Exhibit 99.1
EXECUTION COPY
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AMENDED AND RESTATED CREDIT AGREEMENT
Dated as of December 9, 2003 and amended and restated as of
November 23, 2004
Among
TIME WARNER CABLE INC.,
TIME WARNER ENTERTAINMENT COMPANY, L.P.,
The Lenders Party Hereto,
JPMORGAN CHASE BANK, N.A.,
as Administrative Agent,
CITIBANK, N.A. AND DEUTSCHE BANK AG, NEW YORK BRANCH
as Co-Syndication Agents,
and
ABN AMRO BANK N.V. AND BNP PARIBAS,
as Co-Documentation Agents
$4,000,000,000 FIVE-YEAR REVOLVING CREDIT FACILITY
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X.X. XXXXXX SECURITIES INC. AND CITIGROUP GLOBAL
MARKETS INC. 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.................19
SECTION 1.03. Terms Generally........................................19
SECTION 1.04. Accounting Terms; GAAP.................................20
ARTICLE II The Credits........................................................20
SECTION 2.01. Commitments............................................20
SECTION 2.02. Loans and Borrowings...................................20
SECTION 2.03. Requests for Revolving Borrowings..................... 21
SECTION 2.04. Swingline Loans........................................21
SECTION 2.05. Letters of Credit......................................22
SECTION 2.06. Funding of Borrowings..................................26
SECTION 2.07. Interest Elections.....................................26
SECTION 2.08. Termination and Reduction of Commitments...............28
SECTION 2.09. Repayment of Loans; Evidence of Debt...................28
SECTION 2.10. Prepayment of Loans....................................29
SECTION 2.11. Fees...................................................29
SECTION 2.12. Interest...............................................30
SECTION 2.13. Alternate Rate of Interest.............................31
SECTION 2.14. Increased Costs........................................32
SECTION 2.15. Break Funding Payments.................................33
SECTION 2.16. Taxes 33
SECTION 2.17. Payments Generally; Pro Rata Treatment; Sharing of
Setoffs...............................................35
SECTION 2.18. Mitigation Obligations; Replacement of Lenders.........36
ARTICLE III Representations and Warranties....................................37
SECTION 3.01. Organization; Powers...................................37
SECTION 3.02. Authorization; Enforceability..........................37
SECTION 3.03. Governmental Approvals; No Conflicts...................37
SECTION 3.04. Financial Condition; No Material Adverse Change........38
SECTION 3.05. Properties.............................................38
SECTION 3.06. Litigation and Environmental Matters...................38
SECTION 3.07. Compliance with Laws and Agreements....................39
SECTION 3.08. Government Regulation..................................39
SECTION 3.09. Taxes 39
SECTION 3.10. ERISA 39
SECTION 3.11. Disclosure.............................................39
ARTICLE IV Conditions.........................................................40
SECTION 4.01. Amendment Effective Date...............................40
SECTION 4.02. Each Credit Event......................................41
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ARTICLE V Affirmative Covenants...............................................41
SECTION 5.01. Financial Statements and Other Information.............41
SECTION 5.02. Notices of Material Events.............................43
SECTION 5.03. Existence; Conduct of Business.........................43
SECTION 5.04. Payment of Obligations.................................44
SECTION 5.05. Maintenance of Properties; Insurance...................44
SECTION 5.06. Books and Records; Inspection Rights...................44
SECTION 5.07. Compliance with Laws...................................44
SECTION 5.08. Use of Proceeds........................................44
SECTION 5.09. Fiscal Periods; Accounting.............................44
SECTION 5.10. TWCNY Guarantee........................................45
ARTICLE VI Negative Covenants.................................................45
SECTION 6.01. Financial Covenants....................................45
SECTION 6.02. Indebtedness...........................................45
SECTION 6.03. Liens 46
SECTION 6.04. Mergers, Etc...........................................47
SECTION 6.05. Investments............................................47
SECTION 6.06. Restricted Payments....................................48
SECTION 6.07. Transactions with Affiliates...........................48
SECTION 6.08. Unrestricted Subsidiaries..............................48
ARTICLE VII Events of Default.................................................48
ARTICLE VIII The Agents.......................................................51
ARTICLE IX Miscellaneous......................................................53
SECTION 9.01. Notices................................................53
SECTION 9.02. Waivers; Amendments....................................54
SECTION 9.03. Expenses; Indemnity; Damage Waiver.....................55
SECTION 9.04. Successors and Assigns.................................56
SECTION 9.05. Survival...............................................58
SECTION 9.06. Counterparts; Integration; Effectiveness...............59
SECTION 9.07. Severability...........................................59
SECTION 9.08. Right of Setoff........................................59
SECTION 9.09. Governing Law; Jurisdiction; Consent to Service of
Proces................................................59
SECTION 9.10. WAIVER OF JURY TRIAL...................................60
SECTION 9.11. Headings...............................................60
SECTION 9.12. Confidentiality........................................60
SECTION 9.13. Acknowledgements.......................................61
SECTION 9.14. Supplemental Guarantees................................61
SECTION 9.15. USA Patriot Act........................................61
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SCHEDULES:
Schedule 2.01 - Commitments
Schedule 2.03(A) - Borrowing Notice/Interest Election Notice/Prepayment Notice
Schedule 2.03(B) - Authorized Account Numbers & Locations
Schedule 6.08 - Unrestricted Subsidiaries
Schedule 8 - List of Proper Persons
EXHIBITS:
Exhibit A - Form of Assignment and Acceptance
Exhibit B - Form of Primary Guarantee
Exhibit C - Form of Supplemental Guarantee
Exhibit D - Form of TWCNY Guarantee
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AMENDED AND RESTATED FIVE-YEAR CREDIT AGREEMENT (as further amended,
supplemented or otherwise modified from time to time, this "Agreement") dated as
of December 9, 2003, and amended and restated as of November 23, 2004, among
TIME WARNER CABLE INC., a Delaware corporation (together with any replacement or
successor entity pursuant to Section 6.04, "TWC"), TIME WARNER ENTERTAINMENT
COMPANY, L.P., a Delaware limited partnership ("TWE"), the several banks and
other financial institutions from time to time parties to this Agreement (the
"Lenders"), CITIBANK, N.A. and DEUTSCHE BANK AG, NEW YORK BRANCH, 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, N.A., as administrative
agent (in such capacity, the "Administrative Agent").
W I T N E S S E T H:
WHEREAS, TWC, TWE, the Lenders, the co-syndication agents, the
co-documentation agents and the Administrative Agent are parties to a Five-Year
Credit Agreement, dated as of December 9, 2003 (as amended, supplemented or
otherwise modified prior to the date hereof, the "Existing Five-Year Credit
Agreement");
WHEREAS, the Borrowers have requested that the Existing Five-Year Credit
Agreement be amended and restated in its entirety as set forth herein;
WHEREAS, the Borrowers have requested the Lenders to make loans and other
extensions of credit to them in an aggregate amount of up to $4,000,000,000 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 Existing Five-Year Credit Agreement is hereby amended and
restated in its entirety as follows:
ARTICLE I
Definitions
SECTION 1.01. Defined Terms. As used in this Agreement, the following
terms have the meanings specified below:
"ABR" when used in reference to any Loan or Borrowing, refers to a Loan, or
the Loans comprising such Borrowing, bearing interest at a rate determined by
reference to the Alternate Base Rate.
