EXHIBIT 10.4
EXECUTION COPY
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CREDIT AGREEMENT
Dated as of
April 13, 2006
among
TW AOL HOLDINGS INC.,
AOL HOLDINGS LLC
and
AOL LLC,
as Borrower
The Lenders Party Hereto,
and
BNP PARIBAS and THE BANK OF TOKYO-MITSUBISHI UFJ, LTD., NEW YORK BRANCH,
as Co-Administrative Agents
$500,000,000 THREE-YEAR TERM LOAN FACILITY
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BNP PARIBAS SECURITIES CORP. AND THE BANK OF TOKYO-MITSUBISHI UFJ,
LTD., NEW YORK BRANCH,
as Joint-Lead Arrangers and Joint Bookrunners
TABLE OF CONTENTS
PAGE
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ARTICLE I Definitions........................................................... 1
SECTION 1.01. Defined Terms.................................................. 1
SECTION 1.02. Classification of Loans and Borrowings......................... 17
SECTION 1.03. Terms Generally................................................ 17
SECTION 1.04. Accounting Terms; GAAP......................................... 17
SECTION 1.05. Administrative Agent........................................... 18
ARTICLE II The Credits.......................................................... 18
SECTION 2.01. Commitments.................................................... 18
SECTION 2.02. Loans and Borrowings........................................... 18
SECTION 2.03. Procedures for Borrowing....................................... 19
SECTION 2.04. [Intentionally left blank]..................................... 19
SECTION 2.05. [Intentionally left blank]..................................... 19
SECTION 2.06. Funding of Borrowings.......................................... 19
SECTION 2.07. Interest Elections............................................. 19
SECTION 2.08. Termination and Reduction of Commitments....................... 21
SECTION 2.09. Repayment of Loans; Evidence of Debt........................... 21
SECTION 2.10. Prepayment of Loans............................................ 22
SECTION 2.11. Fees........................................................... 22
SECTION 2.12. Interest....................................................... 22
SECTION 2.13. Alternate Rate of Interest..................................... 23
SECTION 2.14. Increased Costs................................................ 23
SECTION 2.15. Break Funding Payments......................................... 25
SECTION 2.16. Taxes.......................................................... 25
SECTION 2.17. Payments Generally; Pro Rata Treatment; Sharing of Setoffs..... 26
SECTION 2.18. Mitigation Obligations; Replacement of Lenders................. 28
ARTICLE III Representations and Warranties...................................... 28
SECTION 3.01. Organization; Powers........................................... 28
SECTION 3.02. Authorization; Enforceability.................................. 29
SECTION 3.03. Governmental Approvals; No Conflicts........................... 29
SECTION 3.04. Financial Condition; No Material Adverse Change................ 29
SECTION 3.05. Properties..................................................... 30
SECTION 3.06. Litigation and Environmental Matters........................... 30
SECTION 3.07. Compliance with Laws and Agreements............................ 30
SECTION 3.08. Government Regulation.......................................... 30
SECTION 3.09. Taxes.......................................................... 31
SECTION 3.10. ERISA.......................................................... 31
SECTION 3.11. Disclosure..................................................... 31
ARTICLE IV Conditions........................................................... 31
SECTION 4.01. Closing Date................................................... 31
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PAGE
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SECTION 4.02. Borrowing Date................................................. 32
ARTICLE V Affirmative Covenants................................................. 33
SECTION 5.01. Financial Statements and Other Information..................... 33
SECTION 5.02. Notices of Material Events..................................... 35
SECTION 5.03. Existence; Conduct of Business................................. 36
SECTION 5.04. Payment of Obligations......................................... 36
SECTION 5.05. Maintenance of Properties; Insurance........................... 36
SECTION 5.06. Books and Records; Inspection Rights........................... 36
SECTION 5.07. Compliance with Laws........................................... 37
SECTION 5.08. Use of Proceeds................................................ 37
SECTION 5.09. Fiscal Periods; Accounting..................................... 37
SECTION 5.10. Additional Guarantees.......................................... 37
SECTION 5.11. Funded Debt.................................................... 37
ARTICLE VI Negative Covenants................................................... 37
SECTION 6.01. Consolidated Leverage Ratio.................................... 38
SECTION 6.02. Indebtedness................................................... 38
SECTION 6.03. Liens.......................................................... 38
SECTION 6.04. Mergers, Etc. ................................................. 39
SECTION 6.05. Investments.................................................... 39
SECTION 6.06. Restricted Payments............................................ 39
SECTION 6.07. Transactions with Affiliates................................... 39
SECTION 6.08. Unrestricted Subsidiaries...................................... 40
ARTICLE VII Events of Default................................................... 40
ARTICLE VIII The Agents......................................................... 43
ARTICLE IX Miscellaneous........................................................ 45
SECTION 9.01. Notices........................................................ 45
SECTION 9.02. Waivers; Amendments............................................ 46
SECTION 9.03. Expenses; Indemnity; Damage Waiver............................. 47
SECTION 9.04. Successors and Assigns......................................... 48
SECTION 9.05. Survival....................................................... 50
SECTION 9.06. Counterparts; Integration; Effectiveness....................... 51
SECTION 9.07. Severability................................................... 51
SECTION 9.08. Right of Setoff................................................ 51
SECTION 9.09. Governing Law; Jurisdiction; Consent to Service of Process..... 51
SECTION 9.10. WAIVER OF JURY TRIAL........................................... 52
SECTION 9.11. Headings....................................................... 52
SECTION 9.12. Confidentiality................................................ 52
SECTION 9.13. Acknowledgements............................................... 53
SECTION 9.14. Assignments and Assumptions.................................... 53
SECTION 9.15. Release........................................................ 53
SECTION 9.16. USA Patriot Act................................................ 53
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SCHEDULES:
Schedule 2.01 Commitments
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
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THREE-YEAR CREDIT AGREEMENT (as amended, supplemented or otherwise
modified from time to time, this "Agreement") dated as of April 13, 2006, among
TW AOL HOLDINGS INC., a Virginia corporation ("TW AOL Holdco"), AOL HOLDINGS
LLC, a Delaware limited liability company ("Holdco"), AOL LLC, a Delaware
limited liability company ("AOL LLC"), the several banks and other financial
institutions from time to time parties to this Agreement (the "Lenders"), and
BNP PARIBAS and THE BANK OF TOKYO-MITSUBISHI UFJ, LTD., NEW YORK BRANCH as
co-administrative agents.
