EXHIBIT 99.1
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CREDIT AGREEMENT
Dated as of
July 8, 2002
Among
AOL TIME WARNER INC.,
TIME WARNER ENTERTAINMENT COMPANY, L.P.,
TIME WARNER ENTERTAINMENT - ADVANCE/▇▇▇▇▇▇▇▇ PARTNERSHIP,
AOL TIME WARNER FINANCE IRELAND,
as Borrowers,
The Lenders Party Hereto,
JPMORGAN CHASE BANK,
as Administrative Agent,
BANK OF AMERICA, N.A. AND CITIBANK, N.A.,
as Co-Syndication Agents,
and
ABN AMRO BANK N.V. AND BNP PARIBAS,
as Co-Documentation Agents
$6,000,000,000 FIVE-YEAR REVOLVING CREDIT FACILITY
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▇.▇. ▇▇▇▇▇▇ SECURITIES INC. AND BANC OF AMERICA SECURITIES LLC,
as Joint-Lead Arrangers and Joint Bookrunners
TABLE OF CONTENTS
Page
ARTICLE I Definitions..........................................................1
SECTION 1.01. Defined Terms...........................................1
SECTION 1.02. Classification of Loans and Borrowings.................24
SECTION 1.03. Terms Generally........................................24
SECTION 1.04. Accounting Terms; GAAP.................................25
ARTICLE II The Credits........................................................25
SECTION 2.01. Commitments............................................25
SECTION 2.02. Loans and Borrowings...................................26
SECTION 2.03. Requests for Revolving Borrowings......................27
SECTION 2.04. Swingline Loans........................................28
SECTION 2.05. Letters of Credit......................................29
SECTION 2.06. Funding of Borrowings..................................33
SECTION 2.07. Interest Elections.....................................33
SECTION 2.08. Termination and Reduction of Commitments...............35
SECTION 2.09. Repayment of Loans; Evidence of Debt...................35
SECTION 2.10. Prepayment of Loans....................................36
SECTION 2.11. Fees...................................................36
SECTION 2.12. Interest...............................................37
SECTION 2.13. Alternate Rate of Interest.............................38
SECTION 2.14. Increased Costs........................................39
SECTION 2.15. Break Funding Payments.................................40
SECTION 2.16. Taxes..................................................41
SECTION 2.17. Payments Generally; Pro Rata Treatment; Sharing
of Setoffs.............................................42
SECTION 2.18. Mitigation Obligations; Replacement of Lenders.........44
SECTION 2.19. Prepayments Required Due to Currency Fluctuation.......44
SECTION 2.20. Adoption of the Euro...................................45
SECTION 2.21. Termination of Certain Borrowers.......................45
ARTICLE III Representations and Warranties....................................46
SECTION 3.01. Organization; Powers...................................46
SECTION 3.02. Authorization; Enforceability..........................46
SECTION 3.03. Governmental Approvals; No Conflicts...................46
SECTION 3.04. Financial Condition; No Material Adverse Change........46
SECTION 3.05. Properties.............................................47
SECTION 3.06. Litigation and Environmental Matters...................47
SECTION 3.07. Compliance with Laws and Agreements....................47
SECTION 3.08. Government Regulation..................................48
SECTION 3.09. Taxes..................................................48
SECTION 3.10. ERISA..................................................48
SECTION 3.11. Disclosure.............................................48
ARTICLE IV Conditions.........................................................49
SECTION 4.01. Effective Date.........................................49
SECTION 4.02. Each Credit Event......................................50
ARTICLE V Affirmative Covenants...............................................50
SECTION 5.01. Financial Statements and Other Information.............50
SECTION 5.02. Notices of Material Events.............................52
SECTION 5.03. Existence; Conduct of Business.........................52
SECTION 5.04. Payment of Obligations.................................52
SECTION 5.05. Maintenance of Properties; Insurance...................53
SECTION 5.06. Books and Records; Inspection Rights...................53
SECTION 5.07. Compliance with Laws...................................53
SECTION 5.08. Use of Proceeds........................................53
SECTION 5.09. Fiscal Periods; Accounting.............................53
ARTICLE VI Negative Covenants.................................................53
SECTION 6.01. Financial Covenants....................................54
SECTION 6.02. Indebtedness...........................................54
SECTION 6.03. Liens..................................................55
SECTION 6.04. Mergers, Etc...........................................56
SECTION 6.05. Investments............................................56
SECTION 6.06. Restricted Payments....................................56
SECTION 6.07. Transactions with Affiliates...........................56
SECTION 6.08. Unrestricted Subsidiaries..............................57
ARTICLE VII Events of Default.................................................57
ARTICLE VIII The Agents.......................................................60
ARTICLE IX Miscellaneous......................................................62
SECTION 9.01. Notices................................................62
SECTION 9.02. Waivers; Amendments....................................63
SECTION 9.03. Expenses; Indemnity; Damage Waiver.....................64
SECTION 9.04. Successors and Assigns.................................65
SECTION 9.05. Survival...............................................67
SECTION 9.06. Counterparts; Integration; Effectiveness...............68
SECTION 9.07. Severability...........................................68
SECTION 9.08. Right of Setoff........................................68
SECTION 9.09. Governing Law; Jurisdiction; Consent to Service
of Process.............................................68
SECTION 9.10. WAIVER OF JURY TRIAL...................................69
SECTION 9.11. Headings...............................................69
SECTION 9.12. Confidentiality........................................69
SECTION 9.13. Acknowledgements.......................................70
SECTION 9.14. Judgment Currency......................................70
SECTION 9.15. Loans to Borrowers Separate Credit Facility............71
SCHEDULES:
Schedule 1.01 - Mandatory Cost Rate
Schedule 2.01 - Commitments
Schedule 2.03(A) - Borrowing Notice/Interest Election Notice/Prepayment Notice
Schedule 2.03(B) - Authorized Account Numbers & Locations
Schedule 2.05 - Existing Letters of Credit
Schedule 6.08 - Unrestricted Subsidiaries
Schedule 8 - List of Proper Persons
EXHIBITS:
Exhibit A - Form of Assignment and Acceptance
Exhibit B-1 - Form of Primary Guarantee
Exhibit B-2 - Form of TWE Partner Guarantee
Exhibit B-3 - Form of Paragon Guarantee
Exhibit B-4 - Form of Paragon Partner Guarantee
FIVE-YEAR CREDIT AGREEMENT (as amended, supplemented or otherwise modified
from time to time, this "Agreement") dated as of July 8, 2002, among AOL TIME
WARNER INC., a Delaware corporation ("AOLTW"), TIME WARNER ENTERTAINMENT
COMPANY, L.P., a Delaware limited partnership ("TWE"), TIME WARNER ENTERTAINMENT
- ADVANCE/▇▇▇▇▇▇▇▇ PARTNERSHIP, a New York general partnership ("TWEAN"), and
AOL TIME WARNER FINANCE IRELAND, a corporation of the Republic of Ireland
("AOLTWFI"), the several banks and other financial institutions from time to
time parties to this Agreement (the "Lenders"), BANK OF AMERICA, N.A. and
CITIBANK, N.A., as co-syndication agents (in such capacity, the "Co-Syndication
Agents"), ABN AMRO BANK N.V. and BNP PARIBAS, as co-documentation agents (in
such capacity, the "Co-Documentation Agents") and JPMORGAN CHASE BANK, as
administrative agent (in such capacity, the "Administrative Agent").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, the Borrowers have requested the Lenders to make loans and other
extensions of credit to them in an aggregate amount of up to $6,000,000,000 as
more particularly described herein;
WHEREAS, the Lenders are willing to make such loans and other extensions of
credit 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 whether
such Loan, or the Loans comprising such Borrowing, are bearing interest at a
rate determined by reference to the Alternate Base Rate.
"Adjusted Financial Statements" means, for any period, (a) the balance
sheet of AOLTW and its Restricted Subsidiaries (treating Unrestricted
Subsidiaries as equity investments of AOLTW to the extent that such Unrestricted
Subsidiaries would not otherwise be treated as equity investments of AOLTW 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 AOLTW to the extent
that such Unrestricted Subsidiaries would not otherwise be treated as equity
investments of AOLTW in accordance with GAAP).
"Adjusted LIBO Rate" means, with respect to any Eurocurrency Borrowing for
any Interest Period, an interest rate per annum (rounded upwards, if necessary,
to the next Basis Point) equal to (a) the LIBO Rate for such Interest Period
multiplied by (b) the Statutory Reserve Rate.
"Administrative Agent" means JPMorgan Chase Bank, together with its
affiliates, as an arranger of the Commitments and as administrative agent for
the Lenders hereunder, together with any of its successors pursuant to Article
VIII.
"Administrative Questionnaire" means, with respect to each Lender, an
Administrative Questionnaire in a form supplied by the Administrative Agent.
"Affiliate" means, with respect to a specified Person, another Person that
directly, or indirectly through one or more intermediaries, Controls or is
Controlled by or is under common Control with the Person specified; provided,
that two or more Persons shall not be deemed Affiliates because an individual is
a director and/or officer of each such Person.
"Agents" means the Co-Syndication Agents, the Co-Documentation 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.
"America Online" means America Online, Inc., a Delaware corporation.
"AOLTW" has the meaning assigned to such term in the preamble hereto.
"AOLTWFI" has the meaning assigned to such term in the preamble hereto.
"Applicable Percentage" means, with respect to any Lender, the percentage
of the sum total of the Commitments which is represented by such Lender's
Commitment. If all the Commitments have terminated or expired, the Applicable
Percentages shall be determined based upon the Commitments most recently in
effect, giving effect to any assignments.
"Applicable Rate" means, for any day, with respect to the Facility Fee
payable hereunder the applicable rate per annum set forth below expressed in
Basis Points under the caption "Facility Fee Rate" based upon the senior
unsecured long-term debt credit rating assigned by Moody's and S&P,
respectively, applicable on such date to AOLTW, and with respect to any Loan
(other than an ABR Loan), the applicable rate per annum set forth below
expressed in Basis Points under the caption "Loan (other than ABR Loans) Spread"
based upon (a) in the case of each Borrower other than TWEAN, 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 (i) in the case of AOLTW or AOLTWFI, AOLTW and (ii) in the case of TWE, TWE:
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Loan (other than
Ratings ABR Loans) Facility Fee
S&P / Moody's Spread Rate
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Category A
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A / A2 36.0 9.0
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Category B
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A- / A3 40.0 10.0
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Category C
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BBB+ / Baa1 50.0 12.5
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Category D
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BBB / Baa2 60.0 15.0
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Category E
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BBB- / Baa3 67.5 20.0
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Category F
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Lower than BBB- /Baa3 95.0 30.0
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and (b) in the case of TWEAN, the Consolidated Leverage Ratio of TWEAN as of the
last day of the fiscal quarter of TWEAN then last ended for which financial
statements for TWEAN have been delivered in accordance with Section 5.01:
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Leverage Ratio Loan (other than ABR
Loans)Spread
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less than or equal to 0.50:1.0 40.0
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greater than 0.50:1.0 but 50.0
less than or equal to 3.50:1.0
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greater than 3.50:1.0 but 60.0
less than or equal to 4.00:1.0
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greater than 4.00:1.0 but 67.5
less than or equal to 4.50:1.0
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greater than 4.50:1.0 95.0
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For purposes of determining the Applicable Rate for AOLTW, AOLTWFI and TWE,
(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 the
applicable Borrower 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 such
Borrower 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, AOLTW 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 ▇.▇. ▇▇▇▇▇▇ Securities Inc. and Banc of America
Securities LLC.
"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 from and including the Effective
Date to but excluding the Commitment Termination Date.
"Basis Point" means 1/100th of 1%.
"Base Rate" means (a) with respect to Dollar denominated Loans, the
Alternative Base Rate, (b) with respect to Pound Sterling denominated Loans, the
Pound Sterling Overnight Rate or Pound Sterling Quoted Rate, and (c) with
respect to Euro denominated Loans, the Euro Overnight Rate or Euro Quoted Rate.
"Board" means the Board of Governors of the Federal Reserve System of the
United States.
"Borrower" means each of AOLTW, TWE, TWEAN and AOLTWFI; provided that such
term shall not include TWE or TWEAN, as applicable, at any time after AOLTW has
elected to terminate the ability of TWE or TWEAN, as the case may be, to borrow
pursuant to Section 2.21.
"Borrowing" means (a) Revolving Loans of the same Type, made, converted or
continued on the same date and, in the case of Eurocurrency Loans or TIBOR
Loans, as to which a single Interest Period is in effect or (b) a Swingline
Loan.
"Borrowing Request" means a request by a 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, (a) when used in connection with a Eurocurrency
Loan, a Base Rate Loan (other than an ABR Loan), the term "Business Day" shall
also exclude any day on which banks are not open for dealings in deposits in the
applicable currency in the London interbank market, (b) when used in connection
with any Loan denominated in Euro, the term "Business Day" shall also exclude
any day on which the TARGET payment system is not open for the settlement of
payment in Euro and (c) when used in connection with any Loan denominated in
Yen, the term "Business Day" shall also exclude any day on which banks are not
open for dealings in deposits in Yen in the interbank market in Tokyo.
"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
Eurocurrency 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 ▇▇▇▇▇'▇ is
at least P-2 or the equivalent thereof or from Fitch 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 and variable rate notes issued by, or guaranteed by, any
industrial or financial company with a short-term commercial paper rating of at
least A-2 or the equivalent thereof by S&P or at least P-2 or the equivalent
thereof by Moody's or at least F-2 or the equivalent thereof by Fitch, and in
each case maturing within six months after the date of acquisition thereof, (d)
securities with maturities of one year or less from the date of acquisition
issued or fully guaranteed by any state, commonwealth or territory of the United
States, by any political subdivision or taxing authority of any such state,
commonwealth or territory or by any foreign government, the securities of which
state, commonwealth, territory, political subdivision, taxing authority or
foreign government (as the case may be) are rated at least A by S&P or A by
Moody's, (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 ▇▇▇▇▇'▇ 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 either (a) a Person or "group" (within the
meaning of Section 13(d) and 14(d) of the Exchange Act) acquiring or having
beneficial ownership (it being understood that a tender of shares or other
equity interests shall not be deemed acquired or giving beneficial ownership
until such shares or other equity interests shall have been accepted for
payment) of securities (or options to purchase securities) having a majority or
more of the ordinary voting power of AOLTW (including options to acquire such
voting power) or (b) persons who are directors of AOLTW as of the date hereof or
persons designated or approved by such directors ceasing to constitute a
majority of the board of directors of AOLTW.
"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.
"Class" when used in reference to any Loan or Borrowing, refers to whether
such Loan, or the Loans comprising such Borrowing, are Revolving Loans or
Swingline Loans.
"Co-Documentation Agents" has the meaning set forth in the preamble hereto.
"Co-Syndication Agents" has the meaning set forth in the preamble hereto.
"Code" means the Internal Revenue Code of 1986, as amended from time to
time.
"Commitment" means, with respect to each Lender, the commitment of such
Lender to make Revolving Loans, to acquire participations in Yen Loans and/or to
acquire participations in Swingline Loans and Letters of Credit hereunder,
expressed as an amount representing the maximum aggregate permitted amount of
such Lender's Revolving Credit Exposure hereunder, as such commitment may be (a)
reduced from time to time pursuant to Section 2.08 or Section 2.18 and (b)
reduced or increased from time to time pursuant to assignments by or to such
Lender pursuant to Section 9.04. The initial amount of each Lender's Commitment
is set forth on Schedule 2.01, or in the Assignment and Acceptance pursuant to
which such Lender shall have assumed its Commitment, as applicable.
"Commitment Termination Date" means the earlier of (a) the fifth
anniversary of the Effective Date; provided that if such day is not a Business
Day, then the immediately preceding Business Day and (b) the date on which the
Commitments shall terminate in their entirety in accordance with the provisions
of this Agreement.
"Commitment Utilization Percentage" means on any day the percentage
equivalent to a fraction (a) the numerator of which is the sum of the aggregate
outstanding Revolving Credit Exposure of the Lenders under both of the
Facilities (as modified or replaced from time to time) then in effect in the
aggregate, and (b) the denominator of which is the sum of the aggregate amount
of the Commitments of the Lenders then in effect under both of the Facilities
(as modified or replaced from time to time) then in effect in the aggregate;
provided that on any day subsequent to the Initial Maturity Date if AOLTW has
delivered a Term Out Notice pursuant to Section 2.09(f) of the 364-Day Credit
Agreement, the aggregate amount of the Commitments of the Lenders under the
364-Day Credit Agreement for purposes of this definition shall be the aggregate
amount of the outstanding Revolving Credit Exposure of the Lenders thereunder.
"Companies" means each of the Credit Parties and their respective
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 AOLTW (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 for any Person, the
Consolidated Net Income of such Person for such period plus, without duplication
and to the extent reflected as a charge in the statement of such Consolidated
Net Income for such period, the sum of (a) income tax expense, (b) interest
expense, amortization or writeoff of debt discount and debt issuance costs and
commissions, discounts and other fees and charges associated with Indebtedness
(including the 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), and (f) minority interest expense
in respect of preferred stock of Subsidiaries of such Person, 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 of
four consecutive fiscal quarters for any Person, the ratio of (a) Consolidated
Total Debt of such Person and its Restricted Subsidiaries on such day to (b)
Consolidated EBITDA of such Person and its Restricted Subsidiaries for such
period.
"Consolidated Net Income" means, for any period for any Person, the
consolidated net income (or loss) of such Person and its consolidated
Subsidiaries, determined on a consolidated basis in accordance with GAAP;
provided that there shall be excluded, without duplication (a) the income (or
deficit) of any Person accrued prior to the date it becomes a Subsidiary of such
Person or is merged into or consolidated with such Person or any of its
Subsidiaries or that such other Person's assets are acquired by such Person or
any of its Subsidiaries, (b) the income (or deficit) of any Person (other than
(i) in the case of AOLTW, TWE or TWEAN, a Restricted Subsidiary and (ii) in the
case of any other Person, a Subsidiary of such Person) in which such Person or
any of its Subsidiaries has an ownership interest, except to the extent that any
such income is actually received by such Person (or (i) in the case of AOLTW,
TWE or TWEAN, its Restricted Subsidiary and (ii) in the case of any other
Person, its Subsidiary) in the form of dividends or similar distributions and
(c) the undistributed earnings of any Subsidiary of such Person 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
such Person shall not be excluded by reason of this clause (c) so long as such
Subsidiary guarantees the Obligations of such Person.
"Consolidated Net Worth" means at any date, all amounts that would, in
conformity with GAAP, be included on a consolidated balance sheet of AOLTW and
its Subsidiaries under stockholders' equity at such date.
"Consolidated Total Assets" means at any date, all amounts that would, in
conformity with GAAP, be included on a consolidated balance sheet of AOLTW 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, (a) with respect to AOLTW,
the aggregate principal amount of Indebtedness of AOLTW and its Restricted
Subsidiaries minus (i) 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 AOLTW or the proceeds of options in respect of such equity
securities, (ii) the aggregate amount of any Stock Option Loans, (iii) the
aggregate principal amount of Film Financings and (iv) the aggregate amount of
cash and Cash Equivalents held by AOLTW or any of its Restricted Subsidiaries in
excess of $200,000,000 and (b) for purposes of Section 6.01(c) and (d) and (in
the case of TWEAN) the definition of Applicable Rate, the aggregate principal
amount of Indebtedness of TWE or TWEAN, as the case may be, and its Restricted
Subsidiaries minus (i) 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 TWE or TWEAN, as the case may be, or the proceeds of options in
respect of such equity securities, (ii) the aggregate principal amount of Film
Financings, and (iii) the aggregate amount of cash and Cash Equivalents held by
TWE or TWEAN, as the case may be, and its respective Restricted Subsidiaries,
all determined on a consolidated basis in accordance with GAAP.
"Control" means the possession, directly or indirectly, of the power to
direct or cause the direction of the management or policies of a Person, whether
through the ability to exercise voting power, by contract or otherwise.
"Controlling" and "Controlled" have meanings correlative thereto.
"Copyright Liens" means any Liens granted by any 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 such
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 such Borrower or Subsidiary to a special purpose Subsidiary of
such Borrower or Subsidiary organized for the purpose of monetizing such rights
to future payments, provided that such Liens (a) are granted directly or
indirectly for the benefit of the special purpose Subsidiary and/or the Persons
who purchase such contractual rights to future payments from such special
purpose Subsidiary and (b) extend only to the copyrights for the movies or other
programming subject to such contracts for the purpose of permitting the
completion, distribution and exhibition of such movies or other programming.
"Credit Documents" means this Agreement, each Guarantee and each Note.
"Credit Parties" means the Borrowers and the Guarantors; and "Credit Party"
means any of them.
"Currency" means Dollars or any Optional Currency.
"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 or issue
any Letter of Credit required to be made or issued by it in accordance with the
terms and conditions of this Agreement.
"Dollar Equivalent" means, on any date of determination, (a) with respect
to any amount denominated in Dollars, such amount, and (b) with respect to an
amount denominated in any Optional Currency, the equivalent in Dollars of such
amount determined by the Administrative Agent in accordance with normal banking
industry practice using the Exchange Rate on the date of determination of such
equivalent. In making any determination of the Dollar Equivalent (for purposes
of calculating the amount of Loans to be borrowed from the respective Lenders on
any date or for any other purpose), the Administrative Agent shall use the
relevant Exchange Rate in effect on the date on which the applicable Borrower
delivers a Borrowing Request (which, in accordance with Section 2.03, may be
telephonic) for Loans or on such other date upon which a Dollar Equivalent is
required to be determined pursuant to the provisions of this Agreement. As
appropriate, amounts specified herein as amounts in Dollars shall be or include
any relevant Dollar Equivalent amount.
"Dollars" or "$" refers to lawful money of the United States.
"Effective Date" means the date on which the conditions specified in
Section 4.01 are satisfied (or waived in accordance with Section 9.02).
"EMU" means the Economic and Monetary Union as contemplated in the Treaty.
"EMU Legislation" means the legislative measures of the European Council
(including without limitation the European Council regulations) for the
introduction of, changeover to or operation of the Euro in one or more member
states.
"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 any 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 any Borrower, any trade or
business (whether or not incorporated) that, together with such 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 any Credit Party 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 any Credit Party or any ERISA Affiliate from the
PBGC or a Plan administrator of any notice relating to an intention to terminate
any Plan or Plans or to appoint a trustee to administer any Plan; (f) the
incurrence by any Credit Party 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 any Credit Party 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 a Credit Party.
"Euro" and "(euro)" means the single currency of Participating Member
States introduced in accordance with the provision of Article 123 of the Treaty
and, in respect of all payments to be made under this Agreement in Euro, means
immediately available, freely transferable funds in such currency.
"Eurocurrency," when used in reference to any Loan or Borrowing, refers to
whether such Loan, or the Loans comprising such Borrowing, are bearing interest
at a rate determined by reference to the Adjusted LIBO Rate.
"Euro Overnight Rate" means, for any day, the sum of (a) the average of the
rates per annum quoted at approximately 11:00 a.m., London time, to leading
banks in the European interbank market by the Reference Banks for the offering
of overnight deposits in Euro plus (b) the Applicable Rate. The Administrative
Agent shall determine the Euro Overnight Rate by obtaining quotes from the
Reference Banks, and if any such Reference Bank fails to timely provide such
quote for any day, then the Euro Overnight Rate for such day shall be determined
by the average based on the quotes from the Reference Banks that provided quotes
on that day.
"Euro Quoted Rate" means, for any day for any Swingline Loan, the rate per
annum quoted by the Swingline Lender to the applicable Borrower in response to a
Borrowing Request for a Swingline Borrowing as its overnight offer rate in
effect for such Swingline Loan at its principal office in London, plus the
Applicable 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.
"Exchange Rate" means, with respect to any Optional Currency on a
particular date, the rate at which such Optional Currency may be exchanged into
Dollars, as set forth at 11:00 a.m. London time on such date on the applicable
Reuters Screen page with respect to such Optional Currency. In the event that
such rate does not appear on the applicable Reuters currency page, the Exchange
Rate with respect to such Optional Currency shall be determined by reference to
such other publicly available service for displaying exchange rates as may be
agreed upon by the Administrative Agent and AOLTW or, in the absence of such
agreement, such Exchange Rate shall instead be the spot rate of exchange of the
Administrative Agent in the London interbank or other market where its foreign
currency exchange operations in respect of such Optional Currency are then being
conducted, at or about 11:00 a.m., London time, at such date for the purchase of
Dollars with such Optional Currency, for delivery two Business Days later;
provided, however, that if at the time of any such determination, for any
reason, no such spot rate is being quoted, the Administrative Agent may use any
reasonable method it deems appropriate to determine such rate, and such
determination shall be conclusive absent manifest error.
"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 AOLTW under Section 2.18(b)), any withholding tax (i) that 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).