"Adjusted Financial Statements" means, for any period, (a) the balance
sheet of TWC and its Restricted Subsidiaries (treating Unrestricted Subsidiaries
as equity investments of TWC to the extent that such Unrestricted Subsidiaries
would not otherwise be treated as equity investments of TWC 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
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fiscal year, for the then elapsed portion of the fiscal year (treating
Unrestricted Subsidiaries as equity investments of TWC to the extent that such
Unrestricted Subsidiaries would not otherwise be treated as equity investments
of TWC in accordance with GAAP).
"Adjusted LIBO Rate" means with respect to any Eurodollar Borrowing for any
Interest Period, an interest rate per annum (rounded upwards, if necessary, to
the next Basis Point) equal to (a) the LIBO Rate for such Interest Period
multiplied by (b) the Statutory Reserve Rate.
"Administrative Agent" means JPMorgan Chase Bank, N.A., 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.
"Amendment Effective Date" means the date on which the conditions specified
in Section 4.01 are satisfied (or waived in accordance with Section 9.02), which
date is November 23, 2004.
"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 TWE (or, at any time after Moody's or
S&P has assigned a rating to the senior unsecured long-term debt of TWC, TWC),
and with respect to any Eurodollar Loan, the applicable rate per annum set forth
below expressed in Basis Points under the caption "Eurodollar Loan Spread" based
upon the senior unsecured long-term debt credit rating (or an equivalent
thereof) (in each case, a "Rating") assigned by Moody's and S&P, respectively,
applicable on such date to TWE (or, at any time after Moody's or S&P has
assigned a rating to the senior unsecured long-term debt of TWC, TWC):
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Ratings Eurodollar Loan Facility Fee
S&P / Moody's Spread Rate
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Category A 22.0 8.0
A / A2
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Category B
A- / A3 28.5 9.0
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Category C
BBB+ / Baa1 39.0 11.0
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Category D 50.0 12.5
BBB / Baa2
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Category E
BBB- / Baa3 57.5 17.5
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Category F 62.5 25.0
Lower than BBB- /Baa3
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For purposes of determining the Applicable Rate (A) if either Moody's or
S&P shall not have in effect a relevant Rating (other than by reason of the
circumstances referred to in clause (C) of this definition), then the Rating
assigned by the other rating agency shall be used; (B) if the relevant Ratings
assigned by Moody's and S&P shall fall within different Categories, the
Applicable Rate shall be based on the higher of the two Ratings unless one of
the two Ratings is two or more Categories lower than the other, in which case
the Applicable Rate shall be determined by reference to the Category next below
that of the higher of the two ratings; (C) if either rating agency shall cease
to assign a relevant Rating solely because TWE (or, at any time after Moody's or
S&P has assigned a rating to the senior unsecured long-term debt of TWC, TWC)
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, but including as a result of the announcement of an initial Rating with
respect to TWC's senior unsecured long-term debt), 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, TWC 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 X.X. Xxxxxx Securities Inc. and Citigroup Global Markets
Inc.
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"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 Amendment
Effective Date to but excluding the Commitment Termination Date.
"Basis Point" means 1/100th of 1%.
"Board" means the Board of Governors of the Federal Reserve System of the
United States.
"Borrower" means each of TWC and TWE.
"Borrowing" means (a) Revolving Loans of the same Type, made, converted or
continued on the same date and, in the case of Eurodollar Loans, as to which a
single Interest Period is in effect 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, when used in connection with a Eurodollar Loan,
the term "Business Day" shall also exclude any day on which banks are not open
for dealings in Dollar deposits in the London interbank market.
"Capital Lease Obligations" of any Person means the obligations of such
Person to pay rent or other amounts under any lease of (or other arrangement
conveying the right to use) real or personal property, or a combination thereof,
which obligations are required to be classified and accounted for as capital
leases on a balance sheet of such Person under GAAP, and the amount of such
obligations shall be the capitalized amount thereof determined in accordance
with GAAP.
"Capital Stock" means, with respect to any Person, any and all shares,
partnership interests or other equivalents (however designated and whether
voting or non-voting) of such Person's equity, whether outstanding on the date
hereof or hereafter issued, and any and all equivalent ownership interests in a
Person (other than a corporation) and any and all rights, warrants or options to
purchase or acquire or exchangeable for or convertible into such shares,
partnership interests or other equivalents.
"Cash Equivalents" means (a) securities issued or directly and fully
guaranteed or insured by the United States or any agency or instrumentality
thereof (provided that the full faith and credit of the United States is pledged
in support thereof) that (i) have maturities of not more than six months from
the date of acquisition thereof or (ii) are subject to a repurchase agreement
with an institution described in clause (b)(i) or (ii) below exercisable within
six months from the date of acquisition thereof, (b) U.S. Dollar-denominated and
Eurodollar time deposits, certificates of deposit and bankers' acceptances of
(i) any domestic commercial bank of recognized standing having capital and
surplus in excess of $500,000,000 or (ii) any bank whose short-term commercial
paper rating from S&P is at least A-2 or the equivalent thereof, from Xxxxx'x is
at least P-2 or the equivalent thereof or from
5
Fitch is at least F-2 or the equivalent thereof (any such bank, an "Approved
Lender"), in each case with maturities of not more than six months from the date
of acquisition thereof, (c) commercial paper and variable and fixed rate notes
issued by any Lender or Approved Lender or by the parent company of any Lender
or Approved Lender and commercial paper, auction rate notes and variable rate
notes issued by, or guaranteed by, any industrial or financial company with a
short-term commercial paper rating of at least A-2 or the equivalent thereof by
S&P or at least P-2 or the equivalent thereof by Moody's or at least F-2 or the
equivalent thereof by Fitch, and in each case maturing within six months after
the date of acquisition thereof, (d) securities with maturities of one year or
less from the date of acquisition issued or fully guaranteed by any state,
commonwealth or territory of the United States, by any political subdivision or
taxing authority of any such state, commonwealth or territory or by any foreign
government, the securities of which state, commonwealth, territory, political
subdivision, taxing authority or foreign government (as the case may be) are
rated at least A by S&P or A by Moody's, (e) securities with maturities of six
months or less from the date of acquisition backed by standby letters of credit
issued by any Lender or any commercial bank satisfying the requirements of
clause (b) of this definition, (f) tax-exempt commercial paper of U.S.
municipal, state or local governments rated at least A-2 or the equivalent
thereof by S&P or at least P-2 or the equivalent thereof by Moody's or at least
F-2 or the equivalent thereof by Fitch and maturing within six months after the
date of acquisition thereof, (g) shares of money market mutual or similar funds
sponsored by any registered broker dealer or mutual fund distributor, (h)
repurchase obligations entered into with any bank meeting the qualifications of
clause (b) above or any registered broker dealer whose short-term commercial
paper rating from S&P is at least A-2 or the equivalent thereof or from Xxxxx'x
is at least P-2 or the equivalent thereof or from Fitch is at least F-2 or the
equivalent thereof, having a term of not more than 30 days, with respect to
securities issued or fully guaranteed or insured by the United States government
or residential whole loan mortgages, and (i) demand deposit accounts maintained
in the ordinary course of business.