WITNESSETH:
WHEREAS, TW AOL Holdco has requested the Lenders to make loans to it
in an aggregate amount of up to $500,000,000 as more particularly described
herein;
WHEREAS, immediately after the making of the Loans to, and the
receipt of the proceeds of such Loans by, TW AOL Holdco, pursuant to the
Contribution Agreement, Holdco shall assume the Loans and become the Borrower
hereunder;
WHEREAS, immediately after the assumption of the Loans by Holdco,
AOL LLC shall assume the Loans and become the Borrower hereunder;
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, with respect
to any Person, (a) the balance sheet of such Person and the Restricted
Subsidiaries (treating Unrestricted Subsidiaries as equity investments of such
Person to the extent that such Unrestricted Subsidiaries would not otherwise be
treated as equity investments of such Person in accordance with GAAP) as of the
end of such period and (b) the related statements of operations and stockholders
equity for such 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 such Person to the extent that such Unrestricted Subsidiaries
would not otherwise be treated as equity investments of such Person 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
2
Point) equal to (a) the LIBO Rate for such Interest Period multiplied by (b) the
Statutory Reserve Rate.
"Administrative Agent" means, subject to Section 1.05, collectively,
the Co-Administrative Agents; provided that, in the event that the
Co-Administrative Agents, acting in their separate capacities as Lenders, are no
longer the only Lenders hereunder, then the Administrative Agent shall
thereafter be the Co-Administrative Agent with the greater Applicable Percentage
(or such Co-Administrative Agent as each Co-Administrative Agent shall agree in
writing, as notified to the Borrower and each other Lender), together with any
successor Administrative Agent 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.
"Agents" means the Co-Administrative Agents and the Administrative
Agent.
"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.
"AOL LLC" has the meaning set forth in the preamble hereto.
"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 Commitment 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.
"Applicable Rate" means, for any day, with respect to any Eurodollar
Loan, the applicable rate per annum set forth below expressed in Basis Points
under the caption "Eurodollar Loan Spread" 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, applicable on such date to
Time Warner:
RATINGS EURODOLLAR
S&P / MOODY'S LOAN SPREAD
--------------------- -----------
Category A
A / A2 25.0
Category B
A- / A3 35.0
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RATINGS EURODOLLAR
S&P / MOODY'S LOAN SPREAD
--------------------- -----------
Category C
BBB+ / Baa1 45.0
Category D
BBB / Xxx0 00.0
Xxxxxxxx X
XXX- / Xxx0 75.0
Category F
Lower than BBB- /Baa3 100.0
For purposes of determining the Applicable Rate (A) 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 (C) of this definition), then the
Rating assigned by the other rating agency shall be used; (B) if the relevant
Ratings assigned by Moody's and S&P shall fall within different Categories, the
Applicable Rate 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 Rate shall be determined by reference to the Category next below
that of the higher of the two ratings; (C) if either rating agency shall cease
to assign a relevant Rating solely because Time Warner elects not to participate
or otherwise cooperate in the ratings process of such rating agency, the
Applicable Rate shall not be less than that in effect immediately before such
rating agency's Rating for Time Warner became unavailable; and (D) if the
relevant Ratings assigned by Moody's or S&P 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 Rate 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, Time Warner
and the 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, pending the effectiveness of any such amendment, the
Applicable Rate shall be determined by reference to the rating most recently in
effect prior to such change or cessation.
"Arrangers" means BNP Paribas Securities Corp. and The Bank of
Tokyo-Mitsubishi UFJ, Ltd., New York Branch.
"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.
"Availability Period" means the period beginning on the Closing Date
through and including April 30, 2006.
"Basis Point" means 1/100th of 1%.
"Board" means the Board of Governors of the Federal Reserve System
of the United States.
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"Borrower" means (a) initially and prior to the First Assumption, TW
AOL Holdco, (b) after the First Assumption and prior to the Second Assumption,
Holdco, and (c) after the Second Assumption, AOL LLC.
"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 of the initial Borrowing of the
Loans pursuant to Section 2.01.
"Borrowing Request" means the request by the Borrower for a
Borrowing in accordance with Section 2.03.
"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.
"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
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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, (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 the United States government or residential whole loan mortgages, and (i)
demand deposit accounts maintained in the ordinary course of business.
"Change in Control" means (a) Time Warner, directly or indirectly,
ceasing to (i) have beneficial ownership (within the meaning of Section 13(d)
and 14(d) of the Exchange Act) 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 (ii) have the power to vote
or direct the voting of securities having a majority of the ordinary voting
power for the election of the board of directors (or the equivalent thereof) of
the Borrower 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 (or equivalent thereof) 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.
"Closing 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 April 13, 2006.
"Co-Administrative Agent" means each of BNP Paribas and The Bank of
Tokyo-Mitsubishi UFJ, Ltd., New York Branch, together with its respective
affiliates, as an arranger of the Commitments and as co-administrative agent for
the Lenders hereunder.
"Code" means the Internal Revenue Code of 1986, as amended from time
to time.
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"Commitment" means, with respect to each Lender, the commitment of
such Lender to make a Loan hereunder on the Borrowing Date as set forth on
Schedule 2.01 under the heading "Commitment".
"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
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
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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.
"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 the sum of (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, (b) the aggregate principal amount of any such Indebtedness between
or among the Companies and (c) the aggregate amount, without duplication, of all
Guarantee Obligations of the Borrower and any of its Subsidiaries in respect of
Indebtedness for borrowed money of Time Warner and its Subsidiaries, all
determined on a consolidated basis in accordance with GAAP.
"Contribution Agreement" means the Contribution Agreement dated as
of March 24, 2006 among Time Warner, Google and America Online Inc.
"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.
8
"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.
"Dollars" or "$" refers to lawful money of the United States.
"Eligible Assignee" means 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.
"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
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) the
existence with respect to any Plan of an "accumulated funding deficiency" (as
defined in Section 412 of the Code or Section 302 of ERISA), whether or not
waived; (c) the filing pursuant to Section 412(d) of the Code or in Section
303(d) of ERISA 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
9
notice relating to an intention to terminate any 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.