"Existing Credit Agreements" means (a) the Credit Agreement, dated as of
November 10, 1997, among Time Warner, TWCI, TWE, TBS, TWEAN, and TWIC and the
lenders referred to therein and (b) the Credit Agreement, dated as of April 6,
2001, among AOLTW and the lenders referred to therein.
"Facilities" means the credit facilities extended pursuant to this
Agreement and the 364-Day Credit Agreement.
"Facility Fee" has the meaning assigned to such term in Section 2.11(a).
"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.
"Film Financing" means, without duplication, monetary obligations arising
out of transactions in which so-called tax-based financing groups or other
third-party investors provide financing for the acquisition, production or
distribution of motion pictures, television programs, sound recordings or books
or rights with respect thereto in exchange, in part, for certain tax or other
benefits which are derived from such motion pictures, television programs, sound
recordings, books or rights; provided that no such monetary obligations shall
have, directly or indirectly, recourse (including by way of setoff) to any
Borrower or any Restricted Subsidiary or any of its assets other than to the
profits or distribution rights related to such motion pictures, television
programs, sound recordings, books or rights and other than to a Subsidiary of
TWE or TBS substantially all of the assets of which consist of the motion
pictures, television programs, sound recordings, books or rights which are the
subject of such transaction and related cash and Cash Equivalents.
"Financial Officer" means, with respect to any Person, the chief financial
officer, principal accounting officer, treasurer or controller of such Person.
"Fitch" means Fitch, Inc.
"Foreign Lender" means any Lender that is organized under the laws of a
jurisdiction other than that in which the applicable Borrower is located. For
purposes of this definition, the United States, each State thereof and the
District of Columbia shall be deemed to constitute a single jurisdiction.
"Franchise" means, with respect to any Person, a franchise, license,
authorization or right to construct, own, operate, manage, promote, extend or
otherwise utilize any cable television distribution system operated or to be
operated by such Person or any of its Subsidiaries granted by any Governmental
Authority, but shall not include any such franchise, license, authorization or
right that is incidentally required for the purpose of installing, constructing
or extending a cable television system.
"GAAP" means generally accepted accounting principles in the United States.
"Governmental Authority" means the government of the United States, any
other nation or any political subdivision thereof, whether state or local, and
any agency, authority, instrumentality, regulatory body, court, central bank or
other entity exercising executive, legislative, judicial, taxing, regulatory or
administrative powers or functions of or pertaining to government.
"Guarantee 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.
"Guaranteed Percentage" means (a) with respect to any TWE Partner
Guarantor, the percentage of the Obligations of TWE hereunder being guaranteed
by such TWE Partner Guarantor, with the Guaranteed Percentage of each TWE
Partner Guarantor being as follows: Warner Communications Inc.: 59.27%; American
Television and Communications Corporation: 40.73%; provided that the Guaranteed
Percentage of any TWE Partner Guarantor may be changed by TWE from time to time
by written notice to the Administrative Agent in connection with the merger or
consolidation of such TWE Partner Guarantor; provided further that at all times
the sum of the Guaranteed Percentages of all TWE Partner Guarantors shall equal
100% and (b) with respect to any Paragon Partner Guarantor, the percentage of
the obligations of Paragon pursuant to the Paragon Guarantee being guaranteed by
such Paragon Partner Guarantor, with the Guaranteed Percentage of each Paragon
Partner Guarantor being the percentage specified for such Paragon Partner
Guarantor opposite its name on Schedule 1 to the Paragon Partner Guarantee;
provided that the Guaranteed Percentage of any Paragon Partner Guarantor may be
changed by TWEAN from time to time by written notice to the Administrative Agent
in connection with the merger or consolidation of such Paragon Partner
Guarantor; provided further that at all times the sum of the Guaranteed
Percentages of all Paragon Partner Guarantors shall equal 100%.
"Guarantees" means, collectively, the Primary Guarantee, the TWE Partner
Guarantee, the Paragon Guarantee and the Paragon Partner Guarantee.
"Guarantors" means (a) with respect to the Obligations of AOLTW, (i)
directly, America Online and Time Warner, (ii) indirectly, TBS and TWCI who
shall guarantee the guarantee obligations of Time Warner and (iii) any other
Person that becomes and remains a party to the Primary Guarantee after the
Effective Date, (b) with respect to the Obligations of AOLTWFI, AOLTW and the
Guarantors listed in clause (a) above, (c) with respect to the Obligations of
TWE, the TWE Partner Guarantors, and (d) with respect to the Obligations of
TWEAN, (i) directly, Paragon and (ii) indirectly, the Paragon Partner
Guarantors, who shall guarantee the guarantee obligations of Paragon.
"Hazardous Materials" means all explosive or radioactive substances or
wastes and all hazardous or toxic substances, wastes or other pollutants,
including petroleum or petroleum distillates, asbestos or asbestos containing
materials, polychlorinated biphenyls, radon gas, infectious or medical wastes
and all other substances or wastes of any nature regulated pursuant to any
Environmental Law.
"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
synthetic or 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 a Copyright Lien
or Liens on interests or Investments in Unrestricted Subsidiaries) on property
owned or acquired by such Person, whether or not the Indebtedness secured
thereby has been assumed (but only to the extent of the lesser of the fair
market value of the property subject to such Lien and the amount of such
Indebtedness), (g) all Guarantee Obligations of such Person with respect to
Indebtedness of others (except to the extent that such Guarantee Obligation
guarantees Indebtedness of a Restricted Subsidiary), (h) all Capital Lease
Obligations of such Person, (i) all obligations, contingent or otherwise, of
such Person as an account party in respect of letters of credit (but only to the
extent of all drafts drawn thereunder) and (j) all obligations, contingent or
otherwise, of such Person in respect of bankers' acceptances. Notwithstanding
the foregoing, Indebtedness shall not include (i) any obligation of such Person
to guarantee performance of, or enter into indemnification agreements with
respect to, obligations, entered into in the ordinary course of business, under
any and all Franchises, leases, performance bonds, franchise bonds and
obligations to reimburse drawings under letters of credit issued in lieu of
performance or franchise bonds, (ii) completion bonds or guarantees or
indemnities of a similar nature issued in the ordinary course of business in
connection with the production of motion pictures and video and television
programming or (iii) 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 a Borrower to convert or
continue a Revolving Borrowing in accordance with Section 2.07.
"Interest Payment Date" means (a) with respect to any Base Rate Loan, the
last day of each March, June, September and December and (b) with respect to any
Eurocurrency Loan or TIBOR Loan, as the case may be, the last day of the
Interest Period applicable to the Borrowing of which such Loan is a part and, in
the case of a Eurocurrency Borrowing or TIBOR Borrowing, as the case may be,
with an Interest Period of more than three months' duration, each day that is
three months, or a whole multiple thereof, after the first day of such Interest
Period and the last day of such Interest Period.
"Interest Period" means with respect to any Eurocurrency Borrowing or TIBOR
Borrowing, as the case may be, 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 applicable Borrower may elect or (b) one month thereafter, if
the applicable 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 date on which such
Borrowing is made and, in the case of a Revolving Borrowing, 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.
"Issuing Bank" means JPMorgan Chase Bank or any Lender or Affiliate of any
Lender designated by AOLTW that agrees to be an Issuing Bank hereunder and any
other bank reasonably acceptable to the Required Lenders and designated as an
Issuing Bank by AOLTW, in its capacity as an issuer of Letters of Credit
hereunder; provided that AOLTWFI only shall be entitled to request an Issuing
Bank that is a bank or credit institution licensed in a member state of the
European Communities to issue a Letter of Credit hereunder. Any Issuing Bank
may, in its discretion, arrange for one or more Letters of Credit to be issued
by Affiliates of the Issuing Bank, in which case the term "Issuing Bank" shall
include any such Affiliate with respect to Letters of Credit issued by such
Affiliate. Any Issuing Bank shall become a party to this Agreement by execution
and delivery of a supplemental signature page to this Agreement. Initially,
JPMorgan Chase Bank, BNP Paribas, Bank of America N.A. ABN AMRO Bank N.V. and
Citibank, N.A. shall be the Issuing Banks.
"LC Disbursement" means a payment made by the Issuing Bank pursuant to a
drawing made on any Letter of Credit.
"LC Exposure" means, at any time, the sum of (a) the aggregate undrawn
amount of all outstanding Letters of Credit at such time plus (b) the aggregate
amount of all LC Disbursements that have not yet been reimbursed by or on behalf
of any Borrower at such time. The LC Exposure of any Lender at any time shall be
its Applicable Percentage of the total LC Exposure at such time.
"L/C Sublimit" means $500,000,000.
"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. Unless the context otherwise requires, the term
"Lenders" includes the Swingline Lender.
"Letter of Credit" means any letter of credit issued pursuant to Section
2.05 of this Agreement.
"LIBO Rate" means, (a) with respect to any Eurocurrency Borrowing
denominated in Pounds or Dollars for any Interest Period, the rate appearing on
Page 3740 or Page 3750, as the case may be, of the Telerate Service (or on any
successor or substitute page of such Service, or any successor to or substitute
for such Service, providing rate quotations comparable to those currently
provided on such page of such Service, as determined by the Administrative Agent
from time to time for purposes of providing quotations of interest rates
applicable to Pound or Dollar deposits (as applicable) in the London interbank
market) at approximately 11:00 a.m., London time, two Business Days prior to the
commencement of such Interest Period (or, in the case of Pounds, on the first
day of such Interest Period), as the rate for Pound or Dollar deposits, as
applicable, with a maturity comparable to such Interest Period and (b) with
respect to any Eurocurrency Borrowing denominated in Euro for any Interest
Period, the rate appearing on Page 248 of the Telerate Service (it being
understood that this rate is the Euro interbank offered rate (known as the
"EURIBOR Rate") sponsored by the Banking Federation of the European Union (known
as the "FBE") and the Financial Markets Association (known as the "ACI")) at
approximately 10:00 a.m., London time, two Business Days prior to the
commencement of such Interest Period, as the rate for deposits in Euro 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
Eurocurrency 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 or the applicable Optional
Currency approximately equal in principal amount to the Dollar Equivalent of
$5,000,000 and for a maturity comparable to such Interest Period are offered
with respect to any Eurocurrency Borrowing to the principal London offices of
the Reference Banks (or, if any Reference Bank does not at the time maintain a
London office, the principal London office of any Affiliate of such Reference
Bank) in immediately available funds in the London interbank market at
approximately 11:00 a.m., London time, two Business Days prior to the
commencement of such Interest Period (or, in the case of Pounds, on the first
day of such Interest Period) and; provided, however, that, if only two Reference
Banks notify the Administrative Agent of the rates offered to such Reference
Banks (or any Affiliates of such Reference Lenders) as aforesaid, the LIBO Rate
with respect to such Eurocurrency Borrowing shall be equal to the arithmetic
average of the rates so offered to such Reference Banks (or any such
Affiliates).
"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 (including Swingline Loans) made by the Lenders to
any Borrower pursuant to this Agreement.
"Local Time" means, for payments and disbursements (a) in respect of
Dollars, New York time, (b) in respect of Euros or Pounds, London time and (c)
in respect of Yen, Tokyo time.
"Mandatory Cost" means, with respect to any Lender, the cost imputed to
such Lender of compliance with the requirements of the Bank of England or the
Financial Services Authority during the relevant Interest Period, determined in
accordance with Schedule 1.01.
"Material Adverse Effect" means a material adverse effect on (a) the
financial condition, business, results of operations, properties or liabilities
of any Borrower and its 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 or (c) the
rights of or benefits available to the Lenders under any Credit Document.
"Material Indebtedness" means Indebtedness (other than the Loans and
Letters of Credit), of any one or more of the Borrowers and the Restricted
Subsidiaries thereof in an aggregate principal amount exceeding $200,000,000.
"Material Subsidiary" of any Person means, at any date, each Subsidiary of
such Person which, either alone or together with the Subsidiaries of such
Subsidiary, meets any of the following conditions:
(a) as of the last day of such Person's most recently ended fiscal quarter
for which financial statements have been filed with the SEC the investments of
such Person 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 such Person and its consolidated Subsidiaries;
(b) for the period of four consecutive fiscal quarters ended on the last
day of such Person's most recently ended fiscal quarter for which financial
statements have been filed with the SEC, the equity of such Person and its
Subsidiaries in the revenues from continuing operations of the Subsidiary in
question exceeds 10% of the revenues from continuing operations of such Person
and its consolidated Subsidiaries; or
(c) for the period of four consecutive fiscal quarters ended on the last
day of such Person's most recently ended fiscal quarter for which financial
statements have been filed with the SEC, the equity of such Person and its
Subsidiaries in the Consolidated EBITDA of the Subsidiary in question exceeds
10% of the Consolidated EBITDA of such Person.
"Maturity Date" means the fifth anniversary of the Effective Date.
"Moody's" means ▇▇▇▇▇'▇ Investors Service, Inc.
"Multiemployer Plan" means a multiemployer plan as defined in Section
4001(a)(3) of ERISA.
"National Currency Unit" means the unit of currency (other than the Euro)
of a Participating Member State.
"Note" means any promissory note evidencing Loans issued pursuant to
Section 2.09(e).
"Obligations" has the meaning assigned to such term in the Guarantees.
"Officer's Certificate" means, with respect to any Person, a certificate
executed by the Chief Financial Officer, the Treasurer or the Controller of such
Person or such other officer of such Person reasonably acceptable to the
Administrative Agent and designated as such in writing to the Administrative
Agent by such Person.
"Optional Currency" means, at any time, Pounds, Euros and Yen, so long as
such currency is freely traded and convertible into Dollars in the United States
market and a Dollar Equivalent thereof can be calculated.
"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.
"Paragon" means Paragon Communications, a Colorado general partnership.
"Paragon Guarantee" means a guarantee by Paragon of all of the Obligations
of TWEAN, substantially in the form of Exhibit B-3.
"Paragon Partner Guarantee" means a guarantee by a Paragon Partner
Guarantor of its Guaranteed Percentage of the obligations of Paragon pursuant to
the Paragon Guarantee, substantially in form of Exhibit B-4.
"Paragon Partner Guarantor" means each of the guarantors listed from time
to time on Schedule 1 to the Paragon Partner Guarantee, in each case for so long
as such Person remains a party to such Paragon Partner Guarantee.
"Participating Member State" means a member of the European Communities
that adopts or has adopted the Euro as its currency in accordance with EMU
Legislation.
"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 any 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.
"Pounds" or "(pound)" or "Pound Sterling" refer to lawful money of the
United Kingdom.
"Pound Sterling Overnight Rate" means, for any day, a rate per annum equal
to the rate on overnight Pound Sterling deposits in the London interbank market
as such rates are quoted on Page 3750 of the Telerate Service (or on any
successor or substitute page of such Service, or any successor to or substitute
for such Service, providing rate quotations comparable to those currently
provided on such page of such Service, as determined by the Administrative Agent
from time to time for purposes of providing quotations of interest rates
applicable to Pound Sterling deposits in the London interbank market), plus the
Mandatory Cost, plus the Applicable Rate.
"Pound Sterling Quoted Rate" means, for any day for any Swingline Loan, a
rate per annum quoted by the Swingline Lender to the applicable Borrower in
response to a Borrowing Request for a Swingline Borrowing as its overnight offer
rate in effect for such Swingline Loan at its principal office in London, plus
the Mandatory Cost plus the Applicable Rate.
"Primary Guarantee" means a guarantee by the Guarantors described in
clauses (a) and (b) of the definition thereof, substantially in the form of
Exhibit B-1.
"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 City; each change in the Prime Rate shall be
effective from and including the date such change is publicly announced as being
effective.
"Rating" has the meaning assigned to such term in the definition of
"Applicable Rate".
"Reference Banks" means JPMorgan Chase Bank, Bank of America, N.A. and
Citibank, N.A. and their respective Affiliates.
"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, at any time, Lenders having Commitments
representing more than 50% of the sum total of the Commitments at such time, or
after the Commitment Termination Date, Lenders having Revolving Credit Exposures
representing more than 50% of the sum of the total Revolving Credit Exposures at
such time.
"Responsible Officer" means, as to any Person, any of the Chief Executive
Officer, Chief Legal Officer, Chief Financial Officer, Treasurer or Controller
(or any equivalent of the foregoing officers) of such Person.
"Restricted Companies" means the Companies other than any Unrestricted
Subsidiaries.
"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" of any Borrower means, as of any date, all
Subsidiaries of such Borrower that have not been designated as Unrestricted
Subsidiaries by such Borrower pursuant to Section 6.08 or have been so
designated as Unrestricted Subsidiaries by such Borrower but prior to such date
have been (or have been deemed to be) re-designated by such Borrower as
Restricted Subsidiaries pursuant to Section 6.08.
"Revolving Borrowing" means a Borrowing of Revolving Loans.
"Revolving Credit Exposure" means, with respect to any Lender at any time,
the sum of the outstanding principal amount of such Lender's Revolving Loans,
its Yen Exposure, its LC Exposure and its Swingline Exposure at such time.
"Revolving Loan" means a Loan made pursuant to Section 2.03.
"S&P" means Standard & Poor's Rating Services.
"SEC" means the Securities and Exchange Commission, any successor thereto
and any analogous Governmental Authority.
"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
pursuant to such Regulation D. Eurocurrency 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.
"Stock Option Loans" means (a) borrowings under that certain Credit
Agreement dated as of March 13, 1998, as amended, among Time Warner, The Chase
Manhattan Bank, as administrative agent thereunder, and the lenders party
thereto; provided the lenders thereunder shall not have the benefit of any Lien
other than on the Capital Stock of AOLTW and proceeds therefrom or (b)
borrowings under substantially similar facilities.
"Subsequent Participant" means any member state that adopts the Euro as its
lawful currency after the date hereof.
"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 AOLTW.
"Swingline Borrowing" means a Borrowing of Swingline Loans.
"Swingline Exposure" means, at any time, the aggregate principal amount of
all Swingline Loans outstanding at such time. The Swingline Exposure of any
Lender at any time shall be its Applicable Percentage of the total Swingline
Exposure at such time.
"Swingline Lender" means JPMorgan Chase Bank (or any other Lender selected
by AOLTW with such Lender's consent), in its capacity as lender of Swingline
Loans hereunder.
"Swingline Loan" means a Loan made pursuant to Section 2.04.
"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, (i) in
the case of a Subsidiary that is a corporation, would have been payable by such
Subsidiary on a standalone basis, and (ii) in the case of a Subsidiary that is a
partnership, would have been distributed by such Subsidiary to its owners with
respect to taxes, and in each case which are calculated in accordance with, and
made no earlier than 10 days prior to the date required by, the terms of the
applicable organizational document which requires such distribution.
"Taxes" means any and all present or future taxes, levies, imposts, duties,
deductions, charges or withholdings imposed by any Governmental Authority.
"TBS" means ▇▇▇▇▇▇ Broadcasting System, Inc., a Georgia corporation.
"364-Day Credit Agreement" means the 364-Day Credit Agreement, dated as of
the date hereof, among the Borrowers, the lenders referred to therein, Citibank,
N.A. and Bank of America, N.A., as Co-Syndication Agents, ABN AMRO Bank N.V. and
BNP Paribas, as Co-Documentation Agents, and JPMorgan Chase Bank, as
Administrative Agent, as amended, supplemented or otherwise modified from time
to time.
"TIBOR" means, when used in reference to any Loan or Borrowing, refers to
whether such Loan, or the Loans comprising such Borrowing, are bearing interest
at a rate determined by reference to the TIBOR Rate.
"TIBOR Rate" means, with respect to any TIBOR Borrowing for any Interest
Period, the rate per annum appearing on the TIBM Page under the caption "Average
of 10 Banks" of Reuters (or on any successor or substitute page of such service,
or any successor to or substitute for such service, providing rate quotations
comparable to those currently provided on such page of such service, as
determined by the Administrative Agent from time to time for purposes of
providing quotations of interest rates applicable to Yen deposits in the Tokyo
interbank market) at approximately 11:00 a.m., Tokyo time, two Business Days
prior to the commencement of such Interest Period, as the rate applicable to
deposits in Yen with a maturity comparable to such Interest Period, plus any
costs incurred by making or funding such TIBOR Borrowing hereunder, if such
costs result directly from any applicable banking law or regulation or from any
applicable requirement or directive of any Governmental Authority, including the
imposition of any reserve requirement.
"Time Warner" means Time Warner Inc., a Delaware corporation.
"Transactions" means (a) the execution, delivery and performance by (i)
each of the Borrowers of this Agreement and (ii) each of the Guarantors of the
Guarantee, and (b) the borrowing of Loans.
"Treaty" means the Treaty establishing the European Economic Community,
being the Treaty of Rome of March 25, 1957 (as amended by the Single ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, the Maastricht Treaty (which was signed at Maastricht on February 7,
1992 and came into force on November 1, 1993), the Amsterdam Treaty (which was
signed at Amsterdam on October 2, 1997 and came into force on May 1, 1999) and
the Nice Treaty (which was signed on February 26, 2001), each as amended from
time to time and as referred to in legislative measures of the European Union
for the introduction of, changeover to or operating of the Euro in one or more
member states.
"TWCI" means Time Warner Companies, Inc., a Delaware corporation.
"TWE" has the meaning assigned to such term in the preamble
hereto.
"TWE Partner Guarantee" means a guarantee by a TWE Partner Guarantor of its
Guaranteed Percentage of the Obligations of TWE, substantially in the form of
Exhibit B-2.
"TWE Partner Guarantor" means American Television and Communications
Corporation and Warner Communications Inc., in each case for so long as such
Person remains a party to the TWE Partner Guarantee.
"TWEAN" has the meaning assigned to such term in the preamble hereto.
"TWEAN Sublimit" means the maximum aggregate amount of Loans and other
extensions of credit TWEAN may have outstanding under the Facilities at any one
time (including, without limitation, Swingline Loans or Letters of Credit), such
amount not to exceed $2,500,000,000.
"TWIC" means TWI Cable 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, the Alternate Base Rate, the
Pound Sterling Overnight Rate, the Pound Sterling Quoted Rate, the Euro
Overnight Rate, the Euro Quoted Rate, the TIBOR 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" of any Borrower means, as of any time, all
Subsidiaries of such Borrower that have been designated as Unrestricted
Subsidiaries by such Borrower pursuant to Section 6.08.
"Utilization Fee" has the meaning assigned to such term in Section 2.11(b).
"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.
"Yen" and "(Y)" refer to lawful money of Japan.
"Yen Borrowers" means AOLTW and AOLTWFI, and TWE at such times as it is
permitted to borrow hereunder.
"Yen Commitment" means, with respect to each Yen Fronting Lender, the
commitment of such Yen Fronting Lender to make Yen Loans hereunder, as such
commitment may be (a) reduced from time to time pursuant to Section 2.08 or
Section 2.18 and (b) reduced or increased from time to time pursuant to
assignments by or to such Lender pursuant to Section 9.04. The initial amount of
each Yen Fronting Lender's Yen Commitment is set forth on Schedule 2.01, or in
the Assignment and Acceptance pursuant to which such Lender shall have assumed
its Yen Commitment, as applicable.
"Yen Exposure" means, at any time, the aggregate principal amount of all
Yen Loans outstanding at such time. The Yen Exposure of any Lender at any time
shall be its Applicable Percentage of the total Yen Exposure at such time.
"Yen Fronting Lenders" means JPMorgan Chase Bank, Bank of America, N.A.,
Citibank, N.A., BNP Paribas and ABN AMRO Bank N.V., in their capacity as Lenders
of Yen Loans hereunder.
"Yen Loans" means a Loan denominated in Yen.
"Yen Sublimit" means $500,000,000.
SECTION 1.02. Classification of Loans and Borrowings. For purposes of this
Agreement, Loans may be classified and referred to by Class (e.g., a "Revolving
Loan") or by Type (e.g., a "Eurocurrency Loan") or by Class and Type (e.g., a
"Eurocurrency Revolving Loan"). Borrowings also may be classified and referred
to by Class (e.g., a "Revolving Borrowing") or by Type (e.g., a "Eurocurrency
Borrowing") or by Class and Type (e.g., a "Eurocurrency Revolving 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, (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 AOLTW notifies the Administrative Agent that AOLTW 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 AOLTW that
the Required Lenders request an amendment to any provision hereof for such
purpose), regardless of whether any such notice is given before or after such
change in GAAP or in the application thereof, then such provision shall be
interpreted on the basis of GAAP as in effect and applied immediately before
such change shall have become effective until such notice shall have been
withdrawn or such provision amended in accordance herewith.