"Change in Control" means (a) a Person or "group" (within the meaning of
Section 13(d) and 14(d) of the Exchange Act) other than Time Warner and/or its
Subsidiaries 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 TWC
(including options to acquire such voting power), (b) persons who are directors
of TWC as of the date hereof or persons designated or approved by such directors
ceasing to constitute a majority of the board of directors of TWC, (c) TWC
ceasing to own and control of record and beneficially securities (or options to
purchase securities) representing at least 51% of the ordinary voting power of
TWE (including options to acquire such voting power) or (d) in the event TWCNY
is no longer a general partner of TWE, TWCNY ceasing to guarantee the
Obligations of TWE pursuant to terms reasonably satisfactory to the
Administrative Agent.
"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.
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"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 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
amount of each Lender's Commitment as of the Amendment Effective Date 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 Amendment 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 Exposures of the Lenders then in effect and (b) the
denominator of which is the sum of the aggregate amount of the Commitments of
the Lenders then in effect.
"Companies" means each of the Borrowers 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 TWC (which consent shall not be unreasonably
withheld); provided, that the designation by any Lender of a Conduit Lender
shall not relieve the designating Lender of any of its obligations to fund a
Loan under this Agreement if, for any reason, its Conduit Lender fails to fund
any such Loan, and the designating Lender (and not the Conduit Lender) shall
have the sole right and responsibility to deliver all consents and waivers
required or requested under this Agreement with respect to its Conduit Lender,
and provided, further, that no Conduit Lender shall (a) be entitled to receive
any greater amount pursuant to Section 2.14, 2.15, 2.16 or 9.03 than the
designating Lender would have been entitled to receive in respect of the Loans
made by such Conduit Lender or (b) be deemed to have any Commitment. The making
of a Loan by a Conduit Lender hereunder shall utilize the Commitment of a
designating Lender to the same extent, and as if, such Loan were made by such
designating Lender.
"Consolidated EBITDA" means, for any period, Consolidated Net Income of TWC
and its Restricted Subsidiaries for such period plus, without duplication and to
the extent reflected as a charge in the statement of such Consolidated Net
Income of TWC and its Restricted Subsidiaries for such period, the sum of (a)
income tax expense, (b) interest expense, amortization or writeoff of debt
discount and debt issuance costs and commissions, discounts and other fees and
charges associated with Indebtedness (including the Loans), (c) depreciation and
7
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 TWC, 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 Interest Coverage Ratio" means, for any period, the ratio of
(a) Consolidated EBITDA for such period to (b) Consolidated Interest Expense for
such period.
"Consolidated Interest Expense" means, for any period, total cash interest
expense (including that attributable to Capital Lease Obligations) of TWC and
its Restricted Subsidiaries for such period with respect to all outstanding
Indebtedness of TWC and its Restricted Subsidiaries (other than the amount
amortized during such period in respect of all fees paid in connection with the
incurrence of such Indebtedness), such expense to be determined on a
consolidated basis in accordance with GAAP.
"Consolidated Leverage Ratio" means, as at the last day of any period, the
ratio of (a) Consolidated Total Debt on such day to (b) Consolidated EBITDA for
such period.
"Consolidated Net Income" means, for any period, the consolidated net
income (or loss) of TWC 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 TWC or is merged into or
consolidated with TWC or any of its Subsidiaries or that such other Person's
assets are acquired by TWC or any of its Subsidiaries, (b) the income (or
deficit) of any Person (other than a Restricted Subsidiary) in which TWC or any
of its Subsidiaries has an ownership interest, except to the extent that any
such income is actually received by TWC or its Restricted Subsidiaries in the
form of dividends or similar distributions and (c) the undistributed earnings of
any Subsidiary of TWC 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 TWC shall not be excluded by reason of this clause (c) so
long as such Subsidiary guarantees the Obligations.
"Consolidated Total Assets" means, at any date, all amounts that would, in
conformity with GAAP, be included on a consolidated balance sheet of TWC and its
Subsidiaries under total assets at such date; provided that such amounts shall
be calculated in accordance with Section 1.04.
8
"Consolidated Total Debt" means, at any date, the aggregate principal
amount of Indebtedness of TWC and its Restricted Subsidiaries minus (a) the
aggregate principal amount of any such Indebtedness that is payable either by
its terms or at the election of the obligor in equity securities of TWC or the
proceeds of options in respect of such equity securities and (b) the aggregate
amount of cash and Cash Equivalents held by TWC or any of its Restricted
Subsidiaries in excess of $25,000,000, all determined on a consolidated basis in
accordance with GAAP.
"Control" means the possession, directly or indirectly, of the power to
direct or cause the direction of the management or policies of a Person, whether
through the ability to exercise voting power, by contract or otherwise.
"Controlling" and "Controlled" have meanings correlative thereto.
"Copyright Liens" means any Liens granted by any Borrower or any of its
Subsidiaries on copyrights relating to movies or other programming, which movies
or other programming are subject to one or more contracts entitling such
Borrower or Subsidiary to future payments in respect of such movies or other
programming and which contractual rights to future payments are to be
transferred by such Borrower or Subsidiary to a special purpose Subsidiary of
such Borrower or Subsidiary organized for the purpose of monetizing such rights
to future payments, provided that such Liens (a) are granted directly or
indirectly for the benefit of the special purpose Subsidiary and/or the Persons
who purchase such contractual rights to future payments from such special
purpose Subsidiary and (b) extend only to the copyrights for the movies or other
programming subject to such contracts for the purpose of permitting the
completion, distribution and exhibition of such movies or other programming.
"Credit Documents" means this Agreement, the Guarantees and each Note.
"Credit Parties" means the Borrowers, the Supplemental Guarantors, TWCNY
and the TWCNY Guarantors; and "Credit Party" means any of them.
"Default" means any event or condition which constitutes an Event of
Default or which upon notice, lapse of time or both would, unless cured or
waived, become an Event of Default.
"Defaulting Lender" means any Lender which fails to make any Loan or issue
any Letter of Credit required to be made or issued by it in accordance with the
terms and conditions of this Agreement.
"Dollars" or "$" refers to lawful money of the United 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,
9
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 Borrower or any of its ERISA Affiliates of any
unfunded liability under Title IV of ERISA with respect to the termination of
any Plan; (e) the receipt by any Borrower 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 Borrower or any of its ERISA Affiliates of any liability with respect to
the withdrawal or partial withdrawal from any Plan or Multiemployer Plan; (g)
the receipt by any Borrower or any ERISA Affiliate of any notice concerning the
imposition on such entity of Withdrawal Liability or a determination that a
Multiemployer Plan with respect to which such entity is obligated to contribute
or is otherwise liable is, or is expected to be, insolvent or in reorganization,
within the meaning of Title IV of ERISA; or (h) the occurrence, with respect to
a Plan or a Multiemployer Plan, of a nonexempt "prohibited transaction" (within
the meaning of Section 4975 of the Code or Section 406 of ERISA) which could
reasonably be expected to result in liability to a Borrower.
"Eurodollar" when used in reference to any Loan or Borrowing, refers to a
Loan, or the Loans comprising such Borrowing, bearing interest at a rate
determined by reference to the Adjusted LIBO Rate.
"Event of Default" has the meaning assigned to such term in Article VII.
"Exchange Act" means the Securities and Exchange Act of 1934, as amended.
"Excluded Taxes" means, with respect to the Administrative Agent, the
Issuing Bank, 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 TWC under
10
Section 2.18(b)), any withholding tax that (i) is imposed on amounts payable to
such Foreign Lender at the time such Foreign Lender becomes a party to this
Agreement or designates a new lending office or (ii) is attributable to such
Foreign Lender's failure or inability to comply with Section 2.16(e), except to
the extent that such Foreign Lender (or its assignor, if any) was entitled, at
the time of such designation of a new lending office or assignment, to receive
additional amounts from such Credit Party with respect to such withholding tax
pursuant to Section 2.16(a) and (d) in the case of a Lender that is a U.S.