"Financial Officer" means, with respect to any Person, the chief
financial officer, principal accounting officer, treasurer or controller of such
Person.
"First Assumption" has the meaning set forth in Section 9.14.
10
"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.
"Funded Debt" means Consolidated Total Debt for borrowed money
(including, without limitation, the Loans, any Indebtedness owing to Group
Members (other than the Companies) and Capital Lease Obligations).
"GAAP" means generally accepted accounting principles in the United
States.
"Google" means Google Inc., a Delaware corporation.
"Google Transaction" means the sale by Holdco of 5.0% of the Capital
Stock of Holdco to Google pursuant to the Contribution Agreement.
"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.
"Group Member" means the collective reference to Time Warner and its
Subsidiaries.
"Guarantee" means the guarantee by the Subsidiary Guarantors of the
Obligations, 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 the Subsidiary Guarantors.
"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
11
gas, infectious or medical wastes and all other substances or wastes of any
nature regulated pursuant to any Environmental Law.
"Historic TW" means, Historic TW Inc. (f/k/a Time Warner Inc.), a
Delaware Corporation.
"Holdco" has the meaning set forth in the preamble hereto.
"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 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.
"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
12
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 or twelve
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
(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 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
13
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 office of the Administrative
Agent (or, if the Administrative Agent does not at the time maintain a London
office, the principal London office of any Affiliate of the Administrative
Agent) 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 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 events described in Section 6.08
or 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 Group Members in an aggregate principal amount exceeding $200,000,000.
"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 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, provided that, for purposes of the
definition of "Subsidiary Guarantor" and Section 5.10 only, such calculation
shall exclude goodwill;
(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 furnished
14
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 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 third anniversary of the Closing Date.
"Moody's" means Xxxxx'x Investors Service, Inc.
"Multiemployer Plan" means a multiemployer plan as defined in
Section 4001(a)(3) of ERISA.
"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.
"Officer's Certificate" means a certificate executed by the Chief
Financial Officer, the Treasurer or the Controller 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.
"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.
"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 set forth in Section 5.01.
"Prime Rate" means 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
15
City; 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 set forth in Section 5.01.
"Rating" has the meaning assigned to such term in the definition of
"Applicable Rate".
"Register" has the meaning set forth in Section 9.04(c).
"Related Parties" means, with respect to any specified Person, such
Person's Affiliates and the respective directors, officers, employees, agents
and advisors of such Person and such Person's Affiliates.
"Required Lenders" means, (a) prior to the Borrowing Date, Lenders
having Commitments representing more than 50% of the sum total of the
Commitments at such time, 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, Treasurer or Controller (or any
equivalent of the foregoing officers) of 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.
"S&P" means Standard & Poor's Rating Services.
"SEC" means the Securities and Exchange Commission, any successor
thereto and any analogous Governmental Authority.
"Second Assumption" has the meaning set forth in Section 9.14.
"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 Administrative Agent is subject for
eurocurrency funding (currently referred to as "Eurocurrency Liabilities" in
Regulation D of the Board). Such reserve percentage shall include those imposed
16
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.
"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.
"Subsidiary Guarantor" means each Material Subsidiary of the
Borrower that is a U.S. Person and a Restricted Subsidiary.
"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. For the avoidance of doubt, a Tax Distribution shall include
payments made pursuant to the Tax Matters Agreement.
"Tax Matters Agreement" means the Tax Matters Agreement dated as of
April 13, 2006 between Time Warner and Holdco, as amended, supplemented,
modified or replaced from time to time.
"Taxes" means any and all present or future taxes, levies, imposts,
duties, deductions, charges or withholdings imposed by any Governmental
Authority.
"TBS" means Xxxxxx Broadcasting System, Inc., a Georgia corporation.
"Time Warner" means Time Warner Inc., a Delaware corporation.
"Time Warner Guarantee" means a guarantee by each of Time Warner,
Historic TW, TBS and TWCI, substantially in the form of Exhibit B.
"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 AOL Holdco" has the meaning set forth in the preamble hereto.
17
"TWCI" means Time Warner Companies, Inc., a Delaware corporation.
"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.
"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.
"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.
"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 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),
18
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.
SECTION 1.05. Administrative Agent. Notwithstanding anything herein
to the contrary, so long as the Co-Administrative Agents are the only Lenders
hereunder, (a) all payments of principal, interest or fees required to be paid
to the Lenders hereunder shall be paid ratably to the Co-Administrative Agents,
in their capacities as Lenders, in accordance with their respective Applicable
Percentages, (b) all notices or other documents required to be delivered to the
Administrative Agent hereunder shall be delivered to each Co-Administrative
Agent, (c) any consent or other approval or designation required to be made by
the Administrative Agent hereunder shall be made by each Co-Administrative Agent
acting together, (d) any notice required to be delivered by the Administrative
Agent hereunder may be delivered by either Co-Administrative Agent (with a copy
to the other Co-Administrative Agent), (e) any rate to be determined by
reference to the Administrative Agent's rate shall be determined by reference to
the rate of BNP Paribas, (f) the requirements of Section 2.09(c) shall be
satisfied by compliance with Section 2.09(b), (g) any action permitted to be
taken by the Administrative Agent pursuant to Article VII shall be taken by the
Co-Administrative Agents acting together and (h) any assignment of Loans by a
Co-Administrative Agent, in its capacity as a Lender, shall require the consent
(which consent shall not be unreasonably withheld) of the other
Co-Administrative Agent (except in the case of an assignment to an Affiliate, in
which case such Co-Administrative Agent shall notify the other Co-Administrative
Agent thereof).
ARTICLE II
THE CREDITS
SECTION 2.01. Commitments. Subject to the terms and conditions set
forth herein, each Lender agrees to make Loans available to the Borrower in a
single Borrowing in Dollars during the Availability Period in an amount not to
exceed such Lender's Commitment. 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 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 any other Lender of its obligations
hereunder.
(b) Subject to Section 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
19
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 15 Eurodollar Borrowings outstanding.
(d) Notwithstanding any other provision of this Agreement, 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 in a form approved by the Administrative Agent and
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 date of such Borrowing, which shall be a Business Day;
(c) whether 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 Borrower's 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.