ARTICLE II
The Credits
SECTION 2.01. Commitments. (a) Subject to the terms and conditions set
forth herein, each Lender agrees to make Revolving Loans to each Borrower in
Dollars or any Optional Currency other than Yen from time to time during the
Availability Period so long as, after giving effect thereto, (i) such Lender's
Revolving Credit Exposure will not exceed such Lender's Commitment, (ii) the sum
of the total Revolving Credit Exposures will not exceed the sum total of the
Commitments and (iii) such Borrowing will not cause TWEAN to exceed the TWEAN
Sublimit. Within the foregoing limits and subject to the terms and conditions
set forth herein, each Borrower may borrow, prepay and reborrow Revolving Loans.
The Revolving Loans made in Dollars may from time to time be Eurocurrency Loans
or Alternate Base Rate Loans; the Revolving Loans made in Pounds may from time
to time be Eurocurrency Loans or Pound Sterling Overnight Rate Loans; and the
Revolving Loans made in Euros may from time to time be Eurocurrency Loans or
Euro Overnight Rate Loans, in each case as determined by the applicable Borrower
and notified to the Administrative Agent in accordance with Sections 2.03 and
2.07. TWEAN shall be permitted to borrow in Dollars only.
(b) (i) Subject to the terms and conditions set forth herein, the Yen
Fronting Lenders agree to make Yen Loans, ratably in accordance with their Yen
Commitments, to each Yen Borrower from time to time during the Availability
Period so long as, after giving effect thereto, (A) the aggregate principal
amount of outstanding Yen Loans will not exceed the Yen Sublimit, (B) the sum of
the total Revolving Credit Exposures will not exceed the sum total of the
Commitments, (C) such Yen Fronting Lender's Revolving Credit Exposure will not
exceed such Yen Fronting Lender's Commitment and (D) the aggregate principal
amount of the outstanding Yen Loans made by any Yen Fronting Lender will not
exceed such Yen Fronting Lender's Yen Commitment. Within the foregoing limits
and subject to the terms and conditions set forth herein, each Yen Borrower may
borrow, prepay and reborrow Yen Loans.
(ii) If any Event of Default shall occur and be continuing, any Yen
Fronting Lender may by written notice to the Administrative Agent not later than
11:00 am, New York time, on any Business Day require the Lenders to acquire
participations on such Business Day in all or a portion of the Yen Loans
outstanding. Such notice shall specify the aggregate amount of Yen Loans in
which Lenders will participate. Promptly upon receipt of such notice, the
Administrative Agent will give notice thereof to each Lender, specifying in such
notice such Lender's Applicable Percentage of the Dollar Equivalent Amount of
such Yen Loan or Loans. Each Lender hereby absolutely and unconditionally
agrees, upon receipt of notice as provided above, to pay to the Administrative
Agent, for the account of the Yen Fronting Lender, such Lender's Applicable
Percentage of such Yen Loan or Loans in Dollars. Each Lender acknowledges and
agrees that its obligation to acquire participations in Yen Loans pursuant to
this paragraph is absolute and unconditional and shall not be affected by any
circumstance whatsoever, including the occurrence and continuance of a Default
or reduction or termination of the Commitments, and that each such payment shall
be made without any offset, abatement, withholding or reduction whatsoever. Each
Lender shall comply with its obligation under this paragraph by wire transfer of
immediately available funds, in the same manner as provided in Section 2.06 with
respect to Loans made by such Lender (and Section 2.06 shall apply, mutatis
mutandis, to the payment obligations of the Lenders), and the Administrative
Agent shall promptly pay to the Yen Fronting Lenders pro rata according to their
Yen Exposures the amounts so received by it from the Lenders. The Administrative
Agent shall notify the applicable Yen Borrower of any participations in any Yen
Loan to it acquired pursuant to this paragraph. Any amounts received by the
Administrative Agent from the applicable Yen Borrower (or other party on behalf
of the applicable Yen Borrower) in respect of such Loan after receipt by the Yen
Fronting Lender of the proceeds of a sale of participations therein shall be
promptly remitted by the Administrative Agent to the Lenders that shall have
made their payments pursuant to this paragraph and to the Yen Fronting Lenders,
pro rata as their interests may appear. The purchase of participations in a Yen
Loan pursuant to this paragraph shall not relieve the applicable Yen Borrower of
its obligations in respect of the payment thereof. From and after such purchase,
(i) the outstanding Yen Loans in which the Lenders have purchased such
participations shall be deemed to have been converted into Alternate Base Rate
Loans denominated in Dollars (with such conversion constituting, for purposes of
Section 2.15, a prepayment of such Yen Loans before the last day of the Interest
Period with respect thereto) and (ii) all amounts from time to time accruing,
and all amounts from time to time payable, on account of such Loans (including,
without limitation, any interest and other amounts which were accrued but unpaid
on the date of such purchase) shall be payable in Dollars as if such Loan had
originally been made in Dollars. Notwithstanding the foregoing, a Lender shall
not have any obligation to acquire a participation in a Yen Loan pursuant to
this paragraph if an Event of Default shall have occurred and be continuing at
the time such Yen Loan was made and such Lender shall have notified the Yen
Fronting Lenders in writing, at least one Business Day prior to the time such
Yen Loan was made, that such Event of Default has occurred and that such Lender
will not acquire participations in Yen Loans made while such Event of Default is
continuing.
SECTION 2.02. Loans and Borrowings. (a) Each Borrowing of Revolving Loans
(other than Yen Loans) shall consist of Revolving Loans made by the Lenders
ratably in accordance with their respective Commitments. Each Yen Loan shall be
made as part of a Borrowing consisting of Yen Loans made by the Yen Fronting
Lenders ratably in accordance with their respective Yen Commitments. The failure
of any Lender to make any Loan required to be made by it shall not relieve any
other Lender of its obligations hereunder; provided that the Commitments and Yen
Commitments of the Lenders are several and no Lender shall be responsible for
any other Lender's failure to make Loans as required.
(b) Subject to Section 2.13, each Revolving Borrowing shall be comprised
entirely of Base Rate Loans, Eurocurrency Loans or TIBOR Loans as the applicable
Borrower may request in accordance herewith. Each Swingline Loan shall be, if
denominated in Dollars, an ABR Loan, if denominated in Pounds Sterling, a Pound
Sterling Overnight Rate Loan or a Pound Sterling Quoted Rate Loan, or if
denominated in Euros, a Euro Overnight Rate Loan or a Euro Quoted Rate Loan, at
the option of the applicable Borrower. Each Lender at its option may make any
Eurocurrency Loan or TIBOR Loan, as applicable, 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 thereof to repay such Loan in accordance with the
terms of this Agreement and (ii) not create any additional liability of the
Borrowers in respect of Sections 2.14 or 2.16.
(c) At the commencement of each Interest Period for any Eurocurrency or
TIBOR Revolving Borrowing, such Borrowing shall be in an aggregate amount that
is an integral multiple of 1,000,000 units of the relevant Currency and not less
than an amount which is the Dollar Equivalent to $20,000,000. At the time that
any Base Rate Borrowing is made, such Borrowing shall be in an aggregate amount
that is an integral multiple of 1,000,000 units and not less than an amount
which is the Dollar Equivalent to $20,000,000; provided that any Base Rate
Borrowing may be in an aggregate amount that is equal to the entire unused
balance of the sum total of the Commitments or that is required to finance the
reimbursement of an LC Disbursement as contemplated by Section 2.05(e). Each
Swingline Loan shall be in an amount that is an integral multiple of 1,000,000
units and not less than $5,000,000. Borrowings of more than one Type and Class
may be outstanding at the same time; provided that there shall not at any time
be more than a total of 20 Eurocurrency Revolving Borrowings outstanding nor
more than five TIBOR Borrowings outstanding.
(d) Notwithstanding any other provision of this Agreement, no Borrower
shall be entitled to request or elect any Interest Period in respect of any
Borrowing that would end after the Maturity Date.
SECTION 2.03. Requests for Revolving Borrowings. To request a Revolving
Borrowing, a Borrower shall notify the Administrative Agent of such request by
telephone in accordance with Schedule 2.03(A); provided that no more than the
Dollar Equivalent of $2,000,000,000 of Revolving Loans denominated in Euros
shall be outstanding at any time as to which the Administrative Agent was
notified the same day as the Revolving Borrowing. Each 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 such Borrower. Each such
telephonic and written Borrowing Request shall specify the following information
in compliance with Section 2.02:
(a) the aggregate amount and Currency of the requested Borrowing, and, in
the case of an Optional Currency Borrowing, the Dollar Equivalent of the
requested Borrowing, as calculated using the Exchange Rate on the date of the
request;
(b) the date of such Borrowing, which shall be a Business Day;
(c) whether such Borrowing is to be an ABR Borrowing, a Pound Sterling
Overnight Rate Borrowing, a Euro Overnight Rate Borrowing, a Eurocurrency
Borrowing or a TIBOR Borrowing;
(d) in the case of a Eurocurrency or TIBOR 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 applicable 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 Revolving Borrowing is
specified, then the requested Revolving Borrowing shall be deemed a Base Rate
Borrowing. If no Interest Period is specified with respect to any requested
Eurocurrency or TIBOR Revolving Borrowing, then the applicable Borrower shall be
deemed to have selected an Interest Period of one month's duration. Promptly
following receipt of a Borrowing Request in accordance with this Section, the
Administrative Agent shall advise each Lender of the details thereof and of the
amount of such Lender's Loan to be made as part of the requested Borrowing.
SECTION 2.04. Swingline Loans. (a) Subject to the terms and conditions set
forth herein, the Swingline Lender agrees to make Swingline Loans to each
Borrower from time to time during the Availability Period, so long as, after
giving effect thereto, (i) the aggregate principal amount of outstanding
Swingline Loans will not exceed $250,000,000, (ii) the sum of the total
Revolving Credit Exposures will not exceed the sum total of the Commitments or
(iii) such Swingline Borrowing will not cause TWEAN to exceed the TWEAN
Sublimit; provided that the Swingline Lender shall not be required to make a
Swingline Loan to refinance an outstanding Swingline Loan. Within the foregoing
limits and subject to the terms and conditions set forth herein, each Borrower
may borrow, prepay and reborrow Swingline Loans. Swingline Loans shall be made
in Dollars, Pounds or Euros only. TWEAN shall be permitted to borrow in Dollars
only.
(b) To request a Swingline Loan, the applicable Borrower shall notify the
Administrative Agent of such request by telephone (confirmed by facsimile) in
accordance with Schedule 2.03(A). Each such notice shall be irrevocable and
shall specify the requested currency, the requested date (which shall be a
Business Day), the requested interest rate and amount of the requested Swingline
Loan. The Administrative Agent will promptly advise the Swingline Lender of any
such notice received from a Borrower. The Swingline Lender shall make each
Swingline Loan available to the applicable Borrower by means of a credit to the
general deposit account (as more specifically set forth on Schedule 2.03(B), and
changed from time to time only by a written notice) of the applicable Borrower
with the Swingline Lender by 4:00 p.m., Local Time, on the requested date of
such Swingline Loan.
(c) The Swingline Lender may by written notice given to the Administrative
Agent not later than 11:00 am, Local Time on any Business Day, on one Business
Day's notice to the Lenders, require the Lenders to acquire participations on
such Business Day in all or a portion of the Swingline Loans outstanding. Such
notice shall specify the aggregate amount of Swingline Loans in which Lenders
will participate. Promptly upon receipt of such notice, the Administrative Agent
will give notice thereof to each Lender, specifying in such notice such Lender's
Applicable Percentage of such Swingline Loan or Loans. Each Lender hereby
absolutely and unconditionally agrees, upon receipt of notice as provided above,
to pay to the Administrative Agent, for the account of the Swingline Lender,
such Lender's Applicable Percentage of such Swingline Loan or Loans. Each Lender
acknowledges and agrees that its obligation to acquire participations in
Swingline Loans pursuant to this paragraph is absolute and unconditional and
shall not be affected by any circumstance whatsoever, including the occurrence
and continuance of a Default or reduction or termination of the Commitments, and
that each such payment shall be made without any offset, abatement, withholding
or reduction whatsoever. Each Lender shall comply with its obligation under this
paragraph by wire transfer of immediately available funds, in the same manner as
provided in Section 2.06 with respect to Loans made by such Lender (and Section
2.06 shall apply, mutatis mutandis, to the payment obligations of the Lenders),
and the Administrative Agent shall promptly pay to the Swingline Lender the
amounts so received by it from the Lenders, whereafter such Swingline Loan shall
be deemed converted to a Base Rate Revolving Loan to the extent of such amounts
for all purposes of this Agreement. The Administrative Agent shall notify the
applicable Borrower of any participations in any Swingline Loan to it acquired
pursuant to this paragraph. Any amounts received by the Administrative Agent
from the applicable Borrower (or other party on behalf of the applicable
Borrower) in respect of a Swingline Loan after receipt by the Swingline Lender
of the proceeds of a sale of participations therein shall be promptly remitted
by the Administrative Agent to the Lenders that shall have made their payments
pursuant to this paragraph and to the Swingline Lender, pro rata as their
interests may appear. The purchase of participations in a Swingline Loan
pursuant to this paragraph shall not relieve the applicable Borrower of any of
its obligations in respect of the payment thereof. Notwithstanding the
foregoing, a Lender shall not have any obligation to acquire a participation in
a Swingline Loan pursuant to this paragraph if an Event of Default shall have
occurred and be continuing at the time such Swingline Loan was made and such
Lender shall have notified the Swingline Lender in writing, at least one
Business Day prior to the time such Swingline Loan was made, that such Event of
Default has occurred and that such Lender will not acquire participations in
Swingline Loans made while such Event of Default is continuing.
SECTION 2.05. Letters of Credit. (a) General. Subject to the terms and
conditions set forth herein, a Borrower may request the issuance of one or more
Letters of Credit in support of obligations of such Borrower and its
Subsidiaries, in a form reasonably acceptable to such Borrower and the Issuing
Bank, at any time and from time to time during the Availability Period. Each
Letter of Credit shall be issued in Dollars or in an Optional Currency other
than Yen. In the event of any inconsistency between the terms and conditions of
this Agreement and the terms and conditions of any form of letter of credit
application or other agreement submitted by the applicable Borrower to, or
entered into by such Borrower with, the Issuing Bank relating to any Letter of
Credit, the terms and conditions of this Agreement shall control. Letters of
Credit shall be issued to TWEAN in Dollars only.
(b) Notice of Issuance, Amendment, Renewal, Extension; Certain Conditions.
To request the issuance of a Letter of Credit (or the amendment, renewal or
extension of an outstanding Letter of Credit), a Borrower shall deliver by hand
or facsimile (or transmit by other electronic communication, if arrangements for
doing so have been approved by the Issuing Bank) to the Issuing Bank (reasonably
in advance of the requested date of such issuance, amendment, renewal or
extension and no later than 12:00 noon Local Time one Business Day prior to such
date) a notice requesting the issuance of a Letter of Credit, or identifying the
Letter of Credit to be amended, renewed or extended, and specifying the date of
issuance, amendment, renewal or extension (which shall be a Business Day), the
date on which such Letter of Credit is to expire (which shall comply with
paragraph (c) of this Section), the amount and Currency of such Letter of
Credit, the name and address of the beneficiary thereof and such other
information as shall be necessary to prepare, amend, renew or extend such Letter
of Credit, as the case may be. If requested by the Issuing Bank, the applicable
Borrower also shall submit a letter of credit application on the Issuing Bank's
standard form in connection with any request for a Letter of Credit. A Letter of
Credit shall be issued, amended, renewed or extended on the requested date only
if (and upon issuance, amendment, renewal or extension of each Letter of Credit
the applicable Borrower shall be deemed to represent and warrant that), after
giving effect to such issuance, amendment, renewal or extension (i) the LC
Exposure shall not exceed the L/C Sublimit, (ii) the sum of the total Revolving
Credit Exposures shall not exceed the sum total of the Commitments, (iii) such
issuance, amendment, renewal or extension shall not cause TWEAN to exceed the
TWEAN Sublimit and (iv) the requirements of paragraph (c) of this Section shall
be satisfied.
(c) Expiration Date. Each Letter of Credit shall expire at or prior to the
close of business on the earlier of (i) the date one year after the date of the
issuance of such Letter of Credit (or, in the case of any renewal or extension
thereof, one year after such renewal or extension) and (ii) the Maturity Date
unless such Letter of Credit is cash collateralized in an amount equal to its
face amount prior to 12:00 noon, Local Time on the Maturity Date; provided that
any Letter of Credit with a one-year tenor may provide for the renewal thereof
for additional one-year periods (which shall in no event extend beyond the date
referred to in clause (ii) above).
(d) Participations. By the issuance of a Letter of Credit (or an amendment
to a Letter of Credit increasing the amount thereof) and without any further
action on the part of the Issuing Bank or the Lenders, the Issuing Bank hereby
grants to each Lender, and each Lender hereby acquires from the Issuing Bank, a
participation in such Letter of Credit equal to such Lender's Applicable
Percentage of the aggregate amount available to be drawn under such Letter of
Credit. In consideration and in furtherance of the foregoing, each Lender hereby
absolutely and unconditionally agrees to pay to the Issuing Bank, such Lender's
Applicable Percentage of each LC Disbursement made by the Issuing Bank and not
reimbursed by the applicable Borrower on the date due as provided in paragraph
(e) of this Section, or of any reimbursement payment required to be refunded to
the applicable Borrower for any reason. Each Lender acknowledges and agrees that
its obligation to acquire participations pursuant to this paragraph in respect
of Letters of Credit is absolute and unconditional and shall not be affected by
any circumstance whatsoever, including any amendment, renewal or extension of
any Letter of Credit or the occurrence and continuance of a Default or reduction
or termination of the Commitments, and that each such payment shall be made
without any offset, abatement, withholding or reduction whatsoever.
(e) Reimbursement. If the Issuing Bank shall make any LC Disbursement in
respect of a Letter of Credit, the applicable Borrower shall reimburse such LC
Disbursement in the same Currency as such LC Disbursement by paying to the
Issuing Bank an amount equal to such LC Disbursement not later than 2:00 p.m.,
Local Time, on the Business Day immediately following the day that such Borrower
receives notice of such LC Disbursement; provided that, if such Borrower fails
to reimburse the Issuing Bank on such date, the Borrower shall be deemed to have
requested a Base Rate Borrowing in the principal amount and Currency of the LC
Disbursement, without regard to the minimum amounts and multiples set forth in
Section 2.02, but subject to the unutilized portion of the Commitments and the
TWEAN Sublimit. If the Borrower elects, or is deemed, to finance amounts due
under any Letter of Credit in such a manner, the Borrower's obligation to pay an
amount equal to the LC Disbursement to the Issuing Bank shall be discharged and
replaced by the resulting Base Rate Borrowing, and the Issuing Bank shall notify
the Administrative Agent, who shall notify each Lender of the applicable LC
Disbursement and corresponding Base Rate Borrowing and such Lender's Applicable
Percentage thereof. Promptly following receipt of such notice, each Lender shall
pay to the Issuing Bank its Applicable Percentage of such Base Rate Borrowing,
in the same manner as provided in Section 2.06 with respect to Loans made by
such Lender (and Section 2.06 shall apply, mutatis mutandis, to the payment
obligations of the Lenders). Promptly following receipt of any payment from a
Borrower pursuant to this paragraph, such payment shall be distributed to the
Issuing Bank (and the participating Lenders as their interests may appear) or,
to the extent that Lenders have made payments pursuant to this paragraph to fund
any Base Rate Loan made to reimburse the Issuing Bank, to such Lenders and the
Issuing Bank (and the participating Lenders as their interests may appear) pro
rata as their interests may appear.
(f) Obligations Absolute. The applicable Borrower's obligation to reimburse
LC Disbursements as provided in paragraph (e) of this Section shall be absolute,
unconditional and irrevocable, and shall be performed strictly in accordance
with the terms of this Agreement under any and all circumstances whatsoever and
irrespective of (i) any lack of validity or enforceability of any Letter of
Credit or this Agreement, or any term or provision therein, (ii) any draft or
other document presented under a Letter of Credit proving to be forged,
fraudulent or invalid in any respect or any statement therein being untrue or
inaccurate in any respect, (iii) payment by the Issuing Bank under a Letter of
Credit against presentation of a draft or other document that does not strictly
comply with the terms of such Letter of Credit, or (iv) any other event or
circumstance whatsoever, whether or not similar to any of the foregoing, that
might, but for the provisions of this Section, constitute a legal or equitable
discharge of, or provide a right of setoff against, such Borrower's obligations
hereunder, the respective Issuing Bank's only obligation to the applicable
Borrower in respect of any drawing made on any Letter of Credit being to confirm
that any documents required to be delivered under such Letter of Credit appear
to have been delivered and appear to substantially comply on their face with the
requirements of such Letter of Credit. Neither the Administrative Agent, nor any
of the Lenders nor the Issuing Bank, nor any of their Related Parties, shall
have any liability or responsibility by reason of or in connection with the
issuance or transfer of any Letter of Credit or any payment or failure to make
any payment thereunder (irrespective of any of the circumstances referred to in
the preceding sentence), or any error, omission, interruption, loss or delay in
transmission or delivery of any draft, notice or other communication under or
relating to any Letter of Credit (including any document required to make a
drawing thereunder), any error in interpretation of technical terms or any
consequence arising from causes beyond the control of the Issuing Bank; provided
that the foregoing shall not be construed to excuse the Issuing Bank from
liability to such Borrower to the extent of any direct damages (as opposed to
consequential damages, claims in respect of which are hereby waived by such
Borrower to the extent permitted by applicable law) suffered by such Borrower
that are caused by the Issuing Bank's gross negligence or willful misconduct in
connection with any of the foregoing circumstances. In furtherance of the
foregoing and without limiting the generality thereof, the parties agree that,
with respect to documents presented which appear on their face to be in
substantial compliance with the terms of a Letter of Credit, the Issuing Bank
may, in its sole discretion, either accept and make payment upon such documents
without responsibility for further investigation, regardless of any notice or
information to the contrary, or refuse to accept and make payment upon such
documents if such documents are not in strict compliance with the terms of such
Letter of Credit.
(g) Disbursement Procedures. The Issuing Bank shall, promptly following its
receipt thereof, examine all documents purporting to represent a demand for
payment under a Letter of Credit. The Issuing Bank shall promptly notify the
Lenders and the applicable Borrower by telephone (confirmed by facsimile) of
such demand for payment and whether the Issuing Bank has made or will make an LC
Disbursement thereunder; provided that any failure to give or delay in giving
such notice shall not relieve the applicable Borrower of its obligation to
reimburse the Issuing Bank and/or the Lenders with respect to any such LC
Disbursement.
(h) Interim Interest. If the Issuing Bank shall make any LC Disbursement,
then, unless the applicable Borrower shall reimburse such LC Disbursement in
full on the date such LC Disbursement is made, the unpaid amount thereof shall
bear interest, for each day from and including the date such LC Disbursement is
made to but excluding the date that such Borrower reimburses such LC
Disbursement, at the rate per annum then applicable to Base Rate Loans in the
applicable Currency; provided that, if such LC Disbursement cannot be reimbursed
with the proceeds of a Revolving Loan pursuant to Section 2.05(e) and the
applicable Borrower fails to reimburse such LC Disbursement within three
Business Days, then Section 2.12(g) shall apply. Interest accrued pursuant to
this paragraph shall be for the account of the Issuing Bank, except that
interest accrued on and after the date of payment by any Lender pursuant to
paragraph (e) of this Section to reimburse the Issuing Bank shall be for the
account of such Lender to the extent of such payment.
(i) Replacement of the Issuing Bank. The Issuing Bank may be replaced at
any time by written agreement among AOLTW, the replaced Issuing Bank and the
successor Issuing Bank. AOLTW shall notify the Administrative Agent, who will
notify the Lenders of any such replacement of the Issuing Bank. At the time any
such replacement shall become effective, the applicable Borrowers shall pay all
unpaid fees accrued for the account of the replaced Issuing Bank pursuant to
Section 2.11(b). From and after the effective date of any such replacement, (i)
the successor Issuing Bank shall have all the rights and obligations of the
Issuing Bank under this Agreement with respect to Letters of Credit to be issued
thereafter and (ii) references herein to the term "Issuing Bank" shall be deemed
to refer to such successor or to any previous Issuing Bank, or to such successor
and all previous Issuing Banks, as the context shall require. After the
replacement of an Issuing Bank hereunder, the replaced Issuing Bank shall remain
a party hereto and shall continue to have all the rights and obligations of an
Issuing Bank under this Agreement with respect to Letters of Credit issued by it
prior to such replacement, but shall not be required to issue additional Letters
of Credit.