Person, any withholding tax that is attributable to the Lender's failure to
comply with Section 2.16(f).
"Existing Five-Year Credit Agreement" has the meaning assigned to such term
in the recitals to this Agreement.
"Existing 364-Day Agreement" means the 364-Day Credit Agreement, dated as
of December 9, 2003, among TWC, TWE, the lenders referred to therein, Citicorp
North America, Inc. and Deutsche Bank AG, New York Branch, 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.
"Existing Three-Year Credit Agreement" means the Three-Year Credit
Agreement, dated as of December 9, 2003, among TWC, the lenders referred to
therein, Citicorp North America, Inc. and Deutsche Bank AG, New York Branch, 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.
"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.
"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,
11
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.
"Guarantees" means, collectively, the Primary Guarantee, the Supplemental
Guarantee and the TWCNY Guarantees.
"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 with respect to any Supplemental Guarantor,
the percentage of the Obligations of TWE being guaranteed by such Supplemental
Guarantor, with the Guaranteed Percentage of each Supplemental Guarantor being
as follows: Warner Communications Inc.: 59.27%; American Television and
Communications Corporation: 40.73%; provided that the Guaranteed Percentage of
any Supplemental 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 Supplemental Guarantor; provided further that at all times
the sum of the Guaranteed Percentages of all Supplemental Guarantors shall equal
100%.
"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
operating leases), (e) all obligations of such Person in respect of the deferred
purchase price of
12
property or services (excluding current accounts payable incurred in the
ordinary course of business and payment obligations of such Person pursuant to
agreements entered into in the ordinary course of business, which payment
obligations are contingent on another Person's satisfactory provision of
services or products), (f) all Indebtedness of others secured by (or for which
the holder of such Indebtedness has an existing right, contingent or otherwise,
to be secured by) any Lien (other than Copyright Liens or Liens on interests or
Investments in Unrestricted Subsidiaries) on property owned or acquired by such
Person, whether or not the Indebtedness secured thereby has been assumed (but
only to the extent of the lesser of the fair market value of the property
subject to such Lien and the amount of such Indebtedness), (g) all Guarantee
Obligations of such Person with respect to Indebtedness of others (except to the
extent that such Guarantee Obligation guarantees Indebtedness of a Restricted
Subsidiary), (h) all Capital Lease Obligations of such Person, (i) all
obligations, contingent or otherwise, of such Person as an account party in
respect of letters of credit (but only to the extent of all drafts drawn
thereunder) and (j) all obligations, contingent or otherwise, of such Person in
respect of bankers' acceptances. Notwithstanding the foregoing, Indebtedness
shall not include (i) any obligation of such Person to guarantee performance of,
or enter into indemnification agreements with respect to, obligations, entered
into in the ordinary course of business, under any and all Franchises, leases,
performance bonds, franchise bonds and obligations to reimburse drawings under
letters of credit issued in lieu of performance or franchise bonds or (ii)
obligations to make Tax Distributions. The Indebtedness of any Person shall
include the Indebtedness of any other entity (including any partnership in which
such Person is a general partner) to the extent such Person is liable therefor
as a result of such Person's ownership interest in or other contractual
relationship with such entity, except to the extent the terms of such
Indebtedness provide that such Person is not liable therefor.
"Indemnified Taxes" means Taxes other than Excluded Taxes.
"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 ABR Loan, the last
day of each March, June, September and December and (b) with respect to any
Eurodollar Loan, the last day of the Interest Period applicable to the Borrowing
of which such Loan is a part and, in the case of a Eurodollar Borrowing with an
Interest Period of more than three months' duration, each day that is three
months, or a whole multiple thereof, after the first day of such Interest Period
and the last day of such Interest Period.
"Interest Period" means with respect to any Eurodollar Borrowing the period
commencing on the date of such Borrowing and ending on the numerically
corresponding day in the calendar month that is (a) one, two, three or six
months (or, with the consent of each Lender, a shorter period or nine 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
13
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, N.A., or any Lender or Affiliate
of any Lender designated by TWC 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 TWC, in its capacity as an issuer of Letters 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, N.A., 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 $300,000,000.
"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.
14
"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, with respect to any Eurodollar Borrowing denominated in
Dollars for any Interest Period, the rate appearing 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 Dollar deposits in the
London interbank market) at approximately 11:00 a.m., London time, two Business
Days prior to the commencement of such Interest Period, as the rate for Dollar
deposits with a maturity comparable to such Interest Period. In the event that
such rate is not available at such time for any reason, then the "LIBO Rate"
with respect to such Eurodollar Borrowing for such Interest Period shall be the
rate per annum (rounded upwards, if necessary, to the next Basis Point) equal to
the arithmetic average of the rates at which deposits in Dollars approximately
equal in principal amount to $5,000,000 and for a maturity comparable to such
Interest Period are offered with respect to any Eurodollar Borrowing to the
principal London offices of the Reference Banks (or, if any Reference Bank does
not at the time maintain a London office, the principal London office of any
Affiliate of such Reference Bank) in immediately available funds in the London
interbank market at approximately 11:00 a.m., London time, two Business Days
prior to the commencement of such Interest Period 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 Banks) as
aforesaid, the LIBO Rate with respect to such Eurodollar 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.
"Material Adverse Effect" means a material adverse effect on (a) the
financial condition, business, results of operations, properties or liabilities
of TWC 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 (except, in the case of any
Supplemental Guarantor, as a result of the events described in Section 9.14) or
(c) the rights of or benefits available to the Lenders under any Credit
Document.
15
"Material Indebtedness" means Indebtedness (other than the Loans and
Letters of Credit), of any one or more of TWC and its Subsidiaries in an
aggregate principal amount exceeding $200,000,000.
"Material Subsidiary" means, at any date, each Subsidiary of TWC which,
either alone or together with the Subsidiaries of such Subsidiary, meets any of
the following conditions:
(a) as of the last day of TWC's most recently ended fiscal quarter for
which financial statements have been filed with the SEC or furnished to the
Administrative Agent pursuant to Section 5.1, the investments of TWC 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 TWC
and its consolidated Subsidiaries;
(b) for the period of four consecutive fiscal quarters ended on the last
day of TWC's most recently ended fiscal quarter for which financial statements
have been filed with the SEC or furnished to the Administrative Agent pursuant
to Section 5.1, the equity of TWC and its Subsidiaries in the revenues from
continuing operations of the Subsidiary in question exceeds 10% of the revenues
from continuing operations of TWC and its consolidated Subsidiaries; or
(c) for the period of four consecutive fiscal quarters ended on the last
day of TWC's most recently ended fiscal quarter for which financial statements
have been filed with the SEC or furnished to the Administrative Agent pursuant
to Section 5.1, the equity of TWC and its Subsidiaries in the Consolidated
EBITDA of the Subsidiary in question exceeds 10% of the Consolidated EBITDA of
TWC.
"Maturity Date" means the fifth anniversary of the Amendment Effective
Date.
"Moody's" means Xxxxx'x Investors Service, Inc.
"Multiemployer Plan" means a multiemployer plan as defined in Section
4001(a)(3) of ERISA.
"Note" means any promissory note evidencing Loans issued pursuant to
Section 2.09(e).
"Obligations" has the meaning assigned to such term in the Primary
Guarantee.