SECTION 2.04. [Intentionally left blank].
SECTION 2.05. [Intentionally left blank].
SECTION 2.06. Funding of Borrowings. Each Lender shall make the 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 Borrower
specified on Schedule 2.03(B) or designated by the Borrower in the Borrowing
Request.
SECTION 2.07. Interest Elections. (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
20
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 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.
(b) 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.
(c) 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) whether the resulting Borrowing is to be an ABR Borrowing or a
Eurodollar Borrowing;
(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.
(d) 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.
(e) 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.
21
SECTION 2.08. Termination and Reduction of Commitments. (a) The
Commitments shall terminate on April 30, 2006.
(b) 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 $1,000,000.
(c) 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. Promptly following receipt of any notice, the Administrative Agent
shall advise the Lenders of the contents thereof. Each notice delivered by the
Borrower pursuant to this Section shall be irrevocable; provided that a notice
of termination of the Commitments delivered by the Borrower may state that such
notice is conditioned upon the effectiveness of other financing, 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 permanent.
Each reduction of the Commitments 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, absent manifest error, 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
22
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, subject to prior notice in accordance with paragraph (b) of this Section.
Amounts prepaid on account of the Loans may not be reborrowed.
(b) If the Borrower desires to make a prepayment, it shall notify
the Administrative Agent by telephone (confirmed by facsimile) of any prepayment
hereunder in accordance with Schedule 2.03(A). Each such notice shall be
irrevocable and 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 financing, 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. Each
prepayment of a Borrowing hereunder shall be applied ratably to the Loans
included in the prepaid Borrowing. Prepayments shall be accompanied by accrued
interest to the extent required by Section 2.12.
SECTION 2.11. Fees. (a) The Borrower agrees to pay to the
Administrative Agent, for its own account, fees payable in the amounts and at
the times separately agreed upon between the Borrower and the Administrative
Agent.
(b) The Borrower agrees to pay to the Administrative Agent for the
account of each Lender a utilization fee equal to 0.05% of the aggregate
principal amount of the Loans outstanding (i) on the first anniversary of the
Closing Date, payable on such date or the first Business Day thereafter, (ii) on
the second anniversary of the Closing Date, payable on such date or the first
Business Day thereafter and (iii) on the date that is thirty months after the
Closing Date, payable on such date or the first Business Day thereafter. 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.
(c) Fees paid shall not be refundable under any circumstances absent
manifest error in the calculation and/or payment thereof.
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.
(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 Rate.
(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
23
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, 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:
(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,
24
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 this sentence shall not in
any way limit the discretion of any Lender to waive the right to demand such
compensation in any given case).
25
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(b) 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 include an 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. 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 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.
26
(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.
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
27
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.
(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 made
by the Borrower pursuant to and in accordance with the express terms of this
Agreement or any payment 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). 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 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
28
(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 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. The Borrower 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
29
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.
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 Time Warner
and its consolidated Subsidiaries as of and for the twelve months ended December
31, 2005, 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 Time Warner since December 31, 2005 and
prior to the Closing Date, present fairly, in all material respects, the
financial position and results of operations and cash flows of Time Warner and
its consolidated Subsidiaries, as of such date and for such period, in
accordance with GAAP.
(b) The consolidating information with respect to AOL LLC and its
consolidated Subsidiaries for the date and period described in foregoing
paragraph (a), copies of which have heretofore been furnished to each Lender,
present fairly, in all material respects, the financial position and results of
operations and cash flows of AOL LLC and its consolidated Subsidiaries as of
such date and for such period.
(c) The unaudited pro forma consolidated balance sheet of Holdco and
its consolidated Subsidiaries at January 31, 2006 (the "Pro Forma Balance
Sheet"), copies of which have heretofore been furnished to each Lender, has been
prepared giving effect (as if such events had occurred on such date) to (i) the
consummation of the Google Transaction, (ii) the Loans to be made on the
Borrowing Date (including the First Assumption and the Second Assumption)
30
and the use of proceeds thereof and (iii) the payment of fees and expenses in
connection with the foregoing. The Pro Forma Balance Sheet has been prepared
based on the best information available to Holdco as of the date of delivery
thereof, and presents fairly, in all material respects, on a pro forma basis the
estimated financial position of Holdco and its consolidated Subsidiaries at
January 31, 2006, assuming that the events specified in clauses (i), (ii) and
(iii) in the preceding sentence had actually occurred at such date.
(d) Since December 31, 2005 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, and Holdco 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
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. 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
31
which regulates the incurrence of indebtedness for borrowed money, other than,
in the case of this clause (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.
SECTION 3.09. Taxes. The Borrower and each of its 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 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 Closing 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 Time Warner since December 31, 2005, 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 dates and the Closing 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.
ARTICLE IV
CONDITIONS
SECTION 4.01. Closing Date. The effectiveness of this Agreement and
the obligations of the Lenders to make Loans hereunder 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, if any.
(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 Closing Date) of (i) Cravath, Swaine & Xxxxx
LLP, counsel for the Credit
32
Parties and (ii) in-house counsel to the Credit Parties, in each case in
form and substance reasonably satisfactory to the Administrative Agent. TW
AOL Holdco, Holdco and AOL LLC hereby request each such counsel to deliver
such opinions.
(c) Closing Certificate. The Administrative Agent shall have
received a certificate from each Credit Party, in form and substance
reasonably satisfactory to the Administrative Agent, dated the Closing
Date and signed by the president, a vice president, a financial officer or
an equivalent officer of such Credit Party, including, in the case of the
Borrower, confirmation of compliance with the conditions set forth in
paragraphs (c) and (d) of Section 4.02.
(d) Fees. The Borrower shall have paid all fees required to be paid
on or before the Closing Date by the Borrower in connection with the
credit facility provided for in this Agreement.
(e) 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 reasonably
satisfactory to the Administrative Agent and its counsel.
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 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 Closing Date specifying its objection
thereto.
SECTION 4.02. Borrowing Date. The availability of the Loans on the
Borrowing Date shall be conditioned upon the satisfaction of the following
conditions:
(a) The receipt by the Administrative Agent of a certificate of the
Borrower certifying that the Google Transaction shall be consummated immediately
after the making of Loans hereunder on the Borrowing Date.