(j) Existing Letters of Credit. Notwithstanding anything to the contrary
above in this Section 2.05, including, without limitation, the procedural
requirements of clause (b) hereof, each letter of credit listed on Schedule 2.05
which is outstanding on the Effective Date (including any extension thereof)
shall constitute a "Letter of Credit" for all purposes of this Agreement and
shall be deemed issued, including for purposes of this Section 2.05 and Section
2.11(c), on the Effective Date. Thereafter, each such Letter of Credit deemed
issued pursuant to this Section 2.05(j) shall be governed by, and shall be
subject to the provisions of, this Section 2.05, and AOLTW and the respective
Issuing Banks with respect to such Letters of Credit deemed issued pursuant to
this Section 2.05 agree that any reimbursement agreement, credit agreement or
other document (excluding such Letter of Credit itself) previously governing
such Letter of Credit shall be deemed terminated and replaced with the
provisions of this Section 2.05 and the other applicable terms of this Agreement
(it being understood that any fees or other amounts payable to such Issuing Bank
accrued prior to the Effective Date in respect of any such Letter of Credit,
shall be payable to such Issuing Bank in accordance with the provisions of such
prior agreement).
SECTION 2.06. Funding of Borrowings. (a) Each Lender shall make each Loan
to be made by it hereunder on the proposed date thereof by wire transfer of
immediately available funds by 12:00 noon, Local Time for the applicable
Currency, to the account of the Administrative Agent most recently designated by
it for such purpose by notice to the Lenders; provided that Swingline Loans
shall be made as provided in Section 2.04. The Administrative Agent will make
such Loans available to the applicable Borrower by promptly crediting the
amounts so received, in like funds, to an account of the applicable Borrower
specified on Schedule 2.03(B) or designated by the applicable Borrower in the
applicable Borrowing Request.
(b) Unless the Administrative Agent shall have received notice from a
Lender prior to the proposed date of any Borrowing that such Lender will not
make available to the Administrative Agent such Lender's share of such
Borrowing, the Administrative Agent may assume that such Lender has made such
share available on such date in accordance with paragraph (a) of this Section
and may, in reliance upon such assumption, make available to the applicable
Borrower a corresponding amount. In such event, if a Lender has not in fact made
its share of the applicable Borrowing available to the Administrative Agent,
then the Administrative Agent shall have the right to demand payment from the
applicable Lender and/or the applicable Borrower and they each severally agree
to pay to the Administrative Agent forthwith on demand such corresponding amount
with interest thereon, for each day from and including the date such amount is
made available to the applicable Borrower to but excluding the date of payment
to the Administrative Agent, at (i) in the case of such Lender, (A) in the case
of Borrowings denominated in Dollars, the Alternative Base Rate, and (B) in the
case of Borrowings denominated in any Optional Currency, the interest rate
reasonably determined by the Administrative Agent as the rate applicable to
overnight settlements between banks for the amount advanced by the
Administrative Agent on behalf of such Lender or (ii) in the case of the
applicable Borrower, the interest rate that would otherwise apply to such
Borrowing. If such Lender pays such amount to the Administrative Agent, then
such amount shall constitute such Lender's Loan included in such Borrowing and
such payment shall absolve any obligation of the applicable Borrower in respect
of any demand made under this Section in respect of such Loan.
SECTION 2.07. Interest Elections. (a) Each Revolving Borrowing initially
shall be of the Type specified in the applicable Borrowing Request and, in the
case of a Eurocurrency or TIBOR Revolving 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 (but of the same
currency) or to continue such Borrowing and, in the case of a Eurocurrency or
TIBOR Revolving 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. This Section shall not apply to Swingline Borrowings, which
may be made and maintained only as Base Rate Loans.
(b) To make an election pursuant to this Section, the applicable Borrower
shall notify the Administrative Agent of such election by telephone by the time
that a Borrowing Request would be required under Section 2.03 such Borrower were
requesting a Revolving Borrowing of the Type resulting from such election to be
made on the effective date of such election (as more specifically set forth in
Schedule 2.03(A)). 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 applicable 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 a Base Rate Borrowing
or a Eurocurrency or a TIBOR Borrowing;
(iv) if the resulting Borrowing is a Eurocurrency or TIBOR 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 Eurocurrency Borrowing or TIBOR
Borrowing but does not specify an Interest Period, then the applicable Borrower
shall be deemed to have selected an Interest Period of one month's duration. All
Loans denominated in Yen in each case shall be TIBOR Loans.
(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 applicable Borrower fails to deliver a timely Interest Election
Request with respect to a Eurocurrency or TIBOR Revolving 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 Eurocurrency or TIBOR Revolving 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
applicable Borrower, then, so long as an Event of Default is continuing (i) no
outstanding Revolving Borrowing may be converted to or continued as a
Eurocurrency or TIBOR Borrowing and (ii) unless repaid, each Eurocurrency and
TIBOR Revolving Borrowing shall be converted to a Base Rate Borrowing at the end
of the Interest Period applicable thereto.
SECTION 2.08. Termination and Reduction of Commitments. The Commitments
shall terminate on the Commitment Termination Date.
(a) AOLTW may at any time terminate, or from time to time reduce, the
Commitments; provided that (i) each reduction of the Commitments shall be in an
amount that is an integral multiple of $1,000,000 and not less than $20,000,000
and (ii) AOLTW shall not terminate or reduce the Commitments if, after giving
effect thereto and to any concurrent prepayment of the Loans in accordance with
Section 2.10, the sum of the Revolving Credit Exposures would exceed the total
Commitments.
(b) AOLTW shall notify the Administrative Agent of any election to
terminate or reduce the Commitments under paragraph (a) 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 AOLTW pursuant to this Section shall
be irrevocable; provided that a notice of termination of the Commitments
delivered by AOLTW may state that such notice is conditioned upon the
effectiveness of other credit facilities, in which case such notice may be
revoked by AOLTW (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) Each Borrower
hereby unconditionally promises to pay (i) to the Administrative Agent for the
account of each Lender the then unpaid principal amount of each Revolving Loan
made to such Borrower on the Maturity Date (ii) to the Administrative Agent for
the account of each Yen Fronting Lender and the participating Lenders as their
interests may appear the then unpaid principal amount of each Yen Loan owed by
such Borrower on the Maturity Date and (iii) to the Administrative Agent the
then unpaid principal amount of each Swingline Loan owed by such Borrower on the
earlier of the Maturity Date and the first date after such Swingline Loan is
made that a Revolving Borrowing is made by such Borrower.
(b) Each Lender shall maintain in accordance with its usual practice an
account or accounts evidencing the indebtedness of each 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 and Currency of each Loan made hereunder, the Class 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 each
Borrower to each Lender hereunder and (iii) the amount of any sum received by
the Administrative Agent hereunder for the account of the Lenders and each
Lender's share thereof.
(d) The entries made in the accounts maintained pursuant to paragraph (b)
or (c) of this Section shall be prima facie evidence of the existence and
amounts of the obligations recorded therein; provided that the failure of any
Lender or the Administrative Agent to maintain such accounts or any error
therein shall not in any manner affect the obligation of the applicable 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, each 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 applicable Borrowers. Thereafter, the
Loans evidenced by such Note and interest thereon shall at all times (including
after assignment pursuant to Section 9.04) be represented by one or more Notes
in such form payable to the order of the payee named therein (or, if such
promissory note is a registered note, to such payee and its registered assigns).
SECTION 2.10. Prepayment of Loans. (a) Each 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.
(b) The Borrower that desires to make a prepayment 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, if a notice of
prepayment is given in connection with a conditional notice of termination of
the Commitments as contemplated by Section 2.08, then such notice of prepayment
may be revoked if such notice of termination is revoked in accordance with
Section 2.08. Promptly following receipt of any such notice relating to (i) a
Revolving Borrowing, the Administrative Agent shall advise the Lenders of the
contents thereof and (ii) a Swingline Borrowing, the Administrative Agent shall
advise the Swingline Lender of the contents thereof. Each partial prepayment of
any Revolving Borrowing shall be in an amount that would be permitted in the
case of an advance of a Revolving Borrowing of the same Type as provided in
Section 2.02. Each prepayment of a Revolving 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 Borrowers agree, jointly and severally, to pay
to the Administrative Agent for the account of each Lender a facility fee (a
"Facility Fee") which shall accrue at the Applicable Rate on the average daily
amount of the Commitment of such Lender (whether used or unused) during the
period from and including the Effective Date to but excluding the date on which
such Commitment terminates; provided that, if such Lender continues to have any
Revolving Credit Exposure after its Commitment terminates, then such Facility
Fee shall continue to accrue on the average daily amount of such Lender's
Revolving Credit Exposure from and including the date on which its Commitment
terminates to but excluding the date on which such Lender ceases to have any
Revolving Credit Exposure. Accrued Facility Fees shall be payable in arrears on
the last day of March, June, September and December of each year and on the
Maturity Date (or such earlier date after the Commitment Termination Date on
which the Loans are repaid in full), commencing on the first such date to occur
after the date hereof. All Facility Fees shall be computed on the basis of a
year of 360 days and shall be payable for the actual number of days elapsed
(including the first day but excluding the last day).
(b) The Borrowers agree, jointly and severally, to pay to the
Administrative Agent, for the account of each Lender, during the period from and
including the Effective Date to but excluding the date on which the Commitments
terminate and the Revolving Credit Exposures of all the Lenders are paid or
extinguished in full, a utilization fee (a "Utilization Fee") which shall
accrue, with respect to any day, (a) that the Commitment Utilization Percentage
is greater than 33% but less than or equal to 66%, at the rate of 0.0625% per
annum on such Lender's Revolving Credit Exposure, and (b) that the Commitment
Utilization Percentage is greater than 66%, at the rate of 0.125% per annum on
such Lender's Revolving Credit Exposure. Accrued Utilization Fees shall be
payable in arrears on the last day of March, June, September and December of
each year, on the Maturity Date and on any date thereafter on which the
Revolving Credit Exposures of all the Lenders are paid or extinguished in full,
commencing on the first such date to occur after the date hereof. All
Utilization Fees shall be computed on the basis of a year of 360 days and shall
be payable for the actual number of days elapsed (including the first day but
excluding the last day).
(c) The applicable Borrower agrees to pay (i) to each Lender a letter of
credit fee (a "Letter of Credit Fee") with respect to its participations in
Letters of Credit, which shall accrue at the Applicable Rate for Eurocurrency
Revolving Loans on the average daily amount of such Lender's LC Exposure
(excluding any portion thereof attributable to unreimbursed LC Disbursements)
during the period from and including the Effective Date to but excluding the
later of the date on which such Lender's Commitment terminates and the date on
which such Lender ceases to have any LC Exposure, and (ii) to the Issuing Bank a
fronting fee (a "Fronting Fee"), which shall accrue at the rate of 0.125% per
annum of the face amount of each Letter of Credit (excluding any portion thereof
attributable to unreimbursed LC Disbursements) during the period from and
including the Effective Date to but excluding the later of the date of
termination of the Commitments and the date on which there ceases to be any LC
Exposure. Letter of Credit Fees and Fronting Fees accrued through and including
the last day of March, June, September and December of each year shall be
payable on the third Business Day following such last day, commencing on the
first such date to occur after the Effective Date; provided that all such fees
shall be payable on the date on which the Commitments terminate and any such
fees accruing after the date on which the Commitments terminate shall be payable
on demand. All Letter of Credit Fees and Fronting Fees shall be computed on the
basis of a year of 360 days and shall be payable for the actual number of days
elapsed (including the first day but excluding the last day).
(d) The Borrowers agree, jointly and severally, to pay to the
Administrative Agent, for its own account, fees payable in the amounts and at
the times separately agreed upon between AOLTW and the Administrative Agent.
(e) All fees payable hereunder shall be paid on the dates due, in
immediately available funds, to the Administrative Agent for distribution, in
the case of Facility Fees, Utilization Fees, Letter of Credit Fees and Fronting
Fees, to the Lenders entitled thereto or, in the case of Fronting Fees, to the
Issuing Bank. 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 Eurocurrency 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) The Loans comprising each Pound Sterling Overnight Rate Borrowing shall
bear interest at a rate per annum equal to the Pound Sterling Overnight Rate.
(d) The Loans comprising each Euro Overnight Rate Borrowing shall bear
interest at a rate per annum equal to the Euro Overnight Rate.
(e) The Loans comprising each TIBOR Borrowing shall bear interest at a rate
per annum equal to the TIBOR Rate plus the Applicable Rate.
(f) The Loans comprising each Swingline Borrowing shall bear interest at a
rate per annum equal to (i) in the case of Swingline Loans denominated in
Dollars, the Alternative Base Rate, (ii) in the case of Swingline Loans
denominated in Pounds, the Pound Sterling Overnight Rate or the Pound Sterling
Quoted Rate, as applicable, and (iii) in the case of Swingline Loans denominated
in Euros, the Euro Overnight Rate or the Euro Quoted Rate, as applicable.
(g) Notwithstanding the foregoing, if any principal of or interest on any
Loan or any fee or other amount payable by any 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 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 Loans in the Base Rate of the
relevant Currency as provided above.
(h) 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 (g) 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
Revolving Loan prior to the end of the Availability Period), 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
Eurocurrency Revolving 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
Commitment Termination Date.
(i) All interest hereunder shall be computed on the basis of a year of 360
days, except that (i) 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), and
(ii) with respect to Loans denominated in Pounds, the interest rate thereon
shall be computed on the basis of a 365-day year, and in each case shall be
payable for the actual number of days elapsed (including the first day but
excluding the last day). The applicable Base Rate, TIBOR 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 Eurocurrency Borrowing or TIBOR 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 for
the relevant Currency or the TIBOR Rate; or
(b) the Administrative Agent is advised by the Required Lenders that
for such Interest Period the Adjusted LIBO Rate for the relevant Currency
or the TIBOR 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 applicable
Borrowers and the Lenders by telephone or facsimile as promptly as practicable
thereafter and, until the Administrative Agent notifies the applicable Borrowers
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
Revolving Borrowing to, or continuation of any Revolving Borrowing as, a
Eurocurrency Borrowing or TIBOR Borrowing, as applicable, shall be ineffective
and any such Borrowing referred to in such Interest Election Request shall,
unless repaid by the applicable Borrower, be converted to (as of the last day of
the then current Interest Period), or maintained as, a Base Rate 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 any Borrowing Request
requests a Eurocurrency Revolving Borrowing or TIBOR Revolving Borrowing, such
Borrowing shall, unless otherwise rescinded by the applicable Borrower, be made
as a Base Rate Loan in the applicable Currency (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, any Lender (except any such reserve requirement
reflected in the Adjusted LIBO Rate) or the Issuing Bank; or
(ii) impose on any Lender or the Issuing Bank or the London interbank
market or the Tokyo interbank market any other condition affecting this
Agreement or Eurocurrency or TIBOR Loans made by such Lender or any Letter
of Credit or participation therein;
and the result of any of the foregoing shall be to increase the cost to such
Lender of making or maintaining any Eurocurrency or TIBOR Loan (or of
maintaining its obligation to make any such Loan) or to increase the cost to
such Lender or the Issuing Bank of participating in, issuing or maintaining any
Letter of Credit or to reduce the amount of any sum received or receivable by
such Lender or the Issuing Bank hereunder (whether of principal, interest or
otherwise), then the applicable Borrower will pay to such Lender or the Issuing
Bank, as the case may be, such additional amount or amounts as will compensate
such Lender or the Issuing Bank, as the case may be, for such additional costs
actually incurred or reduction actually suffered.
(b) If any Lender or the Issuing Bank 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 or the Issuing Bank's capital or on the capital of
such Lender's or the Issuing Bank's holding company, if any, as a consequence of
the Commitment or the Loans made by, or participation in Letters of Credit held
by, such Lender, or the Letters of Credit issued by the Issuing Bank, to a level
below that which such Lender or the Issuing Bank or such Lender's or the Issuing
Bank's holding company could have achieved but for such Change in Law (taking
into consideration such Lender's or the Issuing Bank's policies and the policies
of such Lender's or the Issuing Bank's holding company with respect to capital
adequacy), then from time to time the applicable Borrowers will pay to such
Lender or the Issuing Bank, as the case may be, such additional amount or
amounts as will compensate such Lender or the Issuing Bank or such Lender's or
the Issuing Bank's holding company for any such reduction actually suffered in
respect of the Commitment or Loans made by, or participation in Letters of
Credit held by, such Lender hereunder.
(c) A certificate of a Lender or the Issuing Bank setting forth in
reasonable detail the amount or amounts necessary to compensate such Lender or
the Issuing Bank or its holding company, as the case may be, as specified in
paragraph (a) or (b) of this Section shall be delivered to the applicable
Borrowers and shall be conclusive absent manifest error. The applicable
Borrowers shall pay such Lender or the Issuing Bank, as the case may be, 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 or the Issuing Bank to
demand compensation pursuant to this Section shall not constitute a waiver of
such Lender's or the Issuing Bank's right to demand such compensation; provided
that the applicable Borrowers shall not be required to compensate a Lender or
the Issuing Bank pursuant to this Section for any increased costs or reductions
unless a Lender or the Issuing Bank gives notice to the applicable Borrowers
that they are obligated to pay an amount under this Section within six months
after the later of (i) the date the Lender or the Issuing Bank incurs such
increased costs, reduction in amounts received or receivable or reduction in
return on capital or (ii) the date such Lender or the Issuing Bank 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 nor
Issuing Bank 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 or the Issuing Bank 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 or the Issuing Bank to waive the right to demand such compensation in any
given case).
SECTION 2.15. Break Funding Payments. In the event of (a) the payment of
any principal of any Eurocurrency or TIBOR 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 Eurocurrency or TIBOR Loan other than on the
last day of the Interest Period applicable thereto, (c) the failure to borrow,
convert, continue or prepay any Revolving 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 Eurocurrency or TIBOR Loan other than on the last day
of the Interest Period applicable thereto as a result of a request by a Borrower
pursuant to Section 2.18, then, in any such event, the applicable Borrower shall
compensate each Lender for the loss, cost and expense attributable to such
event. In the case of a Eurocurrency or TIBOR 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 the applicable Currency 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 or the TIBOR Rate, as applicable,
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 the
applicable Currency from other banks in the Eurocurrency 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 applicable Borrower and shall
be conclusive absent manifest error. The applicable 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 each Borrower hereunder shall be made free and clear of and
without deduction for any Indemnified Taxes or Other Taxes; provided that if
such 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, Lender or
the Issuing Bank (as the case may be) receives an amount equal to the sum it
would have received had no such deductions been made, (ii) such Borrower shall
make such deductions and (iii) such Borrower shall pay the full amount deducted
to the relevant Governmental Authority in accordance with applicable law.
(b) Each Borrower shall indemnify the Administrative Agent, the Issuing
Bank 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 such
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, the Issuing Bank 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 such Borrower by a Lender,
or by the Administrative Agent or the Issuing Bank on its own behalf or on
behalf of a Lender, shall be conclusive absent manifest error.
(c) If a Lender or the Administrative Agent or the Issuing Bank receives a
refund in respect of any Indemnified Taxes or Other Taxes as to which it has
been indemnified by a Borrower or with respect to which a 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 such Borrower (but only to the
extent of indemnity payments made, or additional amounts paid, by such 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 or the Issuing Bank and without interest (other than
interest paid by the relevant taxation authority with respect to such refund);
provided that such Borrower, upon the request of such Lender or the
Administrative Agent or the Issuing Bank, agrees to repay the amount paid over
to such Borrower (plus penalties, interest or other charges) to such Lender or
the Administrative Agent or the Issuing Bank in the event such Lender or the
Administrative Agent or the Issuing Bank is required to repay such refund to
such taxation authority.
(d) As soon as practicable after any payment of Indemnified Taxes or Other
Taxes by any Borrower to a Governmental Authority, such 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 any Borrower is
located, or any treaty to which such jurisdiction is a party, with respect to
payments under this Agreement shall deliver to such Borrower (with a copy to the
Administrative Agent), at the time or times prescribed by applicable law or
reasonably requested by such 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 AOLTW (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) Each Borrower shall make each payment required to be made by it
hereunder (whether of principal, interest, fees or reimbursements of LC
Disbursements, or of amounts payable under Section 2.14, 2.15 or 2.16, or
otherwise) prior to 1:00 p.m., Local 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
(i) in New York, for payments in Dollars, (ii) in London, for payments in Euros
or Pounds and (iii) in Tokyo, for payments in Yen, in each case, at the offices
for the Administrative Agent set forth in Section 9.01, except payments to be
made directly to an Issuing Bank as expressly provided herein, and except that
payments pursuant to Sections 2.14, 2.15, 2.16 and 9.03 shall be made directly
to the Persons entitled thereto. The Administrative Agent shall distribute any
such payments received by it for the account of any other Person to the
appropriate recipient in like funds promptly following receipt thereof. If any
payment hereunder shall be due on a day that is not a Business Day, the date for
payment shall be extended to the next succeeding Business Day, and, in the case
of any payment accruing interest, interest thereon shall be payable for the
period of such extension. All payments hereunder, whether such payments are made
in respect of principal, interest or fees, shall be made in the Currency in
which the applicable payment obligation is due; provided, that payments in
respect of Facility Fees pursuant to Section 2.11 and any other payments (not in
respect of principal, interest or fees) or reimbursements shall be payable 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, unreimbursed LC
Disbursements, interest and fees then due from any Borrower hereunder, such
funds shall be applied (i) first, to pay interest and fees then due from such
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 and unreimbursed LC Disbursements, then due from such Borrower
hereunder, ratably among the parties entitled thereto in accordance with the
amounts of principal and unreimbursed LC Disbursements 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 Revolving Loans, participations in LC Disbursements or Swingline Loans
resulting in such Lender receiving payment of a greater proportion of the
aggregate amount of its Revolving Loans, participations in LC Disbursements and
Swingline Loans and accrued interest thereon owing by any 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
Revolving Loans, participations in LC Disbursements and Swingline Loans of other
Lenders owing from such 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
Revolving Loans, participations in LC Disbursements and Swingline 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 such 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, participations in LC Disbursements to any assignee or participant,
other than to any Borrower or any Subsidiary or Affiliate thereof (as to which
the provisions of this paragraph shall apply). Each 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 such Borrower rights of setoff and
counterclaim with respect to such participation as fully as if such Lender were
a direct creditor of such Borrower in the amount of such participation.
(d) Unless the Administrative Agent shall have received notice from a
Borrower prior to the date on which any payment is due from such Borrower to the
Administrative Agent for the account of the Lenders hereunder that such Borrower
will not make such payment, the Administrative Agent may assume that such
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 such 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, (i) if the relevant
amount is denominated in Pounds Sterling, at the Pound Sterling Overnight Rate
(ii) if the relevant amount is denominated in Dollars, at the Federal Funds
Effective Rate and (iii) if the relevant amount is denominated in any other
Currency, at the interest rate reasonably determined by the Administrative Agent
as the rate applicable for overnight settlements between banks for the amount
paid by the Administrative Agent on behalf of such Borrower.
(e) If any Lender shall fail to make any payment required to be made by it
pursuant to Section 2.04(c), 2.06(b) or 2.17(d), then the Administrative Agent
may, in its discretion (notwithstanding any contrary provision hereof), apply
any amounts thereafter received by the Administrative Agent for the account of
such Lender from or on behalf of any Credit Party or otherwise in respect of the
Obligations to satisfy such Lender's obligations under such Sections until all
such unsatisfied obligations are fully paid.
SECTION 2.18. Mitigation Obligations; Replacement of Lenders.
(a) If any Lender requests compensation under Section 2.14, or if any
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.
Such 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 any
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 AOLTW 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) AOLTW shall have received the prior
written consent of the Administrative Agent (and, if a Commitment is being
assigned, the Swingline Lender and the Issuing Bank), which consent shall, in
each case, not unreasonably be withheld, (ii) such Lender shall have received
payment of an amount equal to the outstanding principal of its Loans,
participations in LC Disbursements and Swingline 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 Borrowers (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 Borrowers 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 AOLTW to require such assignment and delegation cease to
apply.
SECTION 2.19. Prepayments Required Due to Currency Fluctuation.
(a) Not later than 1:00 p.m., New York City time, on the last Business Day
of each fiscal quarter of AOLTW or at such other time as is reasonably
determined by the Administrative Agent (the "Calculation Time"), the
Administrative Agent shall determine the Dollar Equivalent of the total
Revolving Credit Exposures outstanding as of such date.
(b) If at the Calculation Time, the Dollar Equivalent of the total
Revolving Credit Exposures exceeds the total Commitments then in effect by 5% or
more, then within five Business Days of notice to the Borrowers thereof, the
applicable Borrowers shall prepay Swingline Loans or Revolving Loans or cash
collateralize the outstanding Letters of Credit in an aggregate principal amount
at least equal to such excess. Nothing set forth in this Section 2.19(b) shall
be construed to require the Administrative Agent to calculate compliance under
this Section 2.19(b) other than at the times set forth in Section 2.19(a).
(c) If at the Calculation Time, the Dollar Equivalent of the total Yen
Loans exceeds the total Yen Commitments then in effect by 5% or more, then
within five Business Days of notice to the Borrowers thereof, the applicable
Borrowers shall prepay Yen Loans in an aggregate principal amount at least equal
to such excess. Nothing set forth in this Section 2.19(c) shall be construed to
require the Administrative Agent to calculate compliance under this Section
2.19(c) other than at the times set forth in Section 2.19(a).