"Officer's Certificate" means a certificate executed by the Chief Financial
Officer, the Treasurer or the Controller of TWC or such other officer of TWC
reasonably acceptable to the Administrative Agent and designated as such in
writing to the Administrative Agent by TWC.
"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.
16
"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.
"Primary Guarantee" means (a) the guarantee by TWC of the Obligations of
TWE and (b) the guarantee by TWE of the Obligations of TWC, substantially in the
form of Exhibit B.
"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, N.A., Deutsche Bank AG, New
York Branch, 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 Borrower, any of the Chief Executive
Officer, Chief Legal Officer, Chief Financial Officer, Treasurer or Controller
(or any equivalent of the foregoing officers) of such Borrower.
"Restricted Payment" means, as to any Person, any dividend or other
distribution (whether in cash, securities or other property) with respect to any
shares of any class of capital stock or other equity interests of such Person,
or any payment (whether in cash, securities or other property), including any
sinking fund or similar deposit, on account of the purchase, redemption,
retirement, acquisition, cancellation or termination of any such shares of
capital stock or other equity interests of such Person or any option, warrant or
other right to acquire any such shares of capital stock or other equity
interests of such Person.
17
"Restricted Subsidiaries" means, as of any date, all Subsidiaries of TWC
that have not been designated as Unrestricted Subsidiaries by TWC pursuant to
Section 6.08 or have been so designated as Unrestricted Subsidiaries by TWC but
prior to such date have been (or have been deemed to be) re-designated by TWC 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 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.
"S.A. Partnership" means Time Warner Cable San Antonio, L.P., a Delaware
limited partnership, which is wholly-owned, directly or indirectly, by TWC.
"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. Eurodollar Loans shall be deemed to constitute
eurocurrency funding and to be subject to such reserve requirements without
benefit of or credit for proration, exemptions or offsets that may be available
from time to time to any Lender under such Regulation D or any comparable
regulation. The Statutory Reserve Rate shall be adjusted automatically on and as
of the effective date of any change in any reserve percentage.
"Subsidiary" means, with respect to any Person (the "parent") at any date,
any corporation, limited liability company, partnership, association or other
entity the accounts of which would be consolidated with those of the parent in
the parent's consolidated financial statements if such financial statements were
prepared in accordance with GAAP as of such date, as well as any other
corporation, limited liability company, partnership, association or other entity
of which securities or other ownership interests representing more than 50% of
the equity or more than 50% of the ordinary voting power or, in the case of a
partnership, more than 50% of the general partnership interests are, as of such
date, owned, controlled or held. Unless otherwise qualified, all references to a
"Subsidiary" or "Subsidiaries" in this Agreement shall refer to a Subsidiary or
Subsidiaries of TWC.
"Supplemental Guarantee" means a guarantee by a Supplemental Guarantor of
its Guaranteed Percentage of the Obligations of TWE, substantially in the form
of Exhibit C.
"Supplemental Guarantor" means American Television and Communications
Corporation and Warner Communications Inc., in each case for so long as the
Supplemental Guarantee remains in effect with respect to such Person.
18
"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, N.A. (or any other Lender
selected by TWC 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.
"Time Warner" means Time Warner Inc., a Delaware corporation.
"Transactions" means (a) the execution, delivery and performance by TWC and
TWE of this Agreement and the Primary Guarantee, (b) the execution, delivery and
performance by each of the Supplemental Guarantors of the Supplemental
Guarantee, (c) the execution, delivery and performance by each of the TWCNY
Guarantors and of TWCNY of the TWCNY Guarantee, if any, provided by such Person
and (d) the borrowing of Loans.
"Texas Restructuring" means the formation of the S.A. Partnership and the
contribution thereto of TWC's cable systems located in the San Antonio, Texas
vicinity.
"TWC" has the meaning assigned to such term in the preamble hereto.
"TWCNY" means Time Warner NY Cable LLC, a Delaware limited liability
company.
"TWCNY Guarantee" means, collectively, (a) the guarantees of the TWCNY
Guarantors, substantially in the form of Exhibit D, and (b) any guarantee
delivered by TWCNY pursuant to clause (d) of the definition of "Change of
Control".
"TWCNY Guarantors" means S.A. Partnership and WV LLC.
"TWE" has the meaning assigned to such term in the preamble hereto.
"TWEAN" means Time Warner Entertainment/Advance Xxxxxxxx Partnership, a New
York general partnership.
19
"Type" when used in reference to any Loan or Borrowing, refers to whether
the rate of interest on such Loan, or on the Loans comprising such Borrowing, is
determined by reference to the Adjusted LIBO Rate or the Alternate Base Rate.
"United States" means the United States of America.
"U.S. Person" means a person who is a citizen or resident of the United
States and any corporation or other entity created or organized in or under the
laws of the United States.
"Unrestricted Subsidiary" means, as of any time, all Subsidiaries of TWC
that have been designated as Unrestricted Subsidiaries by TWC 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.
"WV LLC" means Time Warner Cable West Virginia LLC, a Delaware limited
liability company, which is wholly-owned, directly or indirectly, by TWC.
"WV Restructuring" means the formation of the WV LLC and the contribution
thereto of TWC's cable systems located in the Clarksburg, West Virginia
vicinity.
SECTION 1.02. Classification of Loans and Borrowings. For purposes of
this Agreement, Loans may be classified and referred to by Type (e.g., a
"Eurodollar Loan" or an "ABR Loan"). Borrowings also may be classified and
referred to by Type (e.g., a "Eurodollar Borrowing" or an "ABR Borrowing").
SECTION 1.03. Terms Generally. The definitions of terms herein shall
apply equally to the singular and plural forms of the terms defined. Whenever
the context may require, any pronoun shall include the corresponding masculine,
feminine and neuter forms. The words, "include," "includes" and "including"
shall be deemed to be followed by the phrase "without limitation." The word
"will" shall be construed to have the same meaning and effect as the word
"shall." Unless the context requires otherwise (a) any definition of or
reference to any agreement, instrument or other document herein shall be
construed as referring to such agreement, instrument or other document as from
time to time amended, supplemented or otherwise modified (subject to any
restrictions on such amendments, supplements or modifications set forth herein),
(b) any reference herein to any Person shall be construed to include such
Person's successors and assigns (including any successor of TWC pursuant to any
merger or consolidation permitted under Section 6.04), (c) the words "herein,"
"hereof" and "hereunder," and words of similar import, shall be construed to
refer to this Agreement in its entirety and not to any particular provision
hereof, (d) all references herein to Articles, Sections, Exhibits and Schedules
shall be construed to refer to Articles and Sections of, and Exhibits and
Schedules to, this Agreement and (e) the words "asset" and "property" shall,
except where the context dictates otherwise, be construed to have the same
meaning and effect and to refer to any and all tangible and intangible assets
and properties, including cash, securities, accounts and contract rights.
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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 TWC notifies the Administrative Agent that TWC 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 TWC that the Required Lenders
request an amendment to any provision hereof for such purpose), regardless of
whether any such notice is given before or after such change in GAAP or in the
application thereof, then such provision shall be interpreted on the basis of
GAAP as in effect and applied immediately before such change shall have become
effective until such notice shall have been withdrawn or such provision amended
in accordance herewith.
ARTICLE II
The Credits
SECTION 2.01. Commitments. Subject to the terms and conditions set forth
herein, each Lender agrees to make Revolving Loans to each Borrower in Dollars
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, and (ii) the sum of the total Revolving Credit Exposures
will not exceed the sum total of the Commitments. 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 may from time
to time be Eurodollar Loans or ABR 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.