(b) The representations and warranties of the Borrower set forth in
the Credit Documents (other than those set forth in Sections 3.04(d), 3.06 and
3.10 on any date other than the Closing Date) shall be true and correct in all
material respects on and as of such date.
(c) At the time of and immediately after giving effect to the
Borrowing on such date, no Default or Event of Default shall have occurred and
be continuing.
Such Borrowing shall be deemed to constitute a representation and
warranty by the Borrower on the Borrowing Date as to the applicable matters
specified in paragraphs (b) and (c) of this Section.
33
ARTICLE V
AFFIRMATIVE COVENANTS
Until the Commitments have expired or been terminated and 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 Time
Warner, Time Warner'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 Time Warner's unaudited Adjusted Financial
Statements for such fiscal year, setting forth in each case consolidating
information with respect to the Borrower and its consolidated Subsidiaries
on a stand-alone basis and in comparative form the figures for the
previous fiscal year (including in respect of such consolidating
information), 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 Time Warner and its consolidated Subsidiaries
on a consolidated basis in accordance with GAAP consistently applied, (ii)
in the case of the Adjusted Financial Statements, all certified by one of
Time Warner's Financial Officers as presenting fairly in all material
respects the financial condition and results of operations of Time Warner
and the consolidated Restricted Subsidiaries on a consolidated basis in
accordance with GAAP consistently applied and (iii) in the case of the
consolidating information of the Borrower and its consolidated
Subsidiaries, 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;
provided that (x) so long as no Event of Default has occurred and is
continuing, the Borrower shall not be required to furnish such 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 such financial statements) on a 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 Subsidiary Guarantor to any Lender;
(b) within 60 days after the end of each of the first three fiscal
quarters of each fiscal year of Time Warner (including the fiscal quarter
ending March 31, 2006), Time Warner's unaudited consolidated balance sheet
and related statements of operations, stockholders' equity and cash flows
and Time Warner'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 consolidating information with respect to
the Borrower and its consolidated Subsidiaries on a stand-alone basis and
in comparative
34
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
(including in respect of such consolidating information) and (i) in the
case of Time Warner's unaudited consolidated balance sheet and related
statements of operations, stockholders' equity and cash flows and Time
Warner's Adjusted Financial Statements, all certified by one of Time
Warner's Financial Officers as presenting fairly in all material respects
the financial condition and results of operations of Time Warner 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, and (ii) in the case of the consolidating
information of the Borrower and its consolidated Subsidiaries, 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 such
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 Subsidiary
Guarantor to any Lender;
(c) concurrently with any delivery of financial statements under
clause (a) above (beginning with the fiscal year ending December 31,
2006), the unaudited consolidated balance sheet and related statements of
operations, stockholders' equity and cash flows as of the end of and for
such year for the Borrower and unaudited Adjusted Financial Statements for
such fiscal year for the Borrower, setting forth in each case in
comparative form the figures for the previous fiscal year (commencing with
the fiscal year ending December 31, 2007), all certified by one of the
Borrower's Financial Officers as presenting fairly in all material
respects the respective financial condition and results of operations of
the Borrower 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 its
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 their respective financial
statements) on a 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 Subsidiary Guarantor
to any Lender;
(d) concurrently with any delivery of financial statements under
clause (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 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;
35
(e) 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
(f) 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).
Information required to be delivered pursuant to paragraphs (a),
(b), (c), (d) and (e) 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), (d)
and (e) 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:
36
(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
(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 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
37
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 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 for working capital needs, for general corporate purposes of the Borrower
(including intercompany loans to Group Members) and its Subsidiaries, including
the repayment of indebtedness of existing and future Subsidiaries of the
Borrower. No part of the proceeds of any Loan will be used, whether directly or
indirectly, for any purpose that entails a violation of any of the Regulations
of the Board, including Regulations U and X.
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 Guarantees. (a) With respect to any new
Material Subsidiary that is a U.S. Person and a Restricted Subsidiary created or
acquired after the Closing Date or any Subsidiary that is a U.S. Person and a
Restricted Subsidiary that becomes a Material Subsidiary after the Closing Date,
promptly cause such new Material Subsidiary that is a U.S. Person and a
Restricted Subsidiary to (i) become a party to the Guarantee by executing and
delivering to the Administrative Agent an assumption agreement substantially in
the form attached to the Guarantee and (ii) deliver to the Administrative Agent
such documents, certificates and legal opinions as the Administrative Agent may
reasonably request in connection therewith.
(b) Promptly after the execution and delivery of the Time Warner
Guarantee, deliver to the Administrative Agent such documents, certificates and
legal opinions as the Administrative Agent may reasonably request in connection
therewith, it being understood that the execution and delivery of the Time
Warner Guarantee shall be at Time Warner's sole discretion.
SECTION 5.11. Funded Debt. For at least one of the seven Business
Days immediately following the Borrowing Date, the aggregate amount of Funded
Debt shall not exceed $1,200,000,000.
ARTICLE VI
NEGATIVE COVENANTS
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:
38
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 (including the fiscal quarter ending March 31, 2006) will not
exceed 4.50 to 1.00.
SECTION 6.02. Indebtedness. At any time that the Time Warner
Guarantee is not in full force and effect, Consolidated Total Debt will not
exceed the sum of (a) $2,000,000,000 and (b) the aggregate principal amount of
any payment or prepayment of the Loans hereunder as of such time.
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 $100,000,000 or
apply to property or assets of the Borrower and the Restricted
Subsidiaries in excess of $100,000,000;
(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 clause (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;
(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;
39
(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 clause 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 Closing Date,
provided that (i) the Borrower shall not merge into or consolidate with such
other Person, unless the Borrower shall survive such consolidation or merger,
(ii) the Borrower shall not liquidate or dissolve, (iii) no Subsidiary Guarantor
shall merge into or consolidate with such other Person, unless such Subsidiary
Guarantor or the Borrower or another Subsidiary Guarantor shall survive such
consolidation or merger, and (iv) no Subsidiary Guarantor shall liquidate or
dissolve except into the Borrower or another Subsidiary Guarantor.
