limitation, the fees and disbursements of counsel to each Lender and of counsel
to the Administrative Agent, it being understood, in each case, that the Lenders and the
Administrative Agent shall use, and the Borrower shall only be required to pay such fees, charges
and disbursements of, a single counsel, unless (and to the extent) conflicts of interests require
the use of more than one counsel.
19. Counterparts. This Guarantee may be executed by one or more of the Guarantors on
any number of separate counterparts (including by facsimile transmission), and all of said
counterparts taken together shall be deemed to constitute one and the same instrument.
20. Acknowledgements.
Each Guarantor hereby acknowledges that:
(a) it has been advised by counsel in the negotiation, execution and delivery of this
Guarantee;
(b) neither the Administrative Agent nor any Lender has any fiduciary relationship with or
fiduciary duty to such Guarantor arising out of or in connection with this Guarantee or any other
Credit Document, and the relationship between any or all of the Guarantors, on the one hand, and
the Administrative Agent and Lenders, on the other hand, in connection herewith or therewith is
solely that of debtor and creditor; and
(c) no joint venture is created hereby or by the other Credit Documents or otherwise exists by
virtue of the transactions contemplated hereby among the Lenders or among the Guarantors and the
Lenders.
21. GOVERNING LAW. THIS GUARANTEE SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED
IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
22. Jurisdiction; Consent to Service of Process. (a) Each Guarantor hereby
irrevocably and unconditionally submits, for itself and its property, to the exclusive jurisdiction
of the Supreme Court of the State of New York sitting in New York County and of the United States
District Court of the Southern District of New York, and any appellate court from any thereof, in
any action or proceeding arising out of or relating to this Guarantee, or for recognition or
enforcement of any judgment, and each Guarantor hereby irrevocably and unconditionally agrees that
all claims in respect of any such action or proceeding shall be heard and determined in such New
York State court or, to the extent permitted by law, in such Federal court. Each Guarantor 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.
(b) 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 Guarantee in any court
referred to in paragraph (a) of this Section. 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.
(c) Each Guarantor irrevocably consents to service of process in the manner provided for
notices in paragraph 11 of this Guarantee. Nothing in this Guarantee will affect the right of any
party to this Guarantee to serve process in any other manner permitted by law.
23. WAIVER OF JURY TRIAL. EACH GUARANTOR HEREBY IRREVOCABLY AND UNCONDITIONALLY
WAIVES TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS GUARANTEE OR ANY OTHER
CREDIT DOCUMENT AND FOR ANY COUNTERCLAIM THEREIN.
24. Release. This Guarantee may only be released in accordance with Section 9.02(b)
of the Credit Agreement; provided, however, that if any of the events specified in
Section 9.14 of the Credit Agreement occur with respect to a Guarantor then this Guarantee shall be
automatically released with respect to such Guarantor without any further action.
25. Additional Guarantors. Upon execution and delivery by any Subsidiary that is
required to become a party hereto pursuant to Section 5.10 of the Credit Agreement of an instrument
in the form of Exhibit I hereto (with such additions or modifications to such form as the
Administrative Agent may reasonably agree in the case of any such Subsidiary) (a “Supplement”),
such Subsidiary shall become a Guarantor hereunder with the same force and effect as if originally
named as a Guarantor herein. The execution and delivery of any such instrument shall not require
the consent of any other party to this Guarantee. The rights and obligations of each party to this
Guarantee shall remain in full force and effect notwithstanding the addition of any new party to
this Guarantee.
IN WITNESS WHEREOF, the undersigned has caused this Guarantee to be duly executed and
delivered by its duly authorized officer as of the day and year first above written.
TW NY CABLE HOLDING INC. |
||||
By: | ||||
Name: | Xxxxxx X. Xxxxxx | |||
Title: | Senior Vice President
and Chief Financial Officer |
|||
TIME WARNER ENTERTAINMENT COMPANY, L.P. |
||||
By: | ||||
Name: | Xxxxxx X. Xxxxxx | |||
Title: | Senior Vice President
and Chief Financial Officer |
|||
Signature Page to Form of Guarantee
Schedule 1
Address for Notices
TW NY CABLE HOLDING INC.
One Time Xxxxxx Xxxxxx
Xxxxx Xxxxx
Xxx Xxxx, XX 00000
Attention: Chief Financial Officer
Facsimile No. 000-000-0000
Attention: General Counsel
Facsimile No. 000-000-0000
Attention: Treasurer
Facsimile No. 000-000-0000
One Time Xxxxxx Xxxxxx
Xxxxx Xxxxx
Xxx Xxxx, XX 00000
Attention: Chief Financial Officer
Facsimile No. 000-000-0000
Attention: General Counsel
Facsimile No. 000-000-0000
Attention: Treasurer
Facsimile No. 000-000-0000
TIME WARNER ENTERTAINMENT COMPANY, L.P.