SECTION 2.02. Loans and Borrowings. (a) Each Borrowing of Revolving Loans
shall consist of Revolving Loans made by the Lenders ratably in accordance with
their respective Commitments. The failure of any Lender to make any Loan
required to be made by it shall not relieve any other Lender of its obligations
hereunder.
(b) Subject to Section 2.13, each Revolving Borrowing shall be comprised of
ABR Loans or Eurodollar Loans as the applicable Borrower may request in
accordance herewith. Each Swingline Loan shall be an ABR Loan. Each Lender at
its option may make any Eurodollar Loan by causing any domestic or foreign
branch or Affiliate of such Lender to make such Loan; provided that any exercise
of such option shall (i) subject to following clause (ii), not affect the
obligation of the Borrower thereof to repay such Loan in accordance with the
terms of this Agreement and (ii) not create any additional liability of the
Borrower thereof in respect of Sections 2.14 or 2.16.
(c) At the commencement of each Interest Period for any Eurodollar
Borrowing, such Borrowing shall be in an aggregate amount that is an integral
multiple of $1,000,000 and not less than $20,000,000. At the time that any ABR
Borrowing is made, such Borrowing shall be in an aggregate amount that is an
integral multiple of $1,000,000 and not less than $20,000,000; provided that any
ABR 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
and not less than
21
$5,000,000. Borrowings of more than one Type may be outstanding at the same
time; provided that there shall not at any time be more than a total of 15
Eurodollar Borrowings outstanding.
(d) Notwithstanding any other provision of this Agreement, 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). 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 of the requested Borrowing,
(b) the date of such Borrowing, which shall be a Business Day;
(c) whether such Borrowing is to be an ABR Borrowing or a Eurodollar
Borrowing;
(d) in the case of a Eurodollar Borrowing, the initial Interest Period to
be applicable thereto, which shall be a period contemplated by the definition of
the term "Interest Period"; and
(e) the location and number of the 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 an ABR
Borrowing. If no Interest Period is specified with respect to any requested
Eurodollar 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 in Dollars 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 $100,000,000 and (ii) the sum of the
total Revolving Credit Exposures will not exceed the sum total of the
Commitments; 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.
(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
22
Schedule 2.03(A). Each such notice shall be irrevocable and shall specify 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., New York 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, New York 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 an ABR 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 Dollars 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
23
Availability Period. 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.
(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 New York 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 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, and (iii)
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, New York 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
24
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 by paying to the Issuing Bank an amount equal to such LC
Disbursement not later than 2:00 p.m., New York 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 an ABR
Borrowing in the principal amount 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. 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 ABR Borrowing, and the Issuing
Bank shall notify the Administrative Agent, who shall notify each Lender of the
applicable LC Disbursement and corresponding ABR 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 ABR
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 ABR 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
25
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 ABR Loans; 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(d) 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 TWC, the replaced Issuing Bank and the
successor Issuing Bank. TWC 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(c). 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.
26
(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 issued under the
Existing Five-Year Credit Agreement which is outstanding on the Amendment
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 Amendment
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 the Borrowers 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 Amendment 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, New York time, 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 time 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, the Alternate Base
Rate, 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 Eurodollar Borrowing, shall have an initial Interest Period as
specified in such Borrowing Request. Thereafter, the applicable Borrower may
elect to convert such Borrowing to a different Type or to continue such
Borrowing and, in the case of a Eurodollar Borrowing, may elect Interest Periods
therefor, all as provided in this Section. The applicable Borrower may elect
different
27
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 ABR 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 if 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 an ABR Borrowing or a
Eurodollar Borrowing;
(iv) if the resulting Borrowing is a Eurodollar Borrowing, the Interest
Period to be applicable thereto after giving effect to such election, which
shall be a period contemplated by the definition of the term "Interest Period".
If any such Interest Election Request requests a Eurodollar Borrowing but does
not specify an Interest Period, then the applicable Borrower shall be deemed to
have selected an Interest Period of one month's duration.
(d) Promptly following receipt of an Interest Election Request, the
Administrative Agent shall advise each Lender of the details thereof and of such
Lender's portion of each resulting Borrowing.
(e) If the applicable Borrower fails to deliver a timely Interest Election
Request with respect to a Eurodollar Borrowing prior to the end of the Interest
Period applicable thereto, then, unless such Borrowing is repaid as provided
herein, at the end of such Interest Period, such Borrowing shall be continued as
a Eurodollar Borrowing, as the case may be, having a one month Interest Period.
Notwithstanding any contrary provision hereof, if an Event of Default has
occurred and is continuing and the Administrative Agent, at the request of the
Required Lenders, so notifies the 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 Eurodollar Borrowing
28
and (ii) unless repaid, each Eurodollar Borrowing shall be converted to an ABR
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) TWC 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 $10,000,000
and (ii) TWC 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) TWC 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 TWC pursuant to this Section shall be
irrevocable; provided that a notice of termination of the Commitments delivered
by TWC may state that such notice is conditioned upon the effectiveness of other
credit facilities, in which case such notice may be revoked by TWC (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 and (ii) 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 of each Loan made hereunder, the Type thereof, whether
such Loan is a Revolving Loan or a Swingline Loan 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.
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(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 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 Amendment 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 Amendment 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
30
"Utilization Fee") which shall accrue, with respect to any day that the
Commitment Utilization Percentage is greater than 50%, at the rate of 0.10% per
annum on such Lender's Revolving Credit Exposure on such day. 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 Eurodollar
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 Amendment 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 Amendment 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 Amendment 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 TWC 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 Eurodollar Borrowing shall bear interest at a
rate per annum equal to the Adjusted LIBO Rate for the Interest Period in effect
for such Borrowing plus the Applicable Rate.
(c) The Loans comprising each Swingline Borrowing shall bear interest at a
rate per annum equal to the Alternate Base Rate.
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(d) 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 ABR Loans as provided above.
(e) 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 (d) 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 Eurodollar
Loan prior to the end of the current Interest Period therefor, accrued interest
on such Loan shall be payable on the effective date of such conversion and (iv)
all accrued interest shall be payable upon the Commitment Termination Date.
(f) All interest hereunder shall be computed on the basis of a year of 360
days, except that interest computed by reference to the Alternate Base Rate at
times when the Alternate Base Rate is based on the Prime Rate shall be computed
on the basis of a year of 365 days (or 366 days in a leap year). The Alternate
Base Rate, Adjusted LIBO Rate and LIBO Rate shall be determined by the
Administrative Agent, and such determination shall be conclusive absent manifest
error.