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 on or prior to the date hereof including transactions
contemplated by the Contribution Agreement, (b) in the ordinary course of
business
40
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, (e) the Tax
Matters Agreement and (f) 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. The Borrower may designate any of its Subsidiaries 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 an Officers' Certificate delivered to the Administrative Agent at
the time of such designation. Such Officers' Certificate also shall state the
specific purpose for which such designation is being made. All Subsidiaries of
Unrestricted Subsidiaries shall be Unrestricted Subsidiaries. If any Subsidiary
Guarantor is designated as an Unrestricted Subsidiary (or otherwise becomes an
Unrestricted Subsidiary) pursuant to this Section 6.08, it shall automatically
be released from its obligations under the Guarantee without any further action.
(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 an Officer's Certificate 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 clause (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
41
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 clause (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 clause (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;
(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 clause (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;
42
(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;
(n) except as otherwise permitted by this Agreement or the terms of
the Time Warner Guarantee, the Time Warner Guarantee shall (at any time
after the execution and delivery thereof) cease, for any reason, to be in
full force and effect with respect to Time Warner or any Credit Party
shall so assert; or
(o) a Change in Control shall occur;
then, and in every such event (other than an event with respect to the Borrower
described in clause (h) or (i) of this Article VII), and at any time thereafter
during the continuance of such 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 clause (h) or (i) of this
Article VII, 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.
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ARTICLE VIII
THE AGENTS
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.
Each bank serving as an 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 an Agent, and such bank 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 an 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 bank serving as Administrative Agent or
any of its Affiliates in any capacity. 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
44
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-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, 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 each 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),
45
ratably according to their 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 such 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 such Agent under or in connection with any of the foregoing;
provided that no Lender shall be liable for the payment of any portion of such
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements that are found by a final and nonappealable
decision of a court of competent jurisdiction to have resulted from such Agent's
gross negligence or willful misconduct. The agreements in this paragraph shall
survive the payment of the Loans and all other amounts payable hereunder.
Each Lender acknowledges that it has, independently and without
reliance upon any Agent or any other Lender and based on such documents and
information as it has deemed appropriate, made its own credit analysis and
decision to enter into this Agreement. Each Lender also acknowledges that it
will, independently and without reliance upon any 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 00000 XXX Xxx, Xxxxxx, XX 00000,
Attention of Chief Financial Officer (Facsimile No. (000) 000-0000), with
copies to Time Warner, Inc. at One Time Xxxxxx Xxxxxx, Xxx Xxxx, XX 00000,
Attention of Chief Financial Officer (Facsimile No. (000) 000-0000), with
copies to its General Counsel (Facsimile No. (000) 000-0000) and its
Treasurer (Facsimile No. (000) 000-0000);
(ii) if to the Administrative Agent and in accordance with Section
1.05, to (A) BNP Paribas, 000 Xxxxxxx Xxxxxx, Xxx Xxxx, XX 00000,
Attention of Xxxxx Xxxxxx (Facsimile No. 212-841-2747) and (B) The Bank of
Tokyo-Mitsubishi UFJ, Ltd., New York Branch, 1251 Avenue of the Xxxxxxxx,
00xx Xxxxx, Xxx Xxxx, XX 00000, Attention of Xxxxxxx Xxx (Facsimile No.
212-782-6440), with a copy to BTM Operations Office for the Americas, x/x
Xxx Xxxx xx Xxxxx-Xxxxxxxxxx XXX, Xxx., Xxx Xxxx Xxxxxx, 0000 Avenue of
the Xxxxxxxx, 00xx Xxxxx, Xxx Xxxx, XX 00000, Attention of Xxxxxxx Xx
(Facsimile No. 201-521-2304); and
46
(iii) if to any other Lender, to it at its address (or facsimile
number) set forth 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, 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 clause (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
47
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 Subsidiary
Guarantor is designated as an Unrestricted Subsidiary (or otherwise becomes an
Unrestricted Subsidiary) pursuant to Section 6.08 then the Guarantee shall
automatically be released with respect to such Subsidiary Guarantor without any
further action; (vi) release Time Warner from its obligations under the Time
Warner Guarantee (at any time after the execution and delivery thereof) without
the prior written consent of each Lender, provided that if the event specified
in Section 9.15 occurs then the Time Warner Guarantee shall be automatically
released without any further action or (vii) change any of the provisions of
this Section or the definition of "Required Lenders" or any other provision
hereof specifying the 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 shall be permitted to cause
additional Affiliates to, directly or indirectly, guarantee Obligations of the
Borrower 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 Arrangers,
the Administrative Agent 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), and (ii) all
out-of-pocket expenses incurred by the Agents or the Lenders, including the
reasonable fees, charges and disbursements of any counsel for the Agents 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
that the Agents 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 each 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
48
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 or related expenses
resulted from the gross negligence or willful misconduct of such Indemnitee (or
a Related Party of such Indemnitee).
(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 the Loans at the time owing to it, but
not its Commitment); 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), (ii) 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 Loans, each assignment shall not be less than
an aggregate principal amount of $25,000,000 and the remaining amount of the
Loans held by the assigning Lender after giving effect to such assignment shall
not be less than $25,000,000 unless each of the Borrower and the Administrative
Agent otherwise consents, (iii) 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, (iv) 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
49
(provided that, in no event shall either Co-Administrative Agent be required to
pay such recordation fee), and (v) 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 clause (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, 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 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
50
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, 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.
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
51
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.
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 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
52
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 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 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 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
53
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;
(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. Assignments and Assumptions. (a) Effective immediately
after receipt of the proceeds of the Loans by TW AOL Holdco, pursuant to the
Contribution Agreement, TW AOL Holdco hereby irrevocably assigns, transfers and
conveys to Holdco all of its rights, obligations, covenants, agreements, duties
and liabilities as the "Borrower" hereunder, and Holdco hereby expressly assumes
(the "First Assumption") all obligations, covenants, agreements, duties and
liabilities of TW AOL Holdco as the "Borrower" hereunder (including, without
limitation, all obligations in respect of the Loans).
(b) Effective immediately after the First Assumption, Holdco hereby
irrevocably assigns, transfers and conveys to AOL LLC all of its rights,
obligations, covenants, agreements, duties and liabilities as the "Borrower"
hereunder, and AOL LLC hereby expressly assumes (the "Second Assumption") all
obligations, covenants, agreements, duties and liabilities of Holdco as the
"Borrower" hereunder (including, without limitation, all obligations in respect
of the Loans).