SECTION 2.20. Adoption of the Euro. Each provision of this Agreement shall
be subject to such reasonable changes of construction as the Administrative
Agent may from time to time specify to be appropriate to reflect the adoption of
the Euro in any Participating Member State and any relevant market conventions
or practices relating to the Euro. Each obligation under this Agreement of a
party to this Agreement which has been denominated in the National Currency Unit
of a Subsequent Participant shall be redenominated into the Euro in accordance
with EMU Legislation immediately upon such Subsequent Participant becoming a
Participating Member State (but otherwise in accordance with EMU Legislation).
If, in relation to the currency of any Subsequent Participant, the basis of
accrual of interest or fees expressed in this Agreement with respect to such
currency shall be inconsistent with any convention or practice in the interbank
market for the basis of accrual of interest or fees in respect of the Euro, such
convention or practice shall replace such expressed basis effective as of and
from the date on which such Subsequent Participant becomes a Participating
Member State; provided, that if any Loan in the currency of such Subsequent
Participant which is subject to an Interest Period is outstanding immediately
prior to such date, such replacement shall take effect, with respect to such
Loan, at the end of the then current Interest Period.
SECTION 2.21. Termination of Certain Borrowers. AOLTW may elect by written
notice to the Administrative Agent to terminate the status of TWE or TWEAN as a
Borrower under the Facilities; provided that at the time of such election TWE or
TWEAN, as the case may be, is not obligated in respect of any outstanding Loans
(including, without limitation, any Swingline Loans) or any Letters of Credit
under either of the Facilities. Upon the receipt by the Administrative Agent of
such notice of termination, AOLTW may designate such terminated Borrower as an
Unrestricted Subsidiary in accordance with the requirements set forth in Section
6.08. Upon the termination of TWE or TWEAN, as the case may be, as a Borrower
hereunder pursuant to this Section, any Guarantees of the Obligations of such
Borrower shall terminate without any further action.
ARTICLE III
Representations and Warranties
Each Borrower represents and warrants (as to itself and its Restricted
Subsidiaries) to the Lenders that:
SECTION 3.01. Organization; Powers. Each Credit Party and each of its
Restricted Subsidiaries is duly organized, validly existing and in good standing
under the laws of the jurisdiction of its organization, has all requisite power
and authority to carry on its business as now conducted and, except where the
failure to do so, individually or in the aggregate, could not reasonably be
expected to result in a Material Adverse Effect, is qualified to do business in,
and is in good standing in, every jurisdiction where such qualification is
required.
SECTION 3.02. Authorization; Enforceability. The Transactions are within
the Credit Parties' 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 Parties.
Each Credit Document (other than each Note) has been, and each Note when
delivered hereunder will have been, duly executed and delivered by the Credit
Parties 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 such Credit Party, 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 such Borrower or any of its
Restricted Subsidiaries 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 such Borrower or any of its Restricted Subsidiaries or
its assets, or give rise to a right thereunder to require any payment to be made
by such Borrower or any of its Restricted Subsidiaries and (d) will not result
in the creation or imposition of any Lien on any asset of such Borrower or any
of its Restricted Subsidiaries; except, in each case (other than clause (b)(ii)
with respect to any Credit Party), 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
consolidated balance sheet and statements of income, stockholders equity and
cash flows (including the notes thereto) of (i) AOLTW as of and for the fiscal
year ended December 31, 2001, reported on by Ernst & Young LLP, independent
public accountants, (ii) TWE as of and for the fiscal year ended December 31,
2001, reported on by Ernst & Young LLP, independent accountants, and (iii) TWEAN
as of and for the fiscal year ended December 31, 2001, reported on by Ernst &
Young LLP, independent accountants, 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, respectively, of
AOLTW, TWE and TWEAN and their respective consolidated Subsidiaries, as of such
date and for such period, in accordance with GAAP.
(b) The unaudited consolidated balance sheets and statements of income,
stockholders equity and cash flows of (i) AOLTW and its consolidated
Subsidiaries as of and for the three months ended ▇▇▇▇▇ ▇▇, ▇▇▇▇, (▇▇) TWE and
its consolidated Subsidiaries as of and for the three months ended March 31,
2002, and (iii) TWEAN and its consolidated Subsidiaries as of and for the three
months ended March 31, 2002, 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 respectively of AOLTW, TWE and TWEAN,
and their respective consolidated Subsidiaries, as of such date and for such
period, in accordance with GAAP.
(c) Since December 31, 2001, there has been no material adverse change in
the business, assets, operations or financial condition of AOLTW and its
consolidated Subsidiaries, taken as a whole (excluding the write-down of
goodwill pursuant to the application of Financial Accounting Standard Board
Statement No. 142 disclosed to the Lenders prior to the Effective Date) or of
any other Borrower and its Restricted Subsidiaries, taken as a whole.
SECTION 3.05. Properties. (a) Such Borrower and each of its 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) Such Borrower and each of its 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 such
Borrower or any of its 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 Borrowers,
threatened against or affecting any Borrower or any of its 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 such Borrower nor any of its 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) no
Borrower has knowledge of any basis for any Environmental Liability on the part
of any of its Restricted Subsidiaries.
SECTION 3.07. Compliance with Laws and Agreements. Such Borrower and each
of its 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 such Borrower nor any of its
Restricted Subsidiaries is (a) an "investment company" as defined in, or subject
to regulation under, the Investment Company Act of 1940, (b) a "holding company"
as defined in, or subject to regulation under, the Public Utility Holding
Company Act of 1935, or (c) is subject to any other statute or regulation which
regulates the incurrence of indebtedness for borrowed money, other than, in the
case of this clause (c), 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. Such 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 such 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 date hereof and the Effective Date, all
information heretofore or contemporaneously furnished by or on behalf of such
Borrower or any of its Restricted Subsidiaries (including all information
contained in the Credit Documents, the Confidential Memorandum dated May 2002
and the annexes, schedules and other attachments thereto 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 any Credit Party since
December 31, 2001, 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 such Borrower or any of its
Restricted Subsidiaries to or on behalf of any Lender is and will be (as of
their respective dates and the Effective Date), true and accurate in all
material respects and not incomplete by omitting to state a material fact to
make such information not misleading at such time. There is no fact of which
such Borrower or any Guarantor 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
any Borrower or any Guarantor 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 such 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. Effective Date. The effectiveness of this Agreement and the
obligations of the Lenders to make Loans and of the Issuing Bank to issue
Letters of Credit 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 Guarantees, executed and delivered by each of the
applicable Guarantors.
(b) Opinion of Counsel. The Administrative Agent shall have received
the favorable written opinions (addressed to the Administrative Agent and
the Lenders and dated the Effective Date) of (i) Cravath, Swaine & ▇▇▇▇▇,
counsel for the Credit Parties, (ii) in-house counsel to the Credit
Parties, and (iii) ▇▇▇▇▇▇ ▇▇▇, counsel to AOLTWFI, in each case in form and
substance reasonably satisfactory to the Administrative Agent. The Credit
Parties 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 Effective 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 any
Borrower, confirmation of compliance with the conditions set forth in
paragraphs (a) and (b) of Section 4.02.
(d) Fees. The Borrowers shall have paid all fees required to be paid
on or before the Effective Date by the Borrowers in connection with the
revolving credit facilities provided for in this Agreement.
(e) Termination of the Existing Credit Agreements. All Indebtedness
outstanding under the Existing Credit Agreements shall have been repaid or
concurrently repaid with proceeds of Loans on the Effective Date, together
with all interest thereon and other amounts owing in respect thereof, all
commitments thereunder shall have been cancelled and the Existing Credit
Agreements shall have been terminated.
(f) 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 the Credit Parties, this Agreement or
the Transactions, all in form and substance satisfactory to the
Administrative Agent and its counsel.
Notwithstanding the foregoing, (i) the obligations of the Lenders to make Loans
and of the Issuing Bank to issue Letters of Credit hereunder shall not become
effective unless each of the foregoing conditions is satisfied (or waived
pursuant to Section 9.02) at or prior to 3:00 p.m., New York City time, on
August 1, 2002 (and, in the event such conditions are not so satisfied or
waived, the Commitments shall terminate at such time) and (ii) all conditions
set forth above with respect to the TWE Partner Guarantee, the Paragon Guarantee
and the Paragon Partner Guarantee and the related Guarantors shall not be
required to be satisfied until 60 days after the Effective Date, and provided,
further, that legal opinions of local counsel shall not be required with respect
to any such Guarantors.
SECTION 4.02. Each Credit Event. The obligation of each Lender to make a
Loan on the occasion of any Borrowing, and of the Issuing Bank to issue, amend,
renew or extend any Letter of Credit, is subject to the satisfaction of the
following conditions:
(a) The representations and warranties of the Credit Parties set forth
in the Credit Documents (other than those set forth in Sections 3.04(c),
3.06 and 3.10 on any date other than the Effective Date) shall be true and
correct in all material respects on and as of the date of such Borrowing or
the date of issuance, amendment, renewal or extension of such Letter of
Credit, as applicable.
(b) At the time of and immediately after giving effect to such
Borrowing or the issuance, amendment, renewal or extension of such Letter
of Credit, as applicable, no Default or Event of Default shall have
occurred and be continuing.
Each Borrowing and each issuance, amendment, renewal, or extension of a Letter
of Credit shall be deemed to constitute a representation and warranty by the
Credit Parties on the date thereof as to the applicable matters specified in
paragraphs (a) and (b) of this Section.
ARTICLE V
Affirmative Covenants
Until all 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 (but with respect to such other
Obligations only to the extent that actual amounts hereunder are owing at the
time the Loans, together with interest and fees, have been paid in full) and all
Letters of Credit shall have expired or terminated and all LC Disbursements
shall have been reimbursed, each Borrower (for itself and its Restricted
Subsidiaries) covenants and agrees with the Lenders that:
SECTION 5.01. Financial Statements and Other Information. AOLTW, TWE and
TWEAN (but in the case of TWE and TWEAN only for so long as such entity is a
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 such Person,
its audited consolidated balance sheet and related statements of
operations, stockholders' equity (or partnership capital) and cash flows as
of the end of and for such year and, with respect to AOLTW only, its
unaudited Adjusted Financial Statements for such fiscal year, setting forth
in each case in comparative form the figures for the previous fiscal year,
and, (i) in the case of the audited financial statements, reported on by
Ernst & Young LLP or other independent public accountants of recognized
national standing (without a "going concern" or like qualification or
exception and without any qualification or exception as to the scope of
such audit) to the effect that such consolidated financial statements
present fairly in all material respects the financial condition and results
of operations of such Person and its consolidated Subsidiaries on a
consolidated basis in accordance with GAAP consistently applied and (ii) in
the case of the Adjusted Financial Statements, certified by one of AOLTW's
Financial Officers as presenting fairly in all material respects the
financial condition and results of operations of AOLTW and its consolidated
Restricted Subsidiaries on a consolidated basis in accordance with GAAP
consistently applied; provided that, so long as no Event of Default has
occurred and is continuing, AOLTW shall not be required to furnish Adjusted
Financial Statements for any fiscal year if all Unrestricted Subsidiaries
of AOLTW (other than any such Unrestricted Subsidiaries that are already
treated as equity investments on AOLTW's financial statements) on a
combined basis would not have constituted a Material Subsidiary of AOLTW
for such fiscal year;
(b) within 60 days after the end of each of the first three fiscal
quarters of each fiscal year of such Person, its consolidated balance sheet
and related statements of operations, stockholders' equity (or partnership
capital) and cash flows and, with respect to AOLTW only, its Adjusted
Financial Statements as of the end of and for such fiscal quarter and the
then elapsed portion of the fiscal year, setting forth in each case in
comparative form the figures for the corresponding period or periods of
(or, in the case of the balance sheet, as of the end of) the previous
fiscal year, all certified by one of AOLTW's Financial Officers as
presenting fairly in all material respects the financial condition and
results of operations of such Person and its consolidated Subsidiaries on a
consolidated basis in accordance with GAAP consistently applied, subject to
normal year-end audit adjustments and the absence of footnotes; provided
that, so long as no Event of Default has occurred and is continuing, AOLTW
shall not be required to furnish Adjusted Financial Statements for any
fiscal quarter if all Unrestricted Subsidiaries of AOLTW (other than any
such Unrestricted Subsidiaries that are already treated as equity
investments on AOLTW's financial statements) on a combined basis would not
have constituted a Material Subsidiary of AOLTW for such fiscal quarter;
(c) concurrently with any delivery of financial statements under
clause (a) or (b) above, a certificate of a Financial Officer of such
Person (i) certifying as to whether a Default has occurred and, if a
Default has occurred, specifying the details thereof and any action taken
or proposed to be taken with respect thereto, (ii) setting forth reasonably
detailed calculations demonstrating compliance with Sections 6.01, 6.02(a)
and 6.03(a) and (k) 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 and, if any such change has
occurred, specifying the effect of such change on the financial statements
accompanying such certificate;
(d) promptly after the same become publicly available, copies of all
periodic and other reports, proxy statements and other materials filed by
any Company with the SEC or with any national securities exchange, or
distributed by any Company to its security holders generally, as the case
may be (other than registration statements on Form S-8, filings under
Sections 16(a) or 13(d) of the Exchange Act and routine filings related to
employee benefit plans); and
(e) promptly following any request therefor, such other information
regarding the operations, business affairs and financial condition of such
Person 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 such Person 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) and
(d) shall be deemed to have been delivered on the date on which a 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 such Borrower's website on the internet at the website address listed
on the signature pages of such notice, at ▇▇▇.▇▇▇.▇▇▇ or at another website
identified in such notice and accessible by the Lenders without charge; provided
that a Borrower shall deliver paper copies of the reports and financial
statements referred to in paragraphs (a), (b) and (d) of this Section 5.01 to
the Administrative Agent or any Lender who requests such Borrower to deliver
such paper copies until written notice to cease delivering paper copies is given
by the Administrative Agent or such Lender.
SECTION 5.02. Notices of Material Events. Such 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 such Borrower:
(a) the occurrence of any Default;
(b) the filing or commencement of any action, suit or proceeding by or
before any arbitrator or Governmental Authority against or affecting any
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 AOLTW 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 such 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. Such Borrower will, and will
cause each of its 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. Such Borrower will, and will cause
each of its 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) such 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. Such Borrower will, and
will cause each of its 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. Such Borrower will, and
will cause each of its 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. Such Borrower will, and
will cause each of its Restricted Subsidiaries to, permit any representatives
designated by the Administrative Agent or any Lender, upon reasonable prior
notice, to visit and inspect its properties, to examine its books and records,
and to discuss its affairs, finances and condition with its officers and, so
long as a representative of such Borrower is present, or such Borrower has
consented to the absence of such a representative, independent accountants (in
each case subject to such Borrower's or its Restricted Subsidiaries' obligations
under applicable confidentiality provisions), all at such reasonable times and
as often as reasonably requested.
SECTION 5.07. Compliance with Laws. Such Borrower will, and will cause each
of its 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 only
for general corporate or partnership (as applicable) purposes, including the
repayment of indebtedness of existing and future Subsidiaries of any of the
Borrowers and for commercial paper backup. 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. Such Borrower will keep the same
financial reporting periods as are in effect on the date hereof.
ARTICLE VI
Negative Covenants
Until all the Commitments have expired or terminated and the principal of
and interest on each Loan, all fees payable hereunder and all other Obligations
have been paid in full (but with respect to such other Obligations only to the
extent that actual amounts hereunder are owing at the time the Loans, together
with interest and fees, have been paid in full) and all Letters of Credit shall
have expired or terminated and all LC Disbursements shall have been reimbursed,
each Borrower covenants and agrees (for itself and its Restricted Subsidiaries)
with the Lenders that:
SECTION 6.01. Financial Covenants.
(a) The Consolidated Leverage Ratio of AOLTW and its Restricted
Subsidiaries as of the last day of any fiscal quarter of AOLTW (commencing
with the first fiscal quarter ending after the Effective Date) will not
exceed 4.50 to 1.00.
(b) The Consolidated Net Worth of AOLTW at any time will not be less
than $50,000,000,000.
(c) At such times as TWE is a Restricted Subsidiary, the Consolidated
Leverage Ratio of TWE and its Restricted Subsidiaries as of the last day of
any fiscal quarter of TWE (commencing with the first fiscal quarter ending
after the Effective Date) will not exceed 5.00 to 1.00.
(d) At such times as TWEAN is a Restricted Subsidiary, the
Consolidated Leverage Ratio of TWEAN and its Restricted Subsidiaries as of
the last day of any fiscal quarter of TWEAN (commencing with the first
fiscal quarter ending after the Effective Date) will not exceed 5.00 to
1.00.
SECTION 6.02. Indebtedness. AOLTW will not permit any of its Restricted
Subsidiaries (other than a Credit Party or the consolidated Subsidiaries of TWE)
to, create, incur, assume or permit to exist any Indebtedness, except:
(a) with respect to all such Restricted Subsidiaries, Indebtedness of
up to an aggregate principal amount of $1,500,000,000 at any time
outstanding;
(b) Indebtedness of any such Restricted Subsidiary to a Borrower or
any Subsidiary;
(c) Guarantee Obligations of any such Restricted Subsidiary with
respect to Indebtedness of a Borrower or any wholly owned Restricted
Subsidiary;
(d) Indebtedness of any such Restricted Subsidiary incurred to finance
the acquisition, construction or improvement of any property, including
Capital Lease Obligations and any Indebtedness assumed in connection with
the acquisition of any such property or secured by a Lien on any such
property prior to the acquisition thereof, and extensions, renewals and
replacements of any such Indebtedness that do not increase the outstanding
principal amount thereof; provided that the aggregate principal amount of
Indebtedness permitted by this clause (d) with respect to any such property
shall not exceed 110% of the purchase price for, or the cost of
construction or improvement of, such property;
(e) Indebtedness of any Person that becomes a Restricted Subsidiary
after the date hereof; provided that (x) such Indebtedness exists at the
time such Person becomes a Subsidiary and is not created in contemplation
of or in connection with such Person becoming a Subsidiary and (y) such
Indebtedness does not, directly or indirectly, have recourse (including by
way of setoff) to AOLTW or any of its Restricted Subsidiaries or any asset
thereof other than to the Person so acquired and its Subsidiaries and the
assets of the Person so acquired and its Subsidiaries; and
(f) Film Financings.
SECTION 6.03. Liens. Such Borrower will not, and will not permit any of its
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 AOLTW or any Subsidiary
existing on the date hereof; provided, that such Lien shall secure only
those obligations which it secures on the date hereof and extensions,
renewal and replacements thereof that do not increase the outstanding
principal amount thereof and such Liens do not secure an aggregate
principal amount of Indebtedness in excess of $200,000,000 or apply to
property or assets of AOLTW and its Restricted Subsidiaries in excess of
$200,000,000;
(b) any Lien existing on any property or asset prior to the
acquisition thereof by any 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 any 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 any
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 any Borrower or any
of its Subsidiaries;
(d) Liens to secure Film Financings; provided that such Liens shall
extend only to the property or assets acquired with such Film Financing;
(e) Liens on Capital Stock of AOLTW and proceeds therefrom supporting
Stock Option Loans to the extent contemplated by the definition thereof;
(f) any Copyright Liens securing obligations specified in the
definition thereof;
(g) Liens securing Indebtedness of any Borrower or any Restricted
Subsidiary and owing to such Borrower or to a Restricted Subsidiary of such
Borrower;
(h) Liens on interests in or investments in any Unrestricted
Subsidiary or in any other Person that is not a Subsidiary of AOLTW
securing Indebtedness of such Unrestricted Subsidiary or such other Person;
(i) 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;
(j) Liens incidental to the ordinary conduct of such 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
(k) other Liens in respect of property or assets of AOLTW 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
AOLTW 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. Such Borrower will not, and will not permit any
of its 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 such Borrower's consolidated
assets, or all or a substantial portion of the stock of all of its 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 such Borrower and its Restricted Subsidiaries
shall not have been altered in a fundamental and substantial manner from that
conducted by them, taken as a whole, immediately prior to the Effective Date,
provided that (i) a Borrower shall not merge into or consolidate with such other
Person, unless such Borrower shall survive such consolidation or merger, and
(ii) a Borrower shall not liquidate or dissolve or permit any Guarantor to
liquidate or dissolve except into such Borrower or another Guarantor.
SECTION 6.05. Investments. Such Borrower will not, and will not cause or
permit any of its 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. Such Borrower will not declare or make,
or agree to pay or make, directly or indirectly, any Restricted Payment, except
such 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. Such Borrower will not, and
will not permit any of its Restricted Subsidiaries to, directly or indirectly,
enter into any material transaction with any of its Affiliates, except (a)
transactions entered into prior to the date hereof or contemplated by any
agreement entered into prior to the date hereof, (b) in the ordinary course of
business or at prices and on terms and conditions not less favorable to such
Borrower or such Subsidiary than could be obtained on an arm's-length basis from
unrelated third parties, (c) transactions between or among such Borrower and its
Restricted Subsidiaries or between or among Restricted Subsidiaries, (d) any
arrangements with officers, directors, representatives or other employees of
such Borrower and its Subsidiaries relating specifically to employment as such
and (e) transactions that are otherwise permitted by this Agreement.
SECTION 6.08. Unrestricted Subsidiaries. (a) Schedule 6.08 sets forth those
Subsidiaries that have been designated as Unrestricted Subsidiaries as of the
date hereof, which Subsidiaries do not include any Guarantor or a Borrower. A
Borrower may designate any other of its Subsidiaries (other than a Borrower or a
Guarantor) as Unrestricted Subsidiaries from time to time in compliance with the
provisions of this Section 6.08. Such 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. It is understood and agreed that, notwithstanding anything in this
Agreement to the contrary, upon designation by AOLTW of TWE or TWEAN as an
Unrestricted Subsidiary in accordance with this Section 6.08 subsequent to
termination of its status as a Borrower in accordance with Section 2.21, for
purposes of determining compliance with the provisions of this Agreement and the
other Credit Documents, including the foregoing provisions of this Section 6.08,
all representations and warranties, conditions, covenants and/or Defaults to the
extent otherwise applicable to any such terminated Borrower but not applicable
to all Unrestricted Subsidiaries generally, shall thereafter be deemed
inapplicable with respect to such terminated Borrower until such time, if any,
as such terminated Borrower shall subsequently be designated or redesignated a
Restricted Subsidiary.
(b) A 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. Such 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) any Borrower shall fail to pay any principal of any Loan or any
reimbursement obligation in respect of any LC Disbursement 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) any 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 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) any Borrower shall fail to observe or perform any covenant,
condition or agreement contained in Section 5.02 or 5.03 (with respect to
such 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 any
Borrower;
(f) any 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 any Borrower or any Material Subsidiary of any
Borrower 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 any
Borrower or any Material Subsidiary of any Borrower 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) any Borrower or any Material Subsidiary of any Borrower 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 any Borrower or any Material Subsidiary of any Borrower or for
a substantial part of its assets, (iv) file an answer admitting the
material allegations of a petition filed against it in any such proceeding,
(v) make a general assignment for the benefit of creditors or (vi) take any
action for the purpose of effecting any of the foregoing;
(j) any Borrower or any Material Subsidiary of any Borrower 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 any Borrower,
any Material Subsidiary of any Borrower 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 any Borrower or any
Material Subsidiary of any Borrower 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 a 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, any of the
Guarantees shall cease, for any reason, to be in full force and effect or
any Credit Party shall so assert; or
(n) a Change in Control shall occur;
then, and in every such event (other than an event with respect to a Borrower
described in clause (h) or (i) of this Article), 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 AOLTW, 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 any Borrower accrued hereunder (including all
amounts of LC Exposure, whether or not the beneficiary of the then outstanding
Letters of Credit shall have presented the documents required therein), shall
become due and payable immediately, without presentment, demand, protest or
other notice of any kind, all of which are hereby waived by each Borrower; and
in case of any event with respect to any Borrower described in clause (h) or (i)
of this Article, the Commitments shall automatically terminate and the principal
of the Loans then outstanding, together with accrued interest thereon and all
fees and other obligations of any Borrower accrued hereunder (including all
amounts of LC Exposure, whether or not the beneficiary of the then outstanding
Letters of Credit shall have presented the documents required therein), shall
automatically become due and payable, without presentment, demand, protest or
other notice of any kind, all of which are hereby waived by each Borrower. With
respect to all Letters of Credit with respect to which presentment for honor
shall not have occurred at the time of an acceleration pursuant to this
paragraph, the applicable Borrower shall at such time deposit in a cash
collateral account opened by the Administrative Agent an amount equal to the
aggregate then undrawn and unexpired amount of such Letters of Credit. Amounts
held in such cash collateral account shall be applied by the Administrative
Agent to the payment of drafts drawn under such Letters of Credit, and the
unused portion thereof after all such Letters of Credit shall have expired or
been fully drawn upon, if any, shall be applied to repay other obligations of
the Borrowers hereunder and under the other Credit Documents, if any. The
Administrative Agent shall have exclusive dominion and control, including the
exclusive right of withdrawal, over such account. Other than any interest earned
on the investment of such deposits, which investments shall be made in Cash
Equivalents, or upon mutual consent of the Borrowers and the Administrative
Agent, any other investment (in each case at the Borrowers' risk and expense),
such deposits shall not bear interest. Interest or profits, if any, on such
investments shall accumulate in such account. After all such Letters of Credit
shall have expired or been fully drawn upon, all reimbursement obligations shall
have been satisfied and all other obligations of the Borrowers hereunder and
other the other Credit Documents shall have been paid in full, the balance, if
any, in such cash collateral account shall be returned to the Borrowers (or such
other Person as may be lawfully entitled thereto).