SECTION 2.13. Alternate Rate of Interest. If prior to the commencement of
any Interest Period for a Eurodollar Borrowing:
(a) the Administrative Agent determines (which determination shall be
conclusive absent manifest error) that adequate and reasonable means do not
exist for ascertaining for such Interest Period the Adjusted LIBO Rate; or
(b) the Administrative Agent is advised by the Required Lenders that for
such Interest Period the Adjusted LIBO Rate will not adequately and fairly
reflect the cost to such Lenders of making or maintaining their Loans included
in such Borrowing for such Interest Period;
then the Administrative Agent shall give notice thereof to the 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
Eurodollar Borrowing 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, an ABR Borrowing, as the case may be (to the extent, in the
Administrative Agent's reasonable determination, it is practicable to do so),
and (ii) if any Borrowing Request requests a Eurodollar Borrowing, such
Borrowing shall, unless otherwise rescinded by the applicable Borrower, be made
as an ABR Loan (to the extent, in the Administrative Agent's reasonable
determination, it is practicable to do so), and if the
32
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 any other condition affecting this Agreement or Eurodollar 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 Eurodollar 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
33
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 Eurodollar Loan other than on the last day of an Interest
Period applicable thereto (including as a result of an Event of Default), (b)
the conversion of any Eurodollar Loan other than on the last day of the Interest
Period applicable thereto, (c) the failure to borrow, convert, continue or
prepay any 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 Eurodollar 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 Eurodollar
Loan, the loss to any Lender attributable to any such event shall be deemed to
include an amount determined by such Lender to be equal to the excess, if any,
of (i) the amount of interest that such Lender would pay for a deposit in
Dollars equal to the principal amount of such Loan for the period from the date
of such payment, conversion, failure or assignment to the last day of the then
current Interest Period for such Loan (or, in the case of a failure to borrow,
convert or continue, the duration of the Interest Period that would have
resulted from such borrowing, conversion or continuation) if the interest rate
payable on such deposit were equal to the Adjusted LIBO Rate for such Interest
Period, over (ii) the amount of interest that such Lender would earn on such
principal amount for such period if such Lender were to invest such principal
amount for such period at the interest rate that would be bid by such Lender (or
an affiliate of such Lender) for deposits in Dollars from other banks in the
Eurodollar market at the commencement of such period. A certificate of any
Lender setting forth in reasonable detail any amount or amounts that such Lender
is entitled to receive pursuant to this Section shall be delivered to the
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
34
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 Governmental 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 imposed by the
relevant Governmental Authority) 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 Governmental 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 TWC (with a copy to
the Administrative Agent) a statement signed by an authorized signatory of the
Lender that it is a
35
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., New York time, on the date when due, in immediately available funds,
without setoff or counterclaim. Any amounts received after such time on any date
shall, unless the Administrative Agent is able to distribute such amounts to the
applicable Lenders on such date, be deemed to have been received on the next
succeeding Business Day for purposes of calculating interest thereon. All such
payments shall be made to the Administrative Agent in New York at the offices
for the Administrative Agent set forth in Section 9.01, except 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 or other amounts payable hereunder,
shall be made in Dollars.
(b) If at any time insufficient funds are received by and available to the
Administrative Agent to pay fully all amounts of principal, 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
36
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, at the Federal Funds
Effective Rate.
(e) If any Lender shall fail to make any payment required to be made by it
pursuant to Section 2.04(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 TWC 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
37
assignee may be another Lender, if a Lender accepts such assignment); provided
that (i) TWC 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 TWC to require such
assignment and delegation cease to apply.
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 the
Restricted Subsidiaries is duly organized, validly existing and in good standing
under the laws of the jurisdiction of its organization, has all requisite power
and authority to carry on its business as now conducted and, except where the
failure to do so, individually or in the aggregate, could not reasonably be
expected to result in a Material Adverse Effect, is qualified to do business in,
and is in good standing in, every jurisdiction where such qualification is
required.
SECTION 3.02. Authorization; Enforceability. The Transactions are within
each Credit Party's corporate or partnership (as the case may be) powers and
have been duly authorized by all necessary corporate or partnership (as the case
may be) and, if required, stockholder or partner action of such Credit Party.
Each Credit Document (other than each Note) has been, and each Note when
delivered hereunder will have been, duly executed and delivered by each Credit
Party party thereto. Each Credit Document (other than each Note) constitutes,
and each Note when delivered hereunder will be, a legal, valid and binding
obligation of each Credit Party party thereto, enforceable in accordance with
its terms, subject to applicable bankruptcy, insolvency, reorganization,
moratorium or other laws affecting creditors' rights generally and subject to
general principles of equity, regardless of whether considered in a proceeding
in equity or at law.
SECTION 3.03. Governmental Approvals; No Conflicts. The Transactions (a) do
not require any consent or approval of, registration or filing with, or any
other action by, any Governmental Authority, except such as have been obtained
or made and are in full force and effect, (b) will not violate (i) any
applicable law or regulation or (ii) the charter, by-laws, partnership
agreements or other organizational documents of any Credit Party or any
Restricted Subsidiary or any order of any Governmental Authority, (c) will not
violate or result in a default under any indenture, agreement or other
instrument binding upon any Credit Party or any Restricted Subsidiary or its
assets, or give rise to a right thereunder to require any payment to be
38
made by any Credit Party or any Restricted Subsidiary and (d) will not result in
the creation or imposition of any Lien on any asset of any Credit Party or any
Restricted Subsidiary; except, in each case (other than clause (b)(ii) with
respect to any Borrower), such as could not, individually or in the aggregate,
reasonably be expected to result in a Material Adverse Effect.
SECTION 3.04. Financial Condition; No Material Adverse Change. (a) The
audited consolidated balance sheet and statements of operations, stockholders
equity and cash flows (including the notes thereto) of TWC and its consolidated
Subsidiaries as of and for the twelve months ended December 31, 2003, reported
on by Ernst & Young LLP, independent public accountants, copies of which have
heretofore been furnished to each Lender, when combined with all public filings
with the SEC by Time Warner since December 31, 2003 and prior to the Amendment
Effective Date, present fairly, in all material respects, the financial position
and results of operations and cash flows of TWC and its consolidated
Subsidiaries, as of such date and for such period, in accordance with GAAP.
(b) The unaudited consolidated balance sheet and the statements of
operations, stockholders equity and cash flows of TWC and its consolidated
Subsidiaries as of and for the six month period ended June 30, 2004, copies of
which have heretofore been furnished to each Lender, when combined with all
public filings with the SEC by Time Warner since December 31, 2003 and prior to
the Amendment Effective Date, present fairly, in all material respects, the
financial position and results of operations and cash flows of TWC and its
consolidated Subsidiaries, as of such date and for such period, in accordance
with GAAP, subject to normal year-end adjustments and the absence of footnotes.
(c) Since December 31, 2003 there has been no material adverse change in
the business, assets, operations or financial condition of TWC and its
consolidated 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 such Borrower,
threatened against or affecting such 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
39
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) such Borrower has no 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 Amendment 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 and the annexes, schedules and other
attachments to the Credit Documents, but not including any projected financial
statements), when taken together with the reports and other filings with the SEC
made under the Exchange Act by Time Warner since December 31, 2003, 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
Amendment 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 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 such Borrower is aware, could
40
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. Amendment 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, (ii)
the Primary Guarantee, executed and delivered by each Borrower and (iii) the
Supplemental Guarantee, executed and delivered by each Supplemental Guarantor.
(b) Opinion of Counsel. The Administrative Agent shall have received the
favorable written opinions (addressed to the Administrative Agent and the
Lenders and dated the Amendment Effective Date) of (i) Cravath, Swaine & Xxxxx
LLP, counsel for the Credit Parties and (ii) in-house counsel to the Credit
Parties, in each case in form and substance reasonably satisfactory to the
Administrative Agent. The Borrowers 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 Amendment 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 Amendment Effective Date by the Borrowers in connection with the
revolving credit facilities provided for in this Agreement.
(e) Termination of the Existing 364-Day Credit Agreement. All Indebtedness
outstanding under the Existing 364-Day Credit Agreement shall have been repaid
or concurrently repaid with proceeds of Loans on the Amendment Effective Date,
together with all interest thereon and other amounts owing in respect thereof,
all commitments thereunder shall have been cancelled and such agreement shall
have been terminated.