One Time Xxxxxx Xxxxxx
Xxxxx Xxxxx
Xxx Xxxx, XX 00000
Attention: Chief Financial Officer
Facsimile No. 000-000-0000
Attention: General Counsel
Facsimile No. 000-000-0000
Attention: Treasurer
Facsimile No. 000-000-0000
One Time Xxxxxx Xxxxxx
Xxxxx Xxxxx
Xxx Xxxx, XX 00000
Attention: Chief Financial Officer
Facsimile No. 000-000-0000
Attention: General Counsel
Facsimile No. 000-000-0000
Attention: Treasurer
Facsimile No. 000-000-0000
EXHIBIT I
TO EXHIBIT B
TO EXHIBIT B
SUPPLEMENT NO. [•] (this “Supplement”) dated as of [ ],
20[ ] to the Guarantee dated as of December 10, 2008 (the
“Guarantee”), made by TW NY Cable Holding Inc., and Time
Warner Entertainment Company, L.P., in favor of Time Warner Inc.,
as administrative agent (the “Administrative Agent”) for
the lenders (the “Lenders”) parties to the Credit
Agreement (as amended, supplemented or otherwise modified from
time to time, the “Credit Agreement”) dated as of December
10, 2008 among Time Warner Cable Inc., Time Warner Inc., the
Lenders and the Administrative Agent.
Reference is made to the Credit Agreement. Capitalized terms used herein and not otherwise
defined herein shall have the meanings assigned to such terms in the Credit Agreement or the
Guarantee, as applicable.
Section 25 of the Guarantee provides that additional Affiliates of the Borrower may become
Guarantors under the Guarantee by execution and delivery of an instrument in the form of this
Supplement. The undersigned Affiliate (the “Additional Guarantor”) is executing this
Supplement in accordance with the requirements of Section 5.10 of the Credit Agreement that it
become a Guarantor under the Guarantee.
Accordingly, the Administrative Agent and the Additional Guarantor agrees as follows:
SECTION 1. In accordance with Section 25 of the Guarantee, the Additional Guarantor by its
signature below becomes a Guarantor under the Guarantee with the same force and effect as if
originally named therein as a Guarantor and the Additional Guarantor hereby (a) agrees to guarantee
the Obligations and to all the terms and provisions of the Guarantee applicable to it as a
Guarantor thereunder and (b) represents and warrants that the representations and warranties made
by it as a Guarantor thereunder, other than those set forth in Sections 3.04(c), 3.06, 3.09 and
3.10 of the Credit Agreement, as they relate to such Guarantor or to the Credit Documents to which
such Guarantor is a party, each of which is incorporated herein by reference, are true and correct
in all material respects on and as of the date hereof. Each reference to a “Guarantor” in the
Guarantee shall be deemed to include the Additional Guarantor. The Guarantee is hereby
incorporated herein by reference.
SECTION 2. The Additional Guarantor represents and warrants to the Administrative Agent and
the Lenders that this Supplement has been duly authorized, executed and delivered by it and
constitutes its legal, valid and binding obligation, enforceable against it in accordance with its
terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium or other laws
affecting creditors’ rights generally and subject to general principles of equity, regardless of
whether considered in a proceeding in equity or at law.
2
SECTION 3. The Additional Guarantor is a [company] duly [incorporated] under the law of [name
of relevant jurisdiction].
SECTION 4. This Supplement may be executed in counterparts (and by different parties hereto
on different counterparts), and all of said counterparts taken together shall be deemed to
constitute one and the same instrument.
SECTION 5. Except as expressly supplemented hereby, the Guarantee shall remain in full force
and effect.
SECTION 6. THIS SUPPLEMENT SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE
WITH, THE LAW OF THE STATE OF NEW YORK.
SECTION 7. Any provision of this Supplement which is prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in
any other jurisdiction.
SECTION 8. All communications and notices hereunder shall (except as otherwise expressly
permitted by the Guarantee Agreement) be in writing and given as provided in Section 9.01 of the
Credit Agreement.
IN WITNESS WHEREOF, the undersigned has caused this Supplement to be duly executed and
delivered by its duly authorized officer as of the day and year first above written.
[NAME OF ADDITIONAL GUARANTOR], |
||||
By: | ||||
Name: | ||||
Title: | ||||
[ADMINISTRATIVE AGENT], |
||||
By: | ||||
Name: | ||||
Title: | ||||
Signature Page of the Supplement to the Guarantee
EXHIBIT C
FORM OF APPLICABLE MARGIN CERTIFICATE
Reference is made to the Credit Agreement (as amended, supplemented or otherwise modified from
time to time, the “Credit Agreement”) dated as of December 10, 2008, among TIME WARNER
CABLE INC., a Delaware corporation (the “Borrower”), TIME WARNER INC. and the other Lenders
party thereto, and TIME WARNER INC. as Administrative Agent. Unless otherwise defined herein,
terms defined in the Credit Agreement and used herein shall have the meanings given to them in the
Credit Agreement.