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 and generally engage in any kind of business with
any Company or Affiliate thereof as if it were not an Agent hereunder.
The Administrative Agent shall not have any duties or obligations except
those expressly set forth herein. 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 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,
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 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 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
any 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 Document, (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 believed by it to be genuine
and to have been signed or sent by a proper Person. An initial list of the
proper Persons with respect to the Borrowers 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 such Borrower in accordance with Section 2.03). The
Administrative Agent may consult with legal counsel (who may be counsel for the
Borrowers), 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 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 Borrowers. Upon any such resignation, the
Required Lenders shall have the right, in consultation with the Borrowers, to
appoint a successor which, so long as no Event of Default is continuing, shall
be reasonably acceptable to the Borrowers. 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 Administrative Agent, and the retiring
Administrative Agent shall be discharged from its duties and obligations
hereunder. The fees payable by the Borrowers to a successor Administrative Agent
shall be the same as those payable to its predecessor unless otherwise agreed
between the Borrowers and such successor. 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 Borrowers and without limiting the obligation of
the Borrowers to do so), ratably according to their Commitments in effect (or at
any time after the Commitments have terminated, their Revolving Credit Exposure)
on the date on which indemnification is sought under this Section (or, if
indemnification is sought after the date upon which the Commitments shall have
terminated and the Loans shall have been paid in full, ratably in accordance
with their Commitments (or, if the Commitments have terminated earlier, their
Revolving Credit Exposures) 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 Section 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.
The Co-Syndication Agents and Co-Documentation Agents shall not have any
duties or responsibilities hereunder in their capacity as such.
ARTICLE IX
Miscellaneous
SECTION 9.01. Notices. 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:
(a) if to AOLTW, TWE or TWEAN, to it at ▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention of Chief Financial Officer (Facsimile No.
(▇▇▇) ▇▇▇-▇▇▇▇), with copies to its General Counsel (Facsimile No. (212)
258-3172), and its Treasurer (Facsimile No. (▇▇▇) ▇▇▇-▇▇▇▇);
(b) if to AOLTWFI, to it at ▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇,
Attention of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ (Facsimile No. 353-1-622-2222), with a copy
to AOLTW as specified above;
(c) if to the Administrative Agent, to JPMorgan Chase Bank, Agent Bank
Services Group, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇,
Attention of ▇▇▇▇▇ ▇▇▇▇▇▇ (Facsimile No. 212-552-5658), with a copy to (i)
JPMorgan Chase Bank, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention
of ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ (Facsimile No. 212-270-4164); (ii) in the case of a
Eurocurrency Borrowing, JPMorgan Chase Bank, London Branch, ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇, Attention of ▇▇▇▇▇ ▇▇▇▇▇▇ (Facsimile No.
▇▇-▇▇-▇▇▇▇-▇▇▇▇); and (iii) in the case of a Yen Loan, JPMorgan Chase Bank,
Tokyo Branch, ▇-▇-▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇-▇▇, ▇▇▇▇▇ ▇▇▇-▇▇▇▇ ▇▇▇▇▇, Attention
of ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Banking Service Operations (Facsimile No.
813-5570-7539);
(d) if to a Swingline Lender, to it as may be provided by such
Swingline Lender from time to time;
(e) if to an Issuing Bank, to it as may be provided by such Issuing
Bank from time to time; and
(f) 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.
SECTION 9.02. Waivers; Amendments. (a) No failure or delay by the
Administrative Agent, the Issuing Bank 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, the Issuing Bank 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 any 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 or issuance of a Letter of Credit shall not be
construed as a waiver of any Default, regardless of whether the Administrative
Agent, the Issuing Bank 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 Borrowers and the Required Lenders or by the Borrowers and the
Administrative Agent with the consent of the Required Lenders; provided that no
such agreement shall (i) increase the Commitment of any Lender without the
written consent of such Lender, (ii) reduce the principal amount of any Loan or
reduce the rate of interest thereon, or reduce any fees payable hereunder,
without the written consent of each Lender affected thereby, (iii) postpone the
scheduled date of payment of the principal amount of any Loan, or any interest
thereon, or any fees payable hereunder, or reduce the amount of, waive or excuse
any such payment, or postpone the scheduled date of expiration of any
Commitment, without the written consent of each Lender affected thereby, (iv)
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 under the Primary Guarantee without the written consent of
each Lender, or (vi) 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, the Issuing Bank or the Swingline Lender hereunder without the prior
written consent of the Administrative Agent, the Issuing Bank or the Swingline
Lender, as the case may be.
SECTION 9.03. Expenses; Indemnity; Damage Waiver. (a) AOLTW shall, or shall
cause the Borrowers to, 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, the Issuing Bank or the
Lenders, including the reasonable fees, charges and disbursements of any counsel
for the Agents, the Issuing Bank 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 or
Letters of Credit issued hereunder, including in connection with any workout,
restructuring or negotiations in respect thereof, it being understood that the
Agents, the Issuing Bank and the Lenders shall use, and AOLTW 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) AOLTW shall, or shall cause the Borrowers to, indemnify each Agent,
each Issuing Bank 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 Letter of Credit or the use
of, or the proposed use of, the proceeds therefrom (including any refusal by the
Issuing Bank to honor a demand for payment under a Letter of Credit if the
documents presented in connection with such demand do not strictly comply with
the terms of such Letter of Credit), (iii) any actual or alleged presence or
release of Hazardous Materials on or from any property owned or operated by any
Company, or any Environmental Liability related in any way to any Company, or
(iv) any actual or prospective claim, litigation, investigation or proceeding
relating to any of the foregoing, whether based on contract, tort or any other
theory and regardless of whether any Indemnitee is a party thereto; provided
that such indemnity shall not, as to any Indemnitee, be available to the extent
that such losses, claims, damages, liabilities or related expenses resulted from
the gross negligence or willful misconduct of such Indemnitee.
(c) To the extent that any of the Borrowers fail to pay any amount required
to be paid by them to the Administrative Agent, the Issuing Bank or the
Swingline Lender under paragraph (a) or (b) of this Section, each Lender
severally agrees to pay to the Administrative Agent, the Issuing Bank or the
Swingline Lender, as the case may be, 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, the
Issuing Bank or the Swingline Lender in its capacity as such.
(d) To the extent permitted by applicable law, no Borrower shall assert,
and each 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 (including any Affiliate of
the Issuing Bank that issues any Letter of Credit), except that no Credit Party
may 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 such Credit Party
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
(including any Affiliate of the Issuing Bank that issues any Letter of Credit)
and, to the extent expressly contemplated hereby, the Related Parties of each of
the Administrative Agent, the Issuing Bank 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
assignees all or a portion of its rights and obligations under this Agreement
(including all or a portion of its Commitment and the Loans at the time owing to
it); provided that (i) except in the case of an assignment to a Lender or a
Lender Affiliate, each of AOLTW and the Administrative Agent and (a) the
Swingline Lender (but only in the case of an assignment of all or a portion of a
Commitment in respect of Swingline Exposure) or (b) the Issuing Bank (but only
in the case of an assignment of all or a portion of a Commitment in respect of
LC Exposure) 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 Commitment, each assignment
shall not be less than an aggregate principal amount of $15,000,000, (iii)
except in the case of an assignment to a Lender or an Affiliate of a Lender or
an assignment of the entire remaining balance of the assigning Lender's
Commitment, the remaining amount of the Commitment of the assigning Lender after
giving effect to such assignment shall not be less than $15,000,000 unless, in
the case of clauses (ii) or (iii), each of AOLTW and the Administrative Agent
otherwise consents, (iv) each partial assignment shall be made as an assignment
of a proportionate part of all the assigning Lender's rights and obligations
under this Agreement, (v) except in the case of an assignment to an Affiliate of
the assigning Lender on or about the Effective Date, the parties to each
assignment shall execute and deliver to the Administrative Agent an Assignment
and Acceptance, together with a processing and recordation fee of $3,500 (which
fee shall be sufficient to record an assignment under both Facilities), and (vi)
the assignee, if it shall not be a Lender, shall deliver to the Administrative
Agent an Administrative Questionnaire; provided further that any consent of
AOLTW 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 any 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
Borrowers, 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 and LC Disbursements 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 Borrowers, the Administrative Agent,
the Issuing Bank 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 any
Borrower, the Administrative Agent or the Swingline Lender, 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 Borrowers, the Administrative
Agent and the other Lenders shall continue to deal solely and directly with such
Lender in connection with such Lender's rights and obligations under this
Agreement. Any agreement or instrument pursuant to which a Lender sells such a
participation shall provide that such Lender shall retain the sole right to
enforce this Agreement and to approve any amendment, modification or waiver of
any provision of this Agreement; provided that such agreement or instrument may
provide that such Lender will not, without the consent of the Participant, agree
to any amendment, modification or waiver described in the first proviso to
Section 9.02(b) that affects such Participant. Subject to paragraph (f) of this
Section, each 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 Borrowers'
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
Borrowers are notified of the participation sold to such Participant and such
Participant agrees, for the benefit of the Borrowers, 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) Each 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) Each 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
and issuance of any Letters of Credit, regardless of any investigation made by
any such other party or on its behalf and notwithstanding that the
Administrative Agent or any Lender may have had notice or knowledge of any
Default or incorrect representation or warranty at the time any credit is
extended hereunder, and shall continue in full force and effect as long as the
principal of or any accrued interest on any Loan or any fee or any other amount
payable under this Agreement is outstanding and unpaid and so long as the
Commitments have not expired or terminated. The provisions of Sections 2.14,
2.15, 2.16 and 9.03 and Article VIII shall survive and remain in full force and
effect regardless of the consummation of the transactions contemplated hereby,
the repayment of the Loans, the expiration or termination of the Commitments or
the termination of this Agreement or any provision hereof.
SECTION 9.06. Counterparts; Integration; Effectiveness. This Agreement may
be executed in counterparts (and by different parties hereto on different
counterparts), each of which shall constitute an original, but all of which when
taken together shall constitute a single contract. This Agreement and any
separate letter agreements with respect to fees payable to the Lenders
constitute the entire contract among the parties relating to the subject matter
hereof and supersede any and all previous agreements and understandings, oral or
written, relating to the subject matter hereof. Except as provided in Section
4.01, this Agreement shall become effective when it shall have been executed by
the Administrative Agent and when the Administrative Agent shall have received
counterparts hereof which, when taken together, bear the signatures of each of
the other parties hereto, and thereafter shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and assigns.
Delivery of an executed counterpart of a signature page of this Agreement by
facsimile shall be effective as delivery of a manually executed counterpart of
this Agreement.
SECTION 9.07. Severability. Any provision of this Agreement held to be
invalid, illegal or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such invalidity, illegality or
unenforceability without affecting the validity, legality and enforceability of
the remaining provisions hereof; and the invalidity of a particular provision in
a particular jurisdiction shall not invalidate such provision in any other
jurisdiction.
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 and other indebtedness at any time owing by such Lender to or for the
credit or the account of any of the Credit Parties (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 any of
the Credit Parties 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) Each Credit Party hereby irrevocably and unconditionally submits, for
itself and its property, to the exclusive jurisdiction of the Supreme Court of
the State of New York sitting in New York County and of the United States
District Court of the Southern District of New York, and any appellate court
from any thereof, in any action or proceeding arising out of or relating to the
Credit Documents, or for recognition or enforcement of any judgment, and each of
the parties hereto hereby irrevocably and unconditionally agrees that all claims
in respect of any such action or proceeding shall be heard and determined in
such New York State or, to the extent permitted by law, in such Federal court.
Each of the parties hereto agrees that a final judgment in any such action or
proceeding shall be conclusive and may be enforced in other jurisdictions by
suit on the judgment or in any other manner provided by law.
(c) Each Credit Party 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, (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,
AOLTW 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 Borrowers 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 AOLTW or (h) to the extent such Information (i) becomes publicly
available other than as a result of a breach of this Section or (ii) becomes
available to the Administrative Agent or any Lender on a nonconfidential basis
from a source other than the Borrowers. For the purposes of this Section,
"Information" means all information received from one or more of the Borrowers,
whether oral or written, relating to the Borrowers or their business, other than
any such information that is available to the Administrative Agent or any Lender
on a nonconfidential basis prior to disclosure by one or more of the Borrowers;
provided that, in the case of information received from one or more of the
Borrowers 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. Each 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 duty to any 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 Borrowers, 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 Borrowers and the Lenders.
SECTION 9.14. Judgment Currency. If, for the purposes of obtaining judgment
in any court, it is necessary to convert a sum due hereunder or under any other
Credit Document in one currency into another currency, the rate of exchange used
shall be that at which in accordance with normal banking procedures the
Administrative Agent could purchase the first currency with such other currency
on the Business Day preceding that on which final judgment is given. The
obligation of each of the applicable Borrowers in respect of any such sum due
from it to either the Administrative Agent or any Lender hereunder or under any
other Credit Document shall, notwithstanding any judgment in a currency (the
"Judgment Currency") other than that in which such sum is denominated in
accordance with the applicable provisions of this Agreement (the "Agreement
Currency"), be discharged only to the extent that on the Business Day following
receipt by the Administrative Agent or such Lender of any sum adjudged to be so
due in the Judgment Currency, the Administrative Agent or such Lender may in
accordance with normal banking procedures in the relevant jurisdiction purchase
the Agreement Currency with the Judgment Currency; if the amount of the
Agreement Currency so purchased is less than the sum originally adjudged to be
due to the Administrative Agent or such Lender in the Agreement Currency (as
converted on the date of final judgment), the Borrowers agree, jointly and
severally, as a separate obligation and notwithstanding any such judgment, to
indemnify the Administrative Agent or such Lender against such loss. If the
amount of the Agreement Currency so purchased is greater than the sum originally
adjudged to be due to the Administrative Agent or such Lender in such currency,
the Administrative Agent or such Lender agrees to return the amount of any
excess to the Borrowers (or to any other Person who may be entitled thereto
under applicable law). The obligations of the Borrowers contained in this
Section 9.14 shall survive the termination of this Agreement and the payment of
all other amounts owing hereunder.
SECTION 9.15. Loans to Borrowers Separate Credit Facility. Notwithstanding
anything to the contrary, the parties hereto acknowledge and agree that (a) the
Commitments being provided hereunder are set forth in a single agreement for
convenience only, and the Loans and other extensions of credit to each of the
Borrowers are to be considered by the parties hereto as being made under a
separate credit facility for each Borrower and (b) the obligations of the
Borrowers under this Agreement are several and not joint except as otherwise
explicitly provided in this Agreement.
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.
AOL TIME WARNER INC.
By
--------------------------
Name:
Title
TIME WARNER ENTERTAINMENT
COMPANY, L.P.
By
--------------------------
Name:
Title:
TIME WARNER ENTERTAINMENT -
ADVANCE/▇▇▇▇▇▇▇▇ PARTNERSHIP
By
-------------------------
Name:
Title:
AOL TIME WARNER FINANCE
IRELAND
By
-------------------------
Name:
Title:
JPMORGAN CHASE BANK,
as Administrative Agent and
as a Lender,
By
-------------------------
Name:
Title:
BANK OF AMERICA, N.A.,
as Co-Syndication Agent and
as a Lender,
By
-------------------------
Name:
Title:
CITIBANK, N.A.,
as Co-Syndication Agent and
as a Lender,
By
-------------------------
Name:
Title:
ABN AMRO BANK N.V.,
as Co-Documentation Agent
and as a Lender,
By
-------------------------
Name:
Title:
BNP PARIBAS,
as Co-Documentation Agent
and as a Lender,
By
-------------------------
Name:
Title:
SCHEDULE 1.01
CALCULATION OF MANDATORY COST
The mandatory cost rate referred to in the definition of "Pound Sterling
Overnight Rate" and the "Pound Sterling Quoted Rate" in Section 1.01 of the
Credit Agreement will be the rate determined by the Administrative Agent
(rounded upward, if necessary, to four decimal places) in accordance with the
following formula (expressed as a percentage per annum):
CL + S(L - Z) + 0.01F
---------------------
100 - (C + S)
Where on the day of application of the formula:
C The amount required to be held as a non-interest bearing cash
ratio deposit with the Bank of England expressed as a
percentage of each of the Reference Bank's Eligible
Liabilities (above any stated minimum).
F The amount of Pound Sterling per (pound)1,000,000 of the fee
base of each Reference Bank payable to the Financial Services
Authority per annum (disregarding any minimum fee payable
under the Fees Regulations).
L The rate of interest per annum at which Pound Sterling
deposits of an amount comparable to the Borrowing or other
amount are offered by each Reference Bank to leading banks in
the London interbank market at or about 11:00 a.m. on the date
of calculation for a period comparable to the period for which
the Mandatory Cost is to be calculated; or
The Pound Sterling Overnight Rate for the relevant day as
calculated without taking into account the Mandatory Cost is
the rate of interest (less margin and the Mandatory Cost)
payable on that day on the related Borrowing pursuant to
clause Section 2.12 of this Agreement.
S The amount required to be placed as Special Deposits with the
Bank of England, expressed as a percentage of each of the
Reference Bank's Eligible Liabilities (above any stated
minimum).
Z The lower of L and the rate of interest per annum paid by the
Bank of England on Special Deposits at or about 11:00 a.m. on
the date of calculation.
For the purposes of calculating the Mandatory Cost:
(i) C, L, S and Z are included in the formula as numbers and not as
percentages, e.g. if C =0.15 percent and L = 7 percent, CL is calculated
at 0.15 x 7;
(ii) the formula is applied on the first day of each period for which it falls
to be calculated (and the result shall apply for the duration of such
period);
(iii) each amount is rounded up to the nearest four decimal places; and
(iv) if the formula produces a negative percentage, the percentage shall be
taken as zero.
If alternative or additional financial requirements are imposed by the Bank of
England, the Financial Services Authority or any other fiscal, monetary or
governmental authority or agency (including the European Central Bank) which in
the Administrative Agent's reasonable opinion make the above formula (or any
element thereof, or any defined term used therein) no longer appropriate, the
Administrative Agent (following consultation with the Borrowers and the Required
Lenders) shall be entitled by notice to the Borrowers to stipulate such other
formula as shall be suitable to apply in substitution for the above formulae.
Any such variation shall, in the absence of manifest error, be conclusive and
binding on all parties and shall apply from the date specified in such notice.
For the purposes of this Schedule:
"Bank of England Act" means the Bank of ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇;
"Eligible Liabilities" has the meaning given to that term in
the Cash Ratio Deposits (Eligible Liabilities) Order 1998 or
the applicable substitute order made under the Bank of
England Act as in force on the date of application of the
formula;
"Fee Base" has the meaning given to that term in the Fees
Regulations;
"Fees Regulations" means the Banking Supervision (Fees)
Regulations 2001 or the applicable substitute regulations
made under the Bank of England Act as are in force on the
date of application of the formula; and
"Special Deposits" has the meaning given to that term by the
Bank of England on the date of application of the formula.
Any reference to a provision of any statute, directive, order or regulation
herein is a reference to that provision as amended or re-enacted from time to
time.
SCHEDULE 2.03(A)
--------------- ----------------------------------- -----------------------
Loan Type: A borrowing notice (pursuant and Prepayment notice
subject to Section 2.03 or Section (pursuant to Section
2.04, as applicable) or an interest 2.10) must be given
election (pursuant to Section 2.07) not later than:
must be given not later than:
--------------- ----------------------------------- -----------------------
REVOLVING LOANS
--------------- ----------------------------------- -----------------------
Any Eurocurrency 11:00 am New York City time three 12:00 pm New York City
Borrowing (3) Business Days before the date time three (3) Business
of the proposed Borrowing. Days before the date of
prepayment.
--------------- ---------------------------------- -----------------------
Alternative Base 10:00 am New York City time on the 12:00 pm New York City
Rate Borrowing day of the proposed Borrowing. time one (1) Business
Day before the date of
prepayment.
--------------- ----------------------------------- -----------------------
Pound Sterling 10:00 am London time one (1) 12:00 pm London time
Overnight Rate Business Day before the date of the one (1) Business Day
Borrowing proposed Borrowing. before the date of
prepayment.
--------------- ----------------------------------- -----------------------
Euro Overnight 10:00 am London time on the day of 12:00 pm London time
Rate Borrowing the proposed Borrowing (subject to one (1) Business Day
the limitation in Section 2.03). before the date of
prepayment.
--------------- ----------------------------------- -----------------------
TIBOR Borrowing 11:00 am Tokyo time three (3) 12:00 pm Tokyo time
Business Days before the date of three (3) Business Days
the proposed Borrowing. before the date of
prepayment.
--------------- ----------------------------------- -----------------------
SWINGLINE LOANS
---------------- ----------------------------------- -----------------------
Alternative Base 2:00 pm New York City time on the
Rate Borrowing day of the proposed Borrowing.
---------------- ----------------------------------- -----------------------
Pound Sterling 10:00 am London time on the day of 12:00 pm London time
Overnight Rate the proposed Borrowing. one (1) Business Day
or Euro Overnight before the date of
Borrowing prepayment.
---------------- ----------------------------------- -----------------------
Pound Sterling 3:00 pm London time on the day of 12:00 pm London time
Quoted Rate or the proposed Borrowing. one (1) Business Day
Euro Quoted Rate before the date of
Borrowing prepayment.
---------------- ----------------------------------- -----------------------
SCHEDULE 6.08
Unrestricted Subsidiaries
1. AOL Canada, Inc.
2. AP Financing, Inc.
3. Astronaut Financing, Inc.
4. Atlanta Hawks, L. P.
5. Blade Financing, Inc.
6. Blast Financing, Inc.
7. Corruptor Financing, Inc.
8. DRC Financing, Inc.
9. Frequency Financing, Inc.
10. Invisible Financing, Inc.
11. LIS Financing, Inc.
12. LN Financing, Inc.
13. LOR Financing, Inc.
14. LS Financing, Inc.
15. Magnolia Avenue Financing, Inc.
16. NL Receivables LLC
17. Pleasantville Financing, Inc.
18. POG Financing, Inc.
19. Rush Hour Financing, Inc.
20. TAC Financing, Inc.
21. TBS Funding Corp.
22. Time Receivables Company LLC
23. TWE-NL Receivables LLC
24. TWE Receivable Trust I
25. TW Receivables, Inc.
26. ▇▇▇▇▇▇ Arena Operations, Inc.
27. WAG Financing, Inc.
PRIMARY GUARANTEE
PRIMARY GUARANTEE, dated as of July 8, 2002, made by AOL TIME WARNER INC.,
a Delaware corporation ("AOLTW"), AMERICA ONLINE, INC., a Delaware corporation
("AOL"), TIME WARNER INC., a Delaware Corporation ("Time Warner"), ▇▇▇▇▇▇
BROADCASTING SYSTEM, INC., a Georgia corporation ("TBS"), and TIME WARNER
COMPANIES, INC., a Delaware corporation ("TWCI") (each, a "Guarantor", and
collectively, the "Guarantors"), in favor of JPMORGAN CHASE BANK, as
administrative agent (in such capacity, the "Administrative Agent") for the
lenders (the "Lenders") parties to the FIVE-YEAR Credit Agreement, dated as of
July 8, 2002 (as amended, supplemented or otherwise modified from time to time,
the "Credit Agreement"), among AOLTW, TIME WARNER ENTERTAINMENT COMPANY, L.P.,
TIME WARNER ENTERTAINMENT-ADVANCE/▇▇▇▇▇▇▇▇ PARTNERSHIP, AOL TIME WARNER FINANCE
IRELAND ("AOLTWFI"), the Lenders, BANK OF AMERICA, N.A. and CITIBANK, N.A., as
co-syndication agents (in such capacity, the "Co-Syndication Agents"), ABN AMRO
BANK N.V. and BNP PARIBAS, as co-documentation agents (in such capacity, the
"Co-Documentation Agents") and the Administrative Agent.