SECTION 9.15. Release. Time Warner shall be automatically released
from its obligations under the Time Warner Guarantee upon receipt by the
Administrative Agent of a certificate of a Responsible Officer certifying that
Consolidated Total Debt does not exceed the sum of (a) $2,000,000,000 and (b)
the aggregate principal amount of any payment or prepayment of the Loans
hereunder as of the date of such certificate.
SECTION 9.16. USA Patriot Act. Each Lender hereby notifies the
Borrower that pursuant to the requirements of the USA Patriot Act (Title III of
Pub. L. 107-56 (signed into law
54
October 26, 2001)) (the "Act"), it is required to obtain, verify and record
information that identifies the Borrower, which information includes the name
and address of the Borrower and other information that will allow such Lender to
identify the Borrower 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.
TW AOL HOLDINGS INC.
By /s/ Xxxxxxx X. Xxxxxx
----------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Sr. Vice President and Treasurer
AOL HOLDINGS LLC
By /s/ Xxxxxxx X. Xxxxxx
----------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President and Asst. Treasurer
AOL LLC
By /s/ Xxxxxxx X. Xxxxxx
----------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President and Asst. Treasurer
AOL LLC
Three-Year Credit Agreement
BNP PARIBAS, as Co-Administrative Agent and a
Lender
By: /s/ Xxxx Xxxxxxx
--------------------------------------
Name: Xxxx Xxxxxxx
Title: Vice President
THE BANK OF TOKYO-MITSUBISHI UFJ, LTD.,
NEW YORK BRANCH, as Co-Administrative
Agent and a Lender
By: /s/ Xxxxxxx Xxxxxx
--------------------------------------
Name: Xxxxxxx Xxxxxx
Title: Authorized Signatory
AOL LLC
Three-Year Credit Agreement
SCHEDULE 2.01
ADDRESS OF NOTICES; COMMITMENTS
Lender Name and Address Commitment
----------------------- ----------
BNP Paribas $250,000,000.00
000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxx Xxxxxx
Telephone: 000-000-0000
Facsimile: 000-000-0000
The Bank of Tokyo-Mitsubishi UFJ, Ltd., New York Branch $250,000,000.00
0000 Xxxxxx xx xxx Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxxx Xxxxxx
Telephone: 000-000-0000
Facsimile: 000-000-0000
---------------
TOTAL: $500,000,000.00
SCHEDULE 2.03(A)
LOAN TYPE: A BORROWING NOTICE (PURSUANT AND SUBJECT TO PREPAYMENT NOTICE (PURSUANT TO SECTION 2.10) MUST BE GIVEN
SECTION 2.03) OR AN INTEREST ELECTION (PURSUANT NOT LATER THAN:
TO SECTION 2.07) MUST BE GIVEN NOT LATER THAN:
LOANS
Any Eurodollar 11:00 am New York City time three (3) 12:00 pm New York City time three (3) Business Days before
Borrowing Business Days before the date of the the date of prepayment.
proposed Borrowing.
ABR Borrowing 10:00 am New York City time on the day of the 12:00 pm New York City time one (1) Business Day before
proposed Borrowing. the date of prepayment.
SCHEDULE 2.03(B)
AUTHORIZED ACCOUNT NUMBERS & LOCATIONS
Bank: BNP Paribas
Address: 000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Loan Servicing Clearing
ABA: 0000-0000-0
Account Name: AOL LLC
Account Number: 10313000103
Bank: The Bank of Tokyo-Mitsubishi UFJ, Ltd., New York Branch
Address: 1251 Avenue of the Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attn: Loan Operations Dept.
ABA: 0000-0000-0
Account Name: AOL LLC
Account Number: 00000000
SCHEDULE 6.08
UNRESTRICTED SUBSIDIARIES
AOL Canada Inc.
SCHEDULE 8
LIST OF PROPER PERSONS
Name Title
---- -----
Xxxxxxx X. Xxxx Executive Vice President & Chief Financial Officer
Xxxxxxx X. Xxxxxx Vice President & Assistant Treasurer
Xxxxxx X. Xxxxxxxx Vice President & Assistant Treasurer
EXHIBIT A
FORM OF
ASSIGNMENT AND ACCEPTANCE
Reference is made to the Three-Year Credit Agreement (as amended,
supplemented or otherwise modified from time to time, the "Credit Agreement")
dated as of April 13, 2006, among TW AOL HOLDINGS INC., a Virginia corporation
("TW AOL Holdco"), AOL HOLDINGS LLC, a Delaware limited liability company
("Holdco"), AOL LLC, a Delaware limited liability company ("AOL LLC"), the
several banks and other financial institutions from time to time parties to this
Agreement (the "Lenders"), and BNP PARIBAS and THE BANK OF TOKYO-MITSUBISHI UFJ,
LTD., NEW YORK BRANCH, as co-administrative agents (collectively, in such
capacity, the "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 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 hereto or thereto.
3. The Assignee (a) represents and warrants that it is legally authorized
to enter into this Assignment and Acceptance; (b) confirms that it has received
a copy of the 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 hereto or thereto; (d) appoints
and authorizes the Administrative Agent to take such action as agent on its
2
behalf and to exercise such powers and discretion under the Credit Agreement and
other Credit Documents or any other instrument or document furnished pursuant
hereto or thereto as are delegated to the Administrative Agent by the terms
thereof, together with such powers as are incidental thereto; and (e) agrees
that it will be bound by the provisions of the 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 Administrative Agent for acceptance by it and recording by the
Administrative Agent 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).
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,
relinquish its rights and be released from its obligations under the Credit
Agreement.
7. This Assignment and Acceptance shall be governed by and construed in
accordance with the laws of the State of New York.
IN WITNESS WHEREOF, the parties hereto have caused this Assignment
and Acceptance to be executed as of the date first above written by their
respective duly authorized officers on Schedule 1 hereto.