Pursuant to the Credit Agreement, the Administrative Agent hereby certifies that (i) the
Applicable Margin for each Category set forth in the grid below has been determined on the
Borrowing Date pursuant to the terms of the Credit Agreement and is set forth in the grid below,
LIBO Rate | ABR | |||
Ratings | Applicable | Applicable | ||
S&P / Xxxxx’x | Margin | Margin | ||
Category A | ||||
A / A2 | ||||
Category B | ||||
A- / A3 | ||||
Category C | ||||
BBB+ / Baa1 | ||||
Category D | ||||
BBB / Baa2 | ||||
Category E | ||||
BBB- / Baa3 | ||||
Category F | ||||
Lower than BBB- /Baa3 |
and (ii) the Average Borrowing Date CDS Price is [ ].
IN WITNESS WHEREOF, the undersigned has caused this certificate to be duly executed as of the
[ ] day of [ ], [ ].
[ADMINISTRATIVE AGENT], |
||||
By: | ||||
Name: | ||||
Title: | ||||
Signature Page of Form of Applicable Margin Certificate
EXHIBIT D
FORM OF BORROWING REQUEST
[ ],
as Administrative Agent for the Lenders referred to below
as Administrative Agent for the Lenders referred to below
[Date]
Ladies and Gentlemen:
The undersigned, Time Warner Cable Inc., a Delaware corporation (the “Borrower”),
refers to the Credit Agreement dated as of December 10, 2008 (as amended, restated, supplemented or
otherwise modified from time to time, the “Credit Agreement”), among the Borrower, the
lenders from time to time party thereto (the “Lenders”) and Time Warner Inc., as
administrative agent (in such capacity, the “Administrative Agent”). Capitalized terms
used herein and not otherwise defined herein shall have the meanings assigned to such terms in the
Credit Agreement.
The Borrower hereby gives you notice pursuant to Section 2.03 of the Credit Agreement that it
requests a Borrowing under the Credit Agreement, and in that connection sets forth below the terms
on which such Borrowing is requested to be made:
(A) Principal Amount of Borrowing: |
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(B) Date of Borrowing: |
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(C) Type of Borrowing: |
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(D) Interest Period: |
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(E) Account Number and Location: |
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The Borrower hereby represents and warrants to the Administrative Agent and the Lenders that,
on the date of the Borrowing requested hereby, the conditions to lending specified in Section 4.02
of the Credit Agreement have been satisfied.
TIME WARNER CABLE INC. |
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By: | ||||
Name: | ||||
Title: | ||||
EXHIBIT E
FORM OF PENDING REINVESTMENT CERTIFICATE
[ ],
as Administrative Agent for the Lenders referred to below
as Administrative Agent for the Lenders referred to below
[Date]
Ladies and Gentlemen:
Reference is made to the Credit Agreement dated as of December 10, 2008 (as amended, restated,
supplemented or otherwise modified from time to time, the “Credit Agreement”), among Time
Warner Cable Inc., a Delaware corporation (the “Borrower”), the lenders from time to time party
thereto (the “Lenders”) and Time Warner Inc., as administrative agent (in such capacity,
the “Administrative Agent”). Capitalized terms used herein and not otherwise defined
herein shall have the meanings assigned to such terms in the Credit Agreement.
The undersigned, [ ], duly elected and qualified as [ ] of the
Borrower, hereby certifies on behalf of the Borrower the following information pursuant to
Section 2.10(b)(iii) or Section 4.02(e) of the Credit Agreement.
Responsive | ||
(1) Pending Reinvestment Certificate Information | Information | |
(A) Date of Carryover Asset Sale |
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(B) Aggregate Amount of Net Cash Proceeds that,
as of the Bridge Facility Maturity Date, have not
been either (x) applied to reduce the commitments
available to be drawn, or prepay the loans
outstanding, under the Bridge Facility Credit
Agreement or (y) expended to acquire or repair
assets useful in the Borrower’s or any Designated
Subsidiaries’ business, including without
limitation, acquisitions, capital expenditures and
other investments |
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(C) Pending Reinvestment Amount |
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(D) Difference between (B) and (C) |
IN WITNESS WHEREOF, the undersigned has hereunto set his name as of [ ].
TIME WARNER CABLE INC. |
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By: | ||||
Name: | ||||
Title: | ||||
Signature Page of Form of Pending Reinvestment Certificate