W I T N E S S E T H:
WHEREAS, pursuant to the Credit Agreement, the Lenders have severally
agreed to make Loans and other extensions of credit to the Borrowers 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 and other extensions of credit to the Borrowers
under the Credit Agreement that the Guarantors shall have executed and delivered
this Guarantee to the Administrative Agent for the ratable benefit of the
Lenders; and
WHEREAS, each Guarantor is an affiliate of one or more of the Borrowers
under the Credit Agreement, and it is to the advantage of each Guarantor that
the Lenders make the Loans and other extensions of credit to the Borrowers 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 and other extensions of credit
to the Borrowers 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, "Designated Borrowers" means AOLTW and AOLTWFI.
(c) As used herein, "Obligations" means the collective reference to the
unpaid principal of and interest on the Loans and Reimbursement Obligations and
all other obligations and liabilities of each Designated 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 Reimbursement Obligations 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 either one or both of the Designated Borrowers
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, any Letter of Credit 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 either
one or both of the Designated Borrowers pursuant to the terms of the Credit
Agreement or any other Credit Document).
(d) As used herein, "Reimbursement Obligation" means the obligation of a
Designated Borrower to reimburse the Issuing Bank pursuant to Section 2.05(e) of
the Credit Agreement for amounts drawn under Letters of Credit.
(e) As used herein, "Time Warner Obligations" has the meaning assigned to
such term in Section 2(c) of this Guarantee.
(f) 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.
(g) 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 of AOL and Time Warner hereby, jointly and
severally, 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 Designated Borrowers when due (whether at the stated
maturity, by acceleration or otherwise) of the Obligations.
(b) AOLTW hereby, jointly and severally, 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 AOLTWFI when due (whether at the stated
maturity, by acceleration or otherwise) of the Obligations of AOLTWFI.
(c) Each of TBS and TWCI hereby, jointly and severally, 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 Time Warner when due (whether
at the stated maturity, by acceleration or otherwise) of its obligations and
liabilities under this Guarantee (the "Time Warner Obligations") including under
Section 2(a) hereof.
(d) This Guarantee shall remain in full force and effect until the
Obligations are paid in full, no Letter of Credit shall be outstanding (unless
such Letter of Credit is cash collateralized in accordance with Section 2.05(c)
of the Credit Agreement) and the Commitments are terminated, notwithstanding
that from time to time prior thereto either one or both of the Designated
Borrowers may be free from any Obligations.
(e) 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.
(f) 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 (after giving effect to the right of contribution
established in Section 3 hereof).
(g) No payment or payments made by either of the Designated Borrowers, any
of the Guarantors, any other guarantor or any other Person or received or
collected by the Administrative Agent or any Lender from either of the
Designated Borrowers, any of the Guarantors, any other guarantor or any other
Person by virtue of any action or proceeding or any setoff or appropriation or
payment of the Obligations shall be deemed to modify, reduce, release or
otherwise affect the liability of any Guarantor hereunder who shall,
notwithstanding any such payment or payments (other than payments made by such
Guarantor in respect of the Obligations or payments received or collected from
such Guarantor in respect of the Obligations), remain liable for the Obligations
and, in the case of TBS and TWCI, the Time Warner Obligations, up to the maximum
liability of such Guarantor hereunder until the Obligations are paid in full, no
Letter of Credit shall be outstanding (unless such Letter of Credit is cash
collateralized in accordance with Section 2.05(c) of the Credit Agreement) and
the Commitments are terminated.
3. Right of Contribution. Each Guarantor hereby agrees that to the extent
that a Guarantor shall have paid more than its proportionate share of any
payment made hereunder, such Guarantor shall be entitled to seek and receive
contribution from and against any other Guarantor hereunder who has not paid its
proportionate share of such payment. Each Guarantor's right of contribution
shall be subject to the terms and conditions of Section 5 hereof. The provisions
of this Section shall in no respect limit the obligations and liabilities of any
Guarantor to the Administrative Agent and the Lenders, and each Guarantor shall
remain liable to the Administrative Agent and the Lenders for the full amount
guaranteed by such Guarantor hereunder.
4. Right of Setoff. (a) Each of AOL and Time Warner hereby authorizes each
Lender at any time and from time to time when any amounts owed by either one or
both of the Designated Borrowers 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 and
other indebtedness at any time owing by such Lender to or for the credit or the
account of either AOL or Time Warner (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 AOL or Time
Warner, as applicable, 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 AOL and/or Time Warner, as
the case may be, 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.
(b) AOLTW hereby authorizes each Lender at any time and from time to time
when any amounts owed by AOLTWFI 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 and
other indebtedness at any time owing by such Lender to or for the credit or the
account of AOLTW (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 AOLTW 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 AOLTW 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.
(c) Each of TBS and TWCI hereby authorizes each Lender at any time and from
time to time when any amounts owed by Time Warner under this Guarantee 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 and other indebtedness at any time owing by such Lender to or for the
credit or the account of either TBS or TWCI (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 TBS or TWCI, as
applicable, 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 TBS and/or TWCI, as the case may
be, 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.
5. 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 either one or both of the
Designated Borrowers 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 or the Time Warner Obligations, nor shall any Guarantor seek or be
entitled to seek any contribution or reimbursement from either one or both of
the Designated Borrowers in respect of payments made by such Guarantor
hereunder, until all amounts owing to the Administrative Agent and the Lenders
by the Borrowers on account of the Obligations are paid in full, no Letter of
Credit shall be outstanding (unless such Letter of Credit is cash collateralized
in accordance with Section 2.05(c) of the Credit Agreement) 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.
6. 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
and any of the Time Warner Obligations made by the Administrative Agent or any
Lender may be rescinded by the Administrative Agent or such Lender, and any of
the Obligations and any of the Time Warner Obligations continued, (b) the
Obligations and/or the Time Warner 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 and/or the
Time Warner 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.
7. Guarantee Absolute and Unconditional. Each Guarantor waives any and all
notice of the creation, renewal, extension or accrual of any of the Obligations
and/or any of the Time Warner 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 either one or
both of the Designated Borrowers 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 either one or both of the
Designated Borrowers or any Guarantor with respect to the Obligations or the
Time Warner 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 the Time Warner 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 either
one or both of the Designated Borrowers 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 either one or both of the Designated
Borrowers or any Guarantor) which constitutes, or might be construed to
constitute, an equitable or legal discharge of either one or both of the
Designated Borrowers from the Obligations or of Time Warner from the Time Warner
Obligations, or of such Guarantor 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 either
Designated Borrower, any other Guarantor or any other Person or against any
collateral security or guarantee for the Obligations or the Time Warner
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 either Designated Borrower,
any such other Guarantor 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 either Designated Borrower, any such other Guarantor 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.
8. 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 or any of the Time Warner 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
either one or both of the Designated Borrowers or Time Warner or upon or as a
result of the appointment of a receiver, intervenor or conservator of, or
trustee or similar officer for, either one or both of the Designated Borrowers
or Time Warner or any substantial part of either Designated Borrower's or Time
Warner's property, or otherwise, all as though such payments had not been made.
9. Payments. Each Guarantor hereby agrees that payments hereunder will be
paid to the Administrative Agent without setoff or counterclaim in the
applicable Currency at the office of the Administrative Agent located at ▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ or to such other office as
designated by the Administrative Agent.
10. 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 Borrowers thereunder, each
Guarantor hereby represents and warrants to the Administrative Agent and each
Lender that the representations and warranties set forth in Article III of the
Credit Agreement (other than those set forth in Sections 3.04(c), 3.06 and 3.10
on any date other than the Effective 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 a certain Borrower thereunder 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 a Borrower
under the Credit Agreement on and as of such date of borrowing as though made
hereunder on and as of such date.
11. 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.
12. 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.
13. 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.
14. 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.
15. 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
material Guarantor from its obligations hereunder without the written consent of
each Lender.
16. No Waiver; Cumulative Remedies. Neither the Administrative Agent nor
any Lender shall by any act (except by a written instrument pursuant to
paragraph 15 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.
17. 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.
18. 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.
19. 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.
20. 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.
21. 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 duty to any 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.
22. GOVERNING LAW. THIS GUARANTEE SHALL BE GOVERNED BY, AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH, THE LAW OF HTE STATE OF NEW YORK
23. 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 12 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.
24. 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.
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.
AOL TIME WARNER INC.
By:
-----------------------------
Name:
Title:
AMERICA ONLINE, INC.
By:
-----------------------------
Name:
Title:
TIME WARNER INC.
By:
-----------------------------
Name:
Title:
▇▇▇▇▇▇ BROADCASTING SYSTEM, INC.
By:
-----------------------------
Name:
Title:
TIME WARNER COMPANIES, INC.
By:
-----------------------------
Name:
Title:
EXECUTION COPY
TWE PARTNER GUARANTEE
TWE PARTNER GUARANTEE ("Guarantee"), dated as of July 8, 2002 by each of
the persons listed on the signature pages hereof (each, a "Guarantor" and
collectively, the "Guarantors"), in favor of and for the benefit of the lenders
(collectively, the "Lenders") party to that certain Five-Year Credit Agreement,
dated as of July 8, 2002 (as the same may be amended, amended and restated,
supplemented or otherwise modified from time to time, the "Credit Agreement"),
among AOL Time Warner Inc., a Delaware corporation ("AOLTW"), Time Warner
Entertainment Company, L.P., a Delaware limited partnership ("TWE"), Time Warner
Entertainment-Advance/▇▇▇▇▇▇▇▇ Partnership, a New York general partnership
("TWEAN"), AOL Time Warner Finance Ireland, a corporation of the Republic of
Ireland ("AOLTWFI"), JPMorgan Chase Bank, as Administrative Agent (the "Agent"),
and the Lenders party thereto (the Agent and the Lenders each, a "Guaranteed
Party" and collectively, the "Guaranteed Parties"). Capitalized terms used but
not defined herein shall have the meanings assigned to such terms in the Credit
Agreement.
R E C I T A L S :
- - - - - - - -
A. Pursuant to the Credit Agreement, the Lenders have severally agreed to
make Loans to TWE upon the terms and conditions set forth therein.
B. Each Guarantor is a general partner of TWE and, thus, the Obligations of
TWE under the Credit Documents are being incurred for and will inure to the
benefit of such Guarantor.
C. Each Guarantor desires to guarantee its Guaranteed Percentage of such
Obligations.
D. The Lenders have required that this Guarantee be executed and delivered
by the Guarantors at or prior to the Closing Date under the Credit Agreement.
A G R E E M E N T :
- - - - - - - - - -
In consideration of the foregoing and for other good and valuable
consideration, the receipt and adequacy of which are hereby acknowledged, each
Guarantor hereby agrees as follows:
1. Guarantee. Such Guarantor hereby unconditionally and irrevocably
guarantees the due and punctual payment and performance of its Guaranteed
Percentage of all Obligations of TWE when any of the same shall become due and
payable, whether at stated maturity, by required payment, declaration, demand or
otherwise (including amounts which would be paid but for the operation of the
automatic stay under Section 362(a) of the Bankruptcy Code or any other
provision of bankruptcy law) and agrees to pay any and all reasonable costs and
expenses (including reasonable fees and disbursements of counsel) incurred by
any Guaranteed Party in enforcing any rights under this Guarantee together with
any accrued but unpaid interest on such Obligations (including, without
limitation, interest which, but for the filing of a petition of bankruptcy with
respect to TWE, would have accrued on such Obligations) (the "Guaranteed
Obligations").
The standard provisions contained in Attachment A hereto are incorporated
herein and made a part hereof as if set forth herein in full.
IN WITNESS WHEREOF, each of the undersigned Guarantors has caused this
Guarantee to be duly executed as of the day and year first above written.
AMERICAN TELEVISION AND
COMMUNICATIONS CORPORATION
WARNER COMMUNICATIONS INC.
By:
------------------------
Name:
Title:
Attachment A
GUARANTEE TERMS
Capitalized terms used but not defined herein shall have the
meanings assigned to such terms in the Guarantee to which these terms are
attached (the "Guarantee"). Each Guarantor under the Guarantee agrees as
follows:
1. No Release. Such Guarantor agrees that the Guaranteed Obligations may be
extended or renewed, in whole or in part, without notice or further assent from
it, and that such Guarantor will remain bound by the Guarantee notwithstanding
any extension, renewal or other alteration of any Guaranteed Obligation.
2. Obligations Absolute. Such Guarantor waives presentation of, demand of,
notice of dishonor and protest of any Guaranteed Obligation and also waives
notice of protest for nonpayment. The obligations of such Guarantor under the
Guarantee shall not be affected by any of the following (and the Guarantor
expressly waives any and all defenses arising out of, or based on, any of the
following):
(a) change in the manner, place or terms of payment (including the
currency thereof) of, and/or change or extension of the time of
payment of, renewal or alteration of, any of the Guaranteed
Obligations, any security or guarantee therefor, or any liability
incurred directly or indirectly in respect thereof, and the guarantee
under the Guarantee shall apply to the Guaranteed Obligations as so
changed, extended, renewed or altered;
(b) sale, exchange, release, surrender, realization upon or other
alteration in any manner and in any order of any property by
whomsoever at any time pledged or mortgaged to secure, or howsoever
securing, the Guaranteed Obligations or any liabilities (including any
of those hereunder) incurred directly or indirectly in respect thereof
or the Guarantee;
(c) settlement or compromise of any of the Guaranteed Obligations, any
security or guarantee therefor or any liability (including any of
those under the Guarantee) incurred directly or indirectly in respect
thereof or the Guarantee, and subordination of the payment of all or
any part thereof to the payment of any liability (whether due or not)
of any Person whose Obligations are guaranteed under the Guarantee
(each such Person, a "Beneficiary");
(d) actions or failures to act in any manner referred to in the Guarantee
that may deprive such Guarantor of its right to subrogation against
any Beneficiary to recover fully indemnity for any payments made
pursuant to the Guarantee;
(e) failure of any Guaranteed Party to assert any claim or demand or to
enforce any right or remedy against any Beneficiary or any guarantor
or any successor thereto under the provisions of any Credit Document
or any other agreement or otherwise; or
(f) rescission, waiver, extension, renewal, amendment or modification of
any of the terms or provisions of any Credit Document or any
instrument or agreement executed pursuant thereto.
3. Guarantee of Payment and Performance. The Guarantee constitutes a
guarantee of payment and performance when due and not of collection and such
Guarantor waives any right to require that any resort be had by any Guaranteed
Party to any balance of any deposit account or credit on the books of any
Guaranteed Party in favor of any Beneficiary or any other Person.
4. Unenforceability of Obligations. The obligations of such Guarantor under
the Guarantee shall not be subject to any reduction, limitation, impairment, or
termination for any reason (other than by payment in full of the Guaranteed
Obligations) and shall not be subject to any defense or setoff, counterclaim,
recoupment or termination whatsoever by reason of the invalidity, illegality or
unenforceability of any of the Guaranteed Obligations, discharge of any
Beneficiary from any of the Guaranteed Obligations in a bankruptcy or similar
proceeding or otherwise (except by payment in full of the Guaranteed
Obligations, subject to the terms of Section 6 below and the next sentence).
Such Guarantor further agrees that the Guarantee shall continue to be effective
or be reinstated, as the case may be, if at any time payment, or any part
thereof, of principal of, interest on or any other amount with respect to any
Guaranteed Obligation is rescinded or must otherwise be restored by any
Guaranteed Party or any other Person upon the bankruptcy or reorganization of
any Beneficiary, any other Person or otherwise.
5. Set-Off. In addition to any rights now or hereafter granted under
applicable law (including, without limitation, Section 151 of the New York
Debtor and Creditor Law) and not by way of limitation of any such rights, upon
the occurrence of any Event of Default, each Guaranteed Party is hereby
authorized at any time or from time to time, without notice to such Guarantor or
to any other Person, any such notice being expressly waived, to the extent
permitted by applicable law, to set-off and to appropriate and apply any and all
deposits (general or special) and any other indebtedness at any time held or
owing by such Guaranteed Party to or for the credit or the account of such
Guarantor, against and on account of the obligations and liabilities of such
Guarantor to such Guaranteed Party under the Guarantee, irrespective of whether
or not such Guaranteed Party shall have made any demand under the Guarantee and
although said obligations, liabilities, deposits or claims, or any of them,
shall be contingent or unmatured.
6. Reinstatement. If claim is ever made upon any Guaranteed Party for
repayment or recovery of any amount or amounts received in payment or on account
of any of the Guaranteed Obligations and any of the Guaranteed Parties repays
all or part of said amount by reason of (a) any judgment, decree or order of any
court or administrative body having jurisdiction over such Guaranteed Party or
any of its property or (b) any settlement or compromise of any such claim
effected by such Guaranteed Party with any such claimant (including any
Beneficiary), then and in such event such Guarantor agrees that any such
judgment, decree, order, settlement or compromise shall be binding upon it,
notwithstanding any revocation of the Guarantee or the cancellation of any
Credit Document or other instrument evidencing any liability of any Beneficiary,
and such Guarantor shall be and remain liable to such Guaranteed Party hereunder
for the amount so repaid or recovered to the same extent as if such amount had
never originally been received by any such Guaranteed Party.
7. No Subrogation. Notwithstanding any payment or payments made by such
Guarantor under the Guarantee or any set-off or application of funds of such
Guarantor by any Guaranteed Party, such Guarantor shall not be entitled to be
subrogated to any of the rights of any Guaranteed Party against any Beneficiary
or guarantee or right of offset held by any Guaranteed Party of the payment of
the Guaranteed Obligations, nor shall such Guarantor seek to be entitled to seek
any contribution or reimbursement from any Beneficiary in respect of payments
made by such Guarantor under the Guarantee, until all amounts owing to the
Guaranteed Parties by any Beneficiary on account of the Guaranteed Obligations
are paid in full. If any amount shall be paid to such Guarantor on account of
such subrogation rights at any time when all of the Guaranteed Obligations have
not been paid in full, such amount shall be held by such Guarantor in trust for
the Guaranteed Parties, 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 endorsed
by such Guarantor to the Administrative Agent, if required), to be applied
against the Guaranteed Obligations, whether matured or unmatured, in such order
as the Administrative Agent may determine.
8. Amendment and Waiver. No amendment, modification, termination or waiver
of any provision of the Guarantee, or consent to any departure by such Guarantor
herefrom, shall in any event be effective without the written concurrence of the
Required Lenders under the Credit Agreement or as otherwise provided in the
Credit Agreement including, without limitation, Section 2.21 and Section 9.02(b)
thereof. No waiver of any single breach or default under the Guarantee shall be
deemed a waiver of any other breach or default. All notices, requests, demands
or other communications to or upon such Guarantor or any Guaranteed Party shall
be in writing and shall be deemed to have been duly given or made as provided in
the Credit Agreement.
9. Successors and Assigns. The Guarantee shall be binding upon such
Guarantor and its successors and assigns and shall inure to the benefit of the
respective successors and assigns of the Guaranteed Parties and, in the event of
any transfer or assignment of rights by any Guaranteed Party, the rights and
privileges herein conferred upon that Guaranteed Party shall automatically
extend to and be vested in such transferee or assignee, all subject to the terms
and conditions hereof; provided, however, that no Guarantor may assign, transfer
or delegate any of its rights or obligations under the Guarantee without the
prior written consent of the Administrative Agent.
10. Governing Law. THE GUARANTEE SHALL BE DEEMED TO BE MADE UNDER, SHALL BE
GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF
THE STATE OF NEW YORK WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAW.
11. Jurisdiction and Service. All judicial proceedings brought against such
Guarantor with respect to the Guarantee may be brought in any state or federal
court of competent jurisdiction in the State of New York and by execution and
delivery of the Guarantee, such Guarantor accepts for itself and in connection
with its properties, generally and unconditionally, the nonexclusive
jurisdiction of the aforesaid courts, and irrevocably agrees to be bound by any
judgment rendered thereby in connection with the Guarantee. Such Guarantor
designates and appoints TWI, at its address specified for notices in the Credit
Agreement and such other Persons as may hereafter be selected by such Guarantor
irrevocably agreeing in writing to so serve, as its agent to receive on its
behalf service of all process in any such proceedings in any such court, such
service being hereby acknowledged by such Guarantor to be effective and binding
service in every respect. A copy of any such process so served shall be mailed
by registered mail to such Guarantor at its address as set forth above except
that unless otherwise provided by applicable law, any failure to mail such copy
shall not affect the validity of service of process. If any agent appointed by
such Guarantor refuses to accept service, such Guarantor hereby agrees that
service upon it by mail shall constitute sufficient notice. Nothing herein shall
affect the right of any Guaranteed Party to bring proceedings against such
Guarantor in the courts of any other jurisdiction.
12. Waiver of Jury Trial. SUCH GUARANTOR HEREBY WAIVES, TO THE FULLEST
EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN
RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN
CONNECTION WITH ANY CREDIT DOCUMENT. Such Guarantor (a) certifies that no
representative, agent or attorney of any other party to the Credit Documents has
represented, expressly or otherwise, that such other party would not, in the
event of litigation, seek to enforce the foregoing waiver and (b) acknowledges
that it and other parties to the Credit Documents have been induced to enter
into the Credit Documents by, among other things, the foregoing waiver and
certification.
13. Release. The Guarantee may be released only in accordance with Section
9.02(b) of the Credit Agreement; provided, however, that if AOLTW elects to
terminate the status of TWE or TWEAN as a Borrower and designates such
terminated Borrower as an Unrestricted Subsidiary, pursuant to Section 2.21 and
Section 6.08 of the Credit Agreement, (i) in the case of TWE, the TWE Partner
Guarantee, and (ii) in the case of TWEAN, the Paragon Guarantee and the Paragon
Partner Guarantee, shall be automatically released.
EXECUTION COPY
PARAGON GUARANTEE
PARAGON GUARANTEE ("Guarantee"), dated as of July 8, 2002 by Paragon
Communications, a Colorado general partnership ("the "Guarantor"), in favor of
and for the benefit of the lenders (collectively, the "Lenders") party to that
certain Five-Year Credit Agreement, dated as of July 8, 2002 (as the same may be
amended, amended and restated, supplemented or otherwise modified from time to
time, the "Credit Agreement"), among AOL Time Warner Inc., a Delaware
corporation ("AOLTW"), Time Warner Entertainment Company, L.P., a Delaware
limited partnership ("TWE"), Time Warner Entertainment-Advance/▇▇▇▇▇▇▇▇
Partnership, a New York general partnership ("TWEAN"), AOL Time Warner Finance
Ireland, a corporation of the Republic of Ireland ("AOLTWFI"), JPMorgan Chase
Bank, as Administrative Agent (the "Agent"), and the Lenders party thereto (the
Agent and the Lenders each, a "Guaranteed Party" and collectively, the
"Guaranteed Parties"). Capitalized terms used but not defined herein shall have
the meanings assigned to such terms in the Credit Agreement.
R E C I T A L S :
- - - - - - - -
A. Pursuant to the Credit Agreement, the Lenders have severally agreed to
make Loans to TWEAN upon the terms and conditions set forth therein.
B. The Guarantor holds beneficial interests in TWEAN and, thus, the
Obligations of TWEAN are being incurred for and will inure to the benefit of
the Guarantor.
A G R E E M E N T :
- - - - - - - - -
In consideration of the foregoing and for other good and valuable
consideration, the receipt and adequacy of which are hereby acknowledged, the
Guarantor hereby agrees as follows:
1. Guarantee. (a) The Guarantor hereby unconditionally and irrevocably
guarantees the due and punctual payment and performance of all Obligations of
TWEAN when any of the same shall become due and payable, whether at stated
maturity, by required payment, declaration, demand or otherwise (including
amounts which would be paid but for the operation of the automatic stay under
Section 362(a) of the BaNkruptcy Code or any other provision of bankruptcy law)
and agrees to pay any and all reasonable costs and expenses (including
reasonable fees and disbursements of counsel) incurred by any Guaranteed Party
in enforcing any rights under this Guarantee together with any accrued but
unpaid interest on such Obligations (including, without limitation, interest
which, but for the filing of a petition of bankruptcy with respect to TWEAN,
would have accrued on such Obligations) (the "Guaranteed Obligations").
(b) The Obligations of the Guarantor under this Guarantee shall be limited
to the extent necessary to prevent this Guarantee or any payment hereunder being
avoided as a fraudulent transfer or fraudulent conveyance under the U.S.
Bankruptcy Code or under any applicable state law governing fraudulent transfers
or fraudulent conveyances.
The standard provisions contained in Attachment A hereto are incorporated
herein and made a part hereof as if set forth herein full.
IN WITNESS WHEREOF, the undersigned has caused this Guarantee to be duly
executed as of the day and year first above written.