Schedule 1
to Assignment and Acceptance with respect to the
Three-Year Credit Agreement, dated as of April 13, 2006,
among TW AOL HOLDINGS INC., a Virginia corporation ("TW AOL Holdco"), AOL
HOLDINGS LLC, a Delaware limited liability company ("Holdco"), AOL LLC, a
Delaware limited liability company ("AOL LLC"), the several banks and other
financial institutions from time to time parties to this Agreement (the
"Lenders"), and BNP PARIBAS and THE BANK OF TOKYO-MITSUBISHI UFJ, LTD.,
NEW YORK BRANCH, as co-administrative agents (collectively, in such
capacity, the "Administrative Agent")
Name of Assignor: _______________________
Name of Assignee: _______________________
Effective Date of Assignment: _________________
Amount of Loans
$__________________
[Name of Assignee] [Name of Assignor]
By:______________________________ By:_____________________________
Title: Title:
Accepted for Recordation in the Register: Required Consents (if any):
BNP PARIBAS, as [AOL LLC]
Co-Administrative Agent
By:______________________________ [By:____________________________
Title: Title:]
Assignment and Acceptance
AOL LLC
Three-Year Credit Agreement
2
THE BANK OF TOKYO-MITSUBISHI UFJ,
LTD., NEW YORK BRANCH, as
Co-Administrative Agent
By:______________________________
Title:
Assignment and Acceptance
AOL LLC
Three-Year Credit Agreement
EXHIBIT B
FORM OF GUARANTEE
GUARANTEE, dated as of April 13, 2006, made by [SUBSIDIARY
GUARANTOR,] [TIME WARNER,] (each, a "Guarantor", and collectively, the
"Guarantors"), in favor of BNP PARIBAS and THE BANK OF TOKYO-MITSUBISHI UFJ,
LTD., NEW YORK BRANCH, as co-administrative agents (collectively, in such
capacity, the "Administrative Agent") for the lenders (the "Lenders") parties to
the Three-Year Credit Agreement (as amended, supplemented or otherwise modified
from time to time, the "Credit Agreement") dated as of April 13, 2006, among TW
AOL HOLDINGS INC., a Virginia corporation ("TW AOL Holdco"), AOL HOLDINGS LLC, a
Delaware limited liability company ("Holdco"), AOL LLC, a Delaware limited
liability company ("AOL LLC"), 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 a Subsidiary of the Borrower [an
affiliate of the Borrower] 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. Guarantees. (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, indorsees,
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, any Guarantor, any
other guarantor or any other Person or received or collected by the
Administrative Agent or any Lender from the Borrower, any Guarantor, 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 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 and the Commitments are terminated.
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 any 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 any 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 any 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 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(d), 3.06 and 3.10 on any date other than the
Closing Date) 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, 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 date of each borrowing by the Borrower
under the Credit Agreement on and as of such date of borrowing 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 any 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.
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
Sections 9.02(b) or 9.15 of the Credit Agreement; provided that, if any
Subsidiary Guarantor is designated as an Unrestricted Subsidiary (or otherwise
becomes an Unrestricted Subsidiary) pursuant to Section 6.08 of the Credit
Agreement then the Guarantee shall be automatically released with respect to
such Subsidiary Guarantor without any further action; and provided, further,
that if the event specified in Section 9.15 of the Credit Agreement occurs then
the Time Warner Guarantee shall be automatically released without any further
action.
[25. Additional Guarantors. Each Subsidiary of the Borrower that is
required to become a party to this Guarantee pursuant to Section 5.10 of the
Credit Agreement shall become a Guarantor for all purposes of this Guarantee
upon the execution and delivery by such Subsidiary of an Assumption Agreement in
the form of Annex I hereto.]
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.
[SUBSIDIARY GUARANTOR]
By: ____________________________
Name:
Title:
Guarantee
AOL LLC
Three-Year Credit Agreement
SCHEDULE 1
Address for Notices
Annex 1 to Guarantee
ASSUMPTION AGREEMENT, dated as of ________________, 200_, made by
______________________________ (the "Additional Guarantor"), in favor of BNP
PARIBAS and THE BANK OF TOKYO-MITSUBISHI UFJ, LTD., NEW YORK BRANCH, as
co-administrative agents (collectively, in such capacity, the "Administrative
Agent"), for the lenders (the "Lenders") parties to the Three-Year Credit
Agreement (as amended, supplemented or otherwise modified from time to time, the
"Credit Agreement") dated as of April 13, 2006, among TW AOL HOLDINGS INC., a
Virginia corporation ("TW AOL Holdco"), AOL HOLDINGS LLC, a Delaware limited
liability company ("Holdco"), AOL LLC, a Delaware limited liability company
("AOL LLC"), the Lenders and the Administrative Agent. All capitalized terms not
defined herein shall have the meaning ascribed to them in such Credit Agreement.
WITNESSETH:
WHEREAS, in connection with the Credit Agreement, certain
[subsidiaries] [affiliates] of the Borrower (other than the Additional
Guarantor) have entered into the Guarantee;
WHEREAS, the Credit Agreement requires the Additional Guarantor to
become a party to the Guarantee; and
WHEREAS, the Additional Guarantor has agreed to execute and deliver
this Assumption Agreement in order to become a party to the Guarantee;
NOW, THEREFORE, IT IS AGREED:
1. Guarantee. By executing and delivering this Assumption Agreement,
the Additional Guarantor, as provided in Section 25 of the Guarantee, hereby
becomes a party to the Guarantee as a Guarantor thereunder with the same force
and effect as if originally named therein as a Guarantor and, without limiting
the generality of the foregoing, hereby expressly assumes all obligations and
liabilities of a Guarantor thereunder. The information set forth in Annex 1-A
hereto is hereby added to the information set forth in Schedule 1 to the
Guarantee. The Additional Guarantor hereby represents and warrants that each of
the representations and warranties contained in Section 9 of the Guarantee is
true and correct on and as the date hereof (after giving effect to this
Assumption Agreement) as if made on and as of such date.
2. GOVERNING LAW. THIS ASSUMPTION AGREEMENT SHALL BE GOVERNED BY,
AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW
YORK.
IN WITNESS WHEREOF, the undersigned has caused this Assumption
Agreement to be duly executed and delivered as of the date first above written.
[ADDITIONAL GUARANTOR]
By:___________________________
Name:
Title:
2
Annex 1-A to
Assumption Agreement
Supplement to Schedule 1