PARAGON COMMUNICATIONS
By: KBL COMMUNICATIONS, INC.,
its general partner
By:
------------------------
Name:
Title:
Attachment A
GUARANTEE TERMS
Capitalized terms used but not defined herein shall have the meanings
assigned to such terms in the Guarantee to which these terms are attached (the
"Guarantee"). Each Guarantor under the Guarantee agrees as follows:
1. No Release. Such Guarantor agrees that the Guaranteed Obligations may be
extended or renewed, in whole or in part, without notice or further assent from
it, and that such Guarantor will remain bound by the Guarantee notwithstanding
any extension, renewal or other alteration of any Guaranteed Obligation.
2. Obligations Absolute. Such Guarantor waives presentation of, demand of,
notice of dishonor and protest of any Guaranteed Obligation and also waives
notice of protest for nonpayment. The obligations of such Guarantor under the
Guarantee shall not be affected by any of the following (and the Guarantor
expressly waives any and all defenses arising out of, or based on, any of the
following):
(a) change in the manner, place or terms of payment (including the
currency thereof) of, and/or change or extension of the time of
payment of, renewal or alteration of, any of the Guaranteed
Obligations, any security or guarantee therefor, or any liability
incurred directly or indirectly in respect thereof, and the guarantee
under the Guarantee shall apply to the Guaranteed Obligations as so
changed, extended, renewed or altered;
(b) sale, exchange, release, surrender, realization upon or other
alteration in any manner and in any order of any property by
whomsoever at any time pledged or mortgaged to secure, or howsoever
securing, the Guaranteed Obligations or any liabilities (including any
of those hereunder) incurred directly or indirectly in respect thereof
or the Guarantee;
(c) settlement or compromise of any of the Guaranteed Obligations, any
security or guarantee therefor or any liability (including any of
those under the Guarantee) incurred directly or indirectly in respect
thereof or the Guarantee, and subordination of the payment of all or
any part thereof to the payment of any liability (whether due or not)
of any Person whose Obligations are guaranteed under the Guarantee
(each such Person, a "Beneficiary");
(d) actions or failures to act in any manner referred to in the Guarantee
that may deprive such Guarantor of its right to subrogation against
any Beneficiary to recover fully indemnity for any payments made
pursuant to the Guarantee;
(e) failure of any Guaranteed Party to assert any claim or demand or to
enforce any right or remedy against any Beneficiary or any guarantor
or any successor thereto under the provisions of any Credit Document
or any other agreement or otherwise; or
(f) rescission, waiver, extension, renewal, amendment or modification of
any of the terms or provisions of any Credit Document or any
instrument or agreement executed pursuant thereto.
3. Guarantee of Payment and Performance. The Guarantee constitutes a
guarantee of payment and performance when due and not of collection and such
Guarantor waives any right to require that any resort be had by any Guaranteed
Party to any balance of any deposit account or credit on the books of any
Guaranteed Party in favor of any Beneficiary or any other Person.
4. Unenforceability of Obligations. The obligations of such Guarantor under
the Guarantee shall not be subject to any reduction, limitation, impairment, or
termination for any reason (other than by payment in full of the Guaranteed
Obligations) and shall not be subject to any defense or setoff, counterclaim,
recoupment or termination whatsoever by reason of the invalidity, illegality or
unenforceability of any of the Guaranteed Obligations, discharge of any
Beneficiary from any of the Guaranteed Obligations in a bankruptcy or similar
proceeding or otherwise (except by payment in full of the Guaranteed
Obligations, subject to the terms of Section 6 below and the next sentence).
Such Guarantor further agrees that the Guarantee shall continue to be effective
or be reinstated, as the case may be, if at any time payment, or any part
thereof, of principal of, interest on or any other amount with respect to any
Guaranteed Obligation is rescinded or must otherwise be restored by any
Guaranteed Party or any other Person upon the bankruptcy or reorganization of
any Beneficiary, any other Person or otherwise.
5. Set-Off. In addition to any rights now or hereafter granted under
applicable law (including, without limitation, Section 151 of the New York
Debtor and Creditor Law) and not by way of limitation of any such rights, upon
the occurrence of any Event of Default, each Guaranteed Party is hereby
authorized at any time or from time to time, without notice to such Guarantor or
to any other Person, any such notice being expressly waived, to the extent
permitted by applicable law, to set-off and to appropriate and apply any and all
deposits (general or special) and any other indebtedness at any time held or
owing by such Guaranteed Party to or for the credit or the account of such
Guarantor, against and on account of the obligations and liabilities of such
Guarantor to such Guaranteed Party under the Guarantee, irrespective of whether
or not such Guaranteed Party shall have made any demand under the Guarantee and
although said obligations, liabilities, deposits or claims, or any of them,
shall be contingent or unmatured.
6. Reinstatement. If claim is ever made upon any Guaranteed Party for
repayment or recovery of any amount or amounts received in payment or on account
of any of the Guaranteed Obligations and any of the Guaranteed Parties repays
all or part of said amount by reason of (a) any judgment, decree or order of any
court or administrative body having jurisdiction over such Guaranteed Party or
any of its property or (b) any settlement or compromise of any such claim
effected by such Guaranteed Party with any such claimant (including any
Beneficiary), then and in such event such Guarantor agrees that any such
judgment, decree, order, settlement or compromise shall be binding upon it,
notwithstanding any revocation of the Guarantee or the cancellation of any
Credit Document or other instrument evidencing any liability of any Beneficiary,
and such Guarantor shall be and remain liable to such Guaranteed Party hereunder
for the amount so repaid or recovered to the same extent as if such amount had
never originally been received by any such Guaranteed Party.
7. No Subrogation. Notwithstanding any payment or payments made by such
Guarantor under the Guarantee or any set-off or application of funds of such
Guarantor by any Guaranteed Party, such Guarantor shall not be entitled to be
subrogated to any of the rights of any Guaranteed Party against any Beneficiary
or guarantee or right of offset held by any Guaranteed Party of the payment of
the Guaranteed Obligations, nor shall such Guarantor seek to be entitled to seek
any contribution or reimbursement from any Beneficiary in respect of payments
made by such Guarantor under the Guarantee, until all amounts owing to the
Guaranteed Parties by any Beneficiary on account of the Guaranteed Obligations
are paid in full. If any amount shall be paid to such Guarantor on account of
such subrogation rights at any time when all of the Guaranteed Obligations have
not been paid in full, such amount shall be held by such Guarantor in trust for
the Guaranteed Parties, 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 endorsed
by such Guarantor to the Administrative Agent, if required), to be applied
against the Guaranteed Obligations, whether matured or unmatured, in such order
as the Administrative Agent may determine.
8. Amendment and Waiver. No amendment, modification, termination or waiver
of any provision of the Guarantee, or consent to any departure by such Guarantor
herefrom, shall in any event be effective without the written concurrence of the
Required Lenders under the Credit Agreement or as otherwise provided in the
Credit Agreement including, without limitation, Section 2.21 and Section 9.02(b)
thereof. No waiver of any single breach or default under the Guarantee shall be
deemed a waiver of any other breach or default. All notices, requests, demands
or other communications to or upon such Guarantor or any Guaranteed Party shall
be in writing and shall be deemed to have been duly given or made as provided in
the Credit Agreement.
9. Successors and Assigns. The Guarantee shall be binding upon such
Guarantor and its successors and assigns and shall inure to the benefit of the
respective successors and assigns of the Guaranteed Parties and, in the event of
any transfer or assignment of rights by any Guaranteed Party, the rights and
privileges herein conferred upon that Guaranteed Party shall automatically
extend to and be vested in such transferee or assignee, all subject to the terms
and conditions hereof; provided, however, that no Guarantor may assign, transfer
or delegate any of its rights or obligations under the Guarantee without the
prior written consent of the Administrative Agent.
10. Governing Law. THE GUARANTEE SHALL BE DEEMED TO BE MADE UNDER, SHALL BE
GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF
THE STATE OF NEW YORK WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAW.
11. Jurisdiction and Service. All judicial proceedings brought against such
Guarantor with respect to the Guarantee may be brought in any state or federal
court of competent jurisdiction in the State of New York and by execution and
delivery of the Guarantee, such Guarantor accepts for itself and in connection
with its properties, generally and unconditionally, the nonexclusive
jurisdiction of the aforesaid courts, and irrevocably agrees to be bound by any
judgment rendered thereby in connection with the Guarantee. Such Guarantor
designates and appoints TWI, at its address specified for notices in the Credit
Agreement and such other Persons as may hereafter be selected by such Guarantor
irrevocably agreeing in writing to so serve, as its agent to receive on its
behalf service of all process in any such proceedings in any such court, such
service being hereby acknowledged by such Guarantor to be effective and binding
service in every respect. A copy of any such process so served shall be mailed
by registered mail to such Guarantor at its address as set forth above except
that unless otherwise provided by applicable law, any failure to mail such copy
shall not affect the validity of service of process. If any agent appointed by
such Guarantor refuses to accept service, such Guarantor hereby agrees that
service upon it by mail shall constitute sufficient notice. Nothing herein shall
affect the right of any Guaranteed Party to bring proceedings against such
Guarantor in the courts of any other jurisdiction.
12. Waiver of Jury Trial. SUCH GUARANTOR HEREBY WAIVES, TO THE FULLEST
EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN
RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN
CONNECTION WITH ANY CREDIT DOCUMENT. Such Guarantor (a) certifies that no
representative, agent or attorney of any other party to the Credit Documents has
represented, expressly or otherwise, that such other party would not, in the
event of litigation, seek to enforce the foregoing waiver and (b) acknowledges
that it and other parties to the Credit Documents have been induced to enter
into the Credit Documents by, among other things, the foregoing waiver and
certification.
13. Release. The Guarantee may be released only in accordance with Section
9.02(b) of the Credit Agreement; provided, however, that if AOLTW elects to
terminate the status of TWE or TWEAN as a Borrower and designates such
terminated Borrower as an Unrestricted Subsidiary, pursuant to Section 2.21 and
Section 6.08 of the Credit Agreement, (i) in the case of TWE, the TWE Partner
Guarantee, and (ii) in the case of TWEAN, the Paragon Guarantee and the Paragon
Partner Guarantee, shall be automatically released.
EXECUTION COPY
PARAGON PARTNER GUARANTEE
PARAGON PARTNER GUARANTEE ("Guarantee"), dated as of July 8, 2002, by each
of the persons listed on the signature pages hereof (each, a "Guarantor" and
collectively, the "Guarantors"), in favor of and for the benefit of the lenders
(collectively, the "Lenders") party to that certain Five-Year Credit Agreement,
dated as of July 8, 2002 (as the same may be amended, amended and restated,
supplemented or otherwise modified from time to time, the "Credit Agreement"),
among AOL Time Warner Inc., a Delaware corporation ("AOLTW"), Time Warner
Entertainment Company, L.P., a Delaware limited partnership ("TWE"), Time Warner
Entertainment-Advance/▇▇▇▇▇▇▇▇ Partnership, a New York general partnership
("TWEAN"), AOL Time Warner Finance Ireland, a corporation of the Republic of
Ireland ("AOLTWFI"), JPMorgan Chase Bank, as Administrative Agent (the "Agent"),
and the Lenders party thereto (the Agent and the Lenders each, a "Guaranteed
Party" and collectively, the "Guaranteed Parties"). Capitalized terms used but
not defined herein shall have the meanings ascribed to such terms in the Credit
Agreement.
R E C I T A L S:
- - - - - - - -
A. Pursuant to the Credit Agreement, the Lenders have severally agreed to
make loans to TWEAN upon the terms and conditions set forth therein.
B. Paragon Communications, a Colorado general partnership ("Paragon"),
shall, as required by the Credit Agreement, execute and deliver the Paragon
Guarantee, dated as of the date hereof, pursuant to which it shall guarantee
TWEAN's Obligations under the Credit Agreement (Paragon's obligations under the
Paragon Guarantee, the "Paragon Obligations", together with TWEAN's Obligations,
being referred to herein as the "Credit Facility Obligations").
C. Each of the Guarantors is a general partner of Paragon and, thus, the
Credit Facility Obligations are being incurred for and will inure to the benefit
of such Guarantor.
D. Each of the Guarantors desires to guarantee its Guaranteed Percentage
(as defined below) of the Paragon Obligations (the "Guaranteed Obligations").
E. For purposes hereof, "Guaranteed Percentage" means, with respect to each
Guarantor, the percentage set forth opposite its name on Schedule 1 hereto.
A G R E E M E N T:
- - - - - - - - -
In consideration of the foregoing and for other good and valuable
consideration, the receipt and adequacy of which are hereby acknowledged, each
Guarantor hereby agrees as follows:
1. Guarantee. Such Guarantor hereby unconditionally and irrevocably
guarantees the due and punctual payment and performance of its Guaranteed
Percentage when any of the same shall become due and payable, whether at stated
maturity, by required payment, declaration, demand or otherwise (including
amounts which would be paid but for the operation of the automatic stay under
Section 3.62(a) of the Bankruptcy Code or any other provision of bankruptcy law)
and agrees to pay any and all reasonable costs and expenses (including
reasonable fees and distributions of counsel) incurred by any Guaranteed Party
in enforcing any rights under this Guarantee together with any accrued but
unpaid interest on such Obligations (including, without limitation, interest
which, but for the filing of a petition of bankruptcy with respect to TWEAN,
would have accrued on such Obligations).
The standard provisions contained in Attachment A hereto are incorporated
herein and made a part hereof as if set forth herein in full.
IN WITNESS WHEREOF, each of the undersigned Guarantors has caused this
Guarantee to be duly executed as of the day and year first above written.
TWI CABLE INC.
CABLEVISION INDUSTRIES OF CENTRAL
FLORIDA, INC.
CABLEVISION INDUSTRIES, INC.
COLUMBIA CABLE T.V. COMPANY, INC.
TRI-COUNTY CABLEVISION, INC.
ALERT CABLE T.V. OF NORTH
CAROLINA, INC.
ALERT CABLE T.V. OF SOUTH
CAROLINA, INC.
SUMMIT CABLE, INC.
By:
------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Vice President
CABLEVISION INDUSTRIES LIMITED
PARTNERSHIP
By: TWI CABLE INC.,
as general partner
By:
------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Vice President
MC CABLE TV LIMITED PARTNERSHIP
By: MC TV, INC.,
as general partner
By:
------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Vice President
KBL COMMUNICATIONS, INC.
KBL CABLESYSTEMS OF THE
SOUTHWEST, INC.
By:
------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Senior Vice President
Schedule 1
Guaranteed Percentage
Guarantor Guaranteed
--------- Percentage (%)
--------------
KBL Communications, Inc. 10.3272
TWI Cable Inc. 6.3006
Cablevision Industries of Central Florida, Inc 6.6038
Cablevision Industries Limited Partnership 3.8664
Cablevision Industries, Inc. 11.8018
Columbia Cable T.V. Company, Inc. 7.1698
Tri-County Cablevision, Inc. 1.7239
Alert Cable T.V. of North Carolina, Inc. 14.9613
Alert Cable T.V. of South Carolina, Inc. 1.0955
MC Cable TV Limited Partnership 3.4431
KBL Cablesystems of the Southwest, Inc. 30.5009
Summit Cable, Inc. 2.2057
----------
Total 100.0000
Attachment A
GUARANTEE TERMS
Capitalized terms used but not defined herein shall have the meanings
assigned to such terms in the Guarantee to which these terms are attached (the
"Guarantee"). Each Guarantor under the Guarantee agrees as follows:
1. No Release. Such Guarantor agrees that the Guaranteed Obligations may be
extended or renewed, in whole or in part, without notice or further assent from
it, and that such Guarantor will remain bound by the Guarantee notwithstanding
any extension, renewal or other alteration of any Guaranteed Obligation.
2. Obligations Absolute. Such Guarantor waives presentation of, demand of,
notice of dishonor and protest of any Guaranteed Obligation and also waives
notice of protest for nonpayment. The obligations of such Guarantor under the
Guarantee shall not be affected by any of the following (and the Guarantor
expressly waives any and all defenses arising out of, or based on, any of the
following):
(a) change in the manner, place or terms of payment (including the
currency thereof) of, and/or change or extension of the time of
payment of, renewal or alteration of, any of the Guaranteed
Obligations, any security or guarantee therefor, or any liability
incurred directly or indirectly in respect thereof, and the guarantee
under the Guarantee shall apply to the Guaranteed Obligations as so
changed, extended, renewed or altered;
(b) sale, exchange, release, surrender, realization upon or other
alteration in any manner and in any order of any property by
whomsoever at any time pledged or mortgaged to secure, or howsoever
securing, the Guaranteed Obligations or any liabilities (including any
of those hereunder) incurred directly or indirectly in respect thereof
or the Guarantee;
(c) settlement or compromise of any of the Guaranteed Obligations, any
security or guarantee therefor or any liability (including any of
those under the Guarantee) incurred directly or indirectly in respect
thereof or the Guarantee, and subordination of the payment of all or
any part thereof to the payment of any liability (whether due or not)
of any Person whose Obligations are guaranteed under the Guarantee
(each such Person, a "Beneficiary");
(d) actions or failures to act in any manner referred to in the Guarantee
that may deprive such Guarantor of its right to subrogation against
any Beneficiary to recover fully indemnity for any payments made
pursuant to the Guarantee;
(e) failure of any Guaranteed Party to assert any claim or demand or to
enforce any right or remedy against any Beneficiary or any guarantor
or any successor thereto under the provisions of any Credit Document
or any other agreement or otherwise; or
(f) rescission, waiver, extension, renewal, amendment or modification of
any of the terms or provisions of any Credit Document or any
instrument or agreement executed pursuant thereto.
3. Guarantee of Payment and Performance. The Guarantee constitutes a
guarantee of payment and performance when due and not of collection and such
Guarantor waives any right to require that any resort be had by any Guaranteed
Party to any balance of any deposit account or credit on the books of any
Guaranteed Party in favor of any Beneficiary or any other Person.
4. Unenforceability of Obligations. The obligations of such Guarantor under
the Guarantee shall not be subject to any reduction, limitation, impairment, or
termination for any reason (other than by payment in full of the Guaranteed
Obligations) and shall not be subject to any defense or setoff, counterclaim,
recoupment or termination whatsoever by reason of the invalidity, illegality or
unenforceability of any of the Guaranteed Obligations, discharge of any
Beneficiary from any of the Guaranteed Obligations in a bankruptcy or similar
proceeding or otherwise (except by payment in full of the Guaranteed
Obligations, subject to the terms of Section 6 below and the next sentence).
Such Guarantor further agrees that the Guarantee shall continue to be effective
or be reinstated, as the case may be, if at any time payment, or any part
thereof, of principal of, interest on or any other amount with respect to any
Guaranteed Obligation is rescinded or must otherwise be restored by any
Guaranteed Party or any other Person upon the bankruptcy or reorganization of
any Beneficiary, any other Person or otherwise.
5. Set-Off. In addition to any rights now or hereafter granted under
applicable law (including, without limitation, Section 151 of the New York
Debtor and Creditor Law) and not by way of limitation of any such rights, upon
the occurrence of any Event of Default, each Guaranteed Party is hereby
authorized at any time or from time to time, without notice to such Guarantor or
to any other Person, any such notice being expressly waived, to the extent
permitted by applicable law, to set-off and to appropriate and apply any and all
deposits (general or special) and any other indebtedness at any time held or
owing by such Guaranteed Party to or for the credit or the account of such
Guarantor, against and on account of the obligations and liabilities of such
Guarantor to such Guaranteed Party under the Guarantee, irrespective of whether
or not such Guaranteed Party shall have made any demand under the Guarantee and
although said obligations, liabilities, deposits or claims, or any of them,
shall be contingent or unmatured.
6. Reinstatement. If claim is ever made upon any Guaranteed Party for
repayment or recovery of any amount or amounts received in payment or on account
of any of the Guaranteed Obligations and any of the Guaranteed Parties repays
all or part of said amount by reason of (a) any judgment, decree or order of any
court or administrative body having jurisdiction over such Guaranteed Party or
any of its property or (b) any settlement or compromise of any such claim
effected by such Guaranteed Party with any such claimant (including any
Beneficiary), then and in such event such Guarantor agrees that any such
judgment, decree, order, settlement or compromise shall be binding upon it,
notwithstanding any revocation of the Guarantee or the cancellation of any
Credit Document or other instrument evidencing any liability of any Beneficiary,
and such Guarantor shall be and remain liable to such Guaranteed Party hereunder
for the amount so repaid or recovered to the same extent as if such amount had
never originally been received by any such Guaranteed Party.
7. No Subrogation. Notwithstanding any payment or payments made by such
Guarantor under the Guarantee or any set-off or application of funds of such
Guarantor by any Guaranteed Party, such Guarantor shall not be entitled to be
subrogated to any of the rights of any Guaranteed Party against any Beneficiary
or guarantee or right of offset held by any Guaranteed Party of the payment of
the Guaranteed Obligations, nor shall such Guarantor seek to be entitled to seek
any contribution or reimbursement from any Beneficiary in respect of payments
made by such Guarantor under the Guarantee, until all amounts owing to the
Guaranteed Parties by any Beneficiary on account of the Guaranteed Obligations
are paid in full. If any amount shall be paid to such Guarantor on account of
such subrogation rights at any time when all of the Guaranteed Obligations have
not been paid in full, such amount shall be held by such Guarantor in trust for
the Guaranteed Parties, 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 endorsed
by such Guarantor to the Administrative Agent, if required), to be applied
against the Guaranteed Obligations, whether matured or unmatured, in such order
as the Administrative Agent may determine.
8. Amendment and Waiver. No amendment, modification,
termination or waiver of any provision of the Guarantee, or consent to any
departure by such Guarantor herefrom, shall in any event be effective without
the written concurrence of the Required Lenders under the Credit Agreement or as
otherwise provided in the Credit Agreement including, without limitation,
Section 2.21 and Section 9.02(b) thereof. No waiver of any single breach or
default under the Guarantee shall be deemed a waiver of any other breach or
default. All notices, requests, demands or other communications to or upon such
Guarantor or any Guaranteed Party shall be in writing and shall be deemed to
have been duly given or made as provided in the Credit Agreement.
9. Successors and Assigns. The Guarantee shall be binding upon such
Guarantor and its successors and assigns and shall inure to the benefit of the
respective successors and assigns of the Guaranteed Parties and, in the event of
any transfer or assignment of rights by any Guaranteed Party, the rights and
privileges herein conferred upon that Guaranteed Party shall automatically
extend to and be vested in such transferee or assignee, all subject to the terms
and conditions hereof; provided, however, that no Guarantor may assign, transfer
or delegate any of its rights or obligations under the Guarantee without the
prior written consent of the Administrative Agent.
10. Governing Law. THE GUARANTEE SHALL BE DEEMED TO BE MADE UNDER, SHALL BE
GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF
THE STATE OF NEW YORK WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAW.
11. Jurisdiction and Service. All judicial proceedings brought against such
Guarantor with respect to the Guarantee may be brought in any state or federal
court of competent jurisdiction in the State of New York and by execution and
delivery of the Guarantee, such Guarantor accepts for itself and in connection
with its properties, generally and unconditionally, the nonexclusive
jurisdiction of the aforesaid courts, and irrevocably agrees to be bound by any
judgment rendered thereby in connection with the Guarantee. Such Guarantor
designates and appoints TWI, at its address specified for notices in the Credit
Agreement and such other Persons as may hereafter be selected by such Guarantor
irrevocably agreeing in writing to so serve, as its agent to receive on its
behalf service of all process in any such proceedings in any such court, such
service being hereby acknowledged by such Guarantor to be effective and binding
service in every respect. A copy of any such process so served shall be mailed
by registered mail to such Guarantor at its address as set forth above except
that unless otherwise provided by applicable law, any failure to mail such copy
shall not affect the validity of service of process. If any agent appointed by
such Guarantor refuses to accept service, such Guarantor hereby agrees that
service upon it by mail shall constitute sufficient notice. Nothing herein shall
affect the right of any Guaranteed Party to bring proceedings against such
Guarantor in the courts of any other jurisdiction.
12. Waiver of Jury Trial. SUCH GUARANTOR HEREBY WAIVES, TO THE FULLEST
EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN
RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN
CONNECTION WITH ANY CREDIT DOCUMENT. Such Guarantor (a) certifies that no
representative, agent or attorney of any other party to the Credit Documents has
represented, expressly or otherwise, that such other party would not, in the
event of litigation, seek to enforce the foregoing waiver and (b) acknowledges
that it and other parties to the Credit Documents have been induced to enter
into the Credit Documents by, among other things, the foregoing waiver and
certification.
13. Release. The Guarantee may be released only in accordance with Section
9.02(b) of the Credit Agreement; provided, however, that if AOLTW elects to
terminate the status of TWE or TWEAN as a Borrower and designates such
terminated Borrower as an Unrestricted Subsidiary, pursuant to Section 2.21 and
Section 6.08 of the Credit Agreement, (i) in the case of TWE, the TWE Partner
Guarantee, and (ii) in the case of TWEAN, the Paragon Guarantee and the Paragon
Partner Guarantee, shall be automatically released.