(f) Termination of the Existing Three-Year Credit Agreement. All
Indebtedness outstanding under the Existing Three-Year Credit Agreement shall
have been repaid or concurrently repaid with proceeds of Loans on the Amendment
Effective Date, together with all interest thereon and other amounts owing in
respect thereof, all commitments thereunder shall have been cancelled and such
agreement shall have been terminated.
41
(g) Authorizations, etc. The Administrative Agent shall have received such
documents and certificates as the Administrative Agent or its counsel may
reasonably request relating to the organization, existence and good standing of
the Credit Parties, the authorization of the Transactions and any other legal
matters relating to each Credit Party, this Agreement or the Transactions, all
in form and substance satisfactory to the Administrative Agent and its counsel.
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 each Borrower 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 Amendment 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 each
Borrower 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. TWC 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 TWC, TWC's audited
consolidated balance sheet and related statements of operations, stockholders'
equity and cash flows as of the end of and for such year and TWC's unaudited
Adjusted Financial Statements for such fiscal year, setting forth in each case
in comparative form the figures for the previous fiscal year, and, (i) in the
case of the audited financial statements, reported on by Ernst & Young LLP or
other independent public accountants of recognized national standing (without a
"going concern" or like qualification or exception and without any qualification
or exception as to the scope of such audit) to the effect that such consolidated
financial statements present fairly in all material respects the
42
financial condition and results of operations of TWC 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 TWC's Financial Officers as presenting fairly in all material respects
the financial condition and results of operations of TWC 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, TWC shall not be required to furnish Adjusted Financial
Statements for any fiscal year if all Unrestricted Subsidiaries (other than any
such Unrestricted Subsidiaries that are already treated as equity investments on
TWC's financial statements) on a combined basis would not have constituted a
Material Subsidiary for such fiscal year;
(b) within 60 days after the end of each of the first three fiscal quarters
of each fiscal year of TWC (including the fiscal quarter ending September 30,
2004), TWC's unaudited consolidated balance sheet and related statements of
operations, stockholders' equity and cash flows and TWC's unaudited Adjusted
Financial Statements as of the end of and for such fiscal quarter and the then
elapsed portion of the fiscal year, setting forth in each case in comparative
form the figures for the corresponding period or periods of (or, in the case of
the balance sheet, as of the end of) the previous fiscal year, all certified by
one of TWC's Financial Officers as presenting fairly in all material respects
the financial condition and results of operations of TWC and its consolidated
Subsidiaries on a consolidated basis in accordance with GAAP consistently
applied, subject to normal year-end adjustments and the absence of footnotes;
provided that, so long as no Event of Default has occurred and is continuing,
TWC shall not be required to furnish Adjusted Financial Statements for any
fiscal quarter if all Unrestricted Subsidiaries (other than any such
Unrestricted Subsidiaries that are already treated as equity investments on
TWC's financial statements) on a combined basis would not have constituted a
Material Subsidiary 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 TWC (i) certifying as to
whether a Default has occurred and, if a Default has occurred, specifying the
details thereof and any action taken or proposed to be taken with respect
thereto, (ii) setting forth reasonably detailed calculations demonstrating
compliance with Sections 6.01, 6.02(a) and 6.03(a) and (i) and (iii) stating
whether any change in GAAP or in the application thereof has occurred since the
date of the audited financial statements referred to in Section 3.04, which has
not been previously disclosed by TWC pursuant to this Section 5.01, and, if any
such change has occurred, specifying the effect of such change on the financial
statements accompanying such certificate;
(d) concurrently with the delivery of any financial statements of TWE to
any holder of Material Indebtedness of TWE, copies of such financial statements,
together with any certification of such financial statements required to be
delivered concurrently with such statements by the terms of such Indebtedness
(provided that such certificate shall be addressed to the Administrative Agent);
(e) promptly after the same become publicly available, copies of all
periodic and other reports, proxy statements and other materials filed by any
Company with the SEC or with any national securities exchange, or distributed by
any Company to its security
43
holders generally, as the case may be (other than registration statements on
Form S-8, filings under Sections 16(a) or 13(d) of the Exchange Act and routine
filings related to employee benefit plans); and
(f) promptly following any request therefor, such other information
regarding the operations, business affairs and financial condition of TWC 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 TWC and such Subsidiaries shall not be required to provide any information
or documents which are subject to confidentiality provisions the nature of which
prohibit such disclosure).
Information required to be delivered pursuant to paragraphs (a), (b), (c)
and (e) shall be deemed to have been delivered on the date on which TWC 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 a
Borrower's website on the internet at the website address listed on the
signature pages of such notice, at xxx.xxx.xxx or at another website identified
in such notice and accessible by the Lenders without charge; provided that TWC
shall deliver paper copies of the reports and financial statements referred to
in paragraphs (a), (b), (c) and (e) of this Section 5.01 to the Administrative
Agent or any Lender who requests TWC 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 such
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 TWC 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;
44
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. TWC's fiscal year will end on
December 31 and its fiscal quarters will end on dates consistent with such
fiscal year end.
45
SECTION 5.10. TWCNY Guarantee. On or prior to (a) the date the Texas
Restructuring is consummated, TWC shall cause the S.A. Partnership to execute
and deliver a TWCNY Guarantee to the Administrative Agent and (b) the date the
WV Restructuring is consummated, TWC shall cause the WV LLC to execute and
deliver a TWCNY Guarantee to the Administrative Agent
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 as of the last day of any period of
four consecutive fiscal quarters of TWC (including the fiscal quarter ending
September 30, 2004) will not exceed 5.00 to 1.00.
(b) The Consolidated Interest Coverage Ratio for any period of four
consecutive fiscal quarters of TWC (including the fiscal quarter ending
September 30, 2004) will not be less than 2.00 to 1.00.
SECTION 6.02. Indebtedness. Such Borrower will not permit any of its
Restricted Subsidiaries (other than 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 $1,000,000,000 at any time outstanding;
provided that the aggregate principal amount of Indebtedness of TWEAN permitted
by this clause (a) shall not exceed $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
46
exceed 110% of the purchase price for, or the cost of construction or
improvement of, such property; and
(e) Indebtedness of any Person that becomes a Restricted Subsidiary after
the date hereof; provided that (x) such Indebtedness exists at the time such
Person becomes a Subsidiary and is not created in contemplation of or in
connection with such Person becoming a Subsidiary and (y) such Indebtedness does
not, directly or indirectly, have recourse (including by way of setoff) to TWC
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.
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 TWC 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 TWC 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 TWC 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 TWC 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 TWC 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 TWC or any of its Subsidiaries;
(d) any Copyright Liens securing obligations specified in the definition
thereof;
(e) Liens securing Indebtedness of any Borrower or any Restricted
Subsidiary and owing to such Borrower or to a Restricted Subsidiary;
(f) Liens on interests in or investments in any Unrestricted Subsidiary or
in any other Person that is not a Subsidiary of TWC securing Indebtedness of
such Unrestricted Subsidiary or such other Person;
(g) Liens for taxes, assessments or governmental charges or levies not yet
due and payable or which are being contested in good faith by appropriate
proceedings;
47
(h) 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
(i) other Liens in respect of property or assets of TWC 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 TWC 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 Amendment
Effective Date, provided that (i) TWE shall not merge into or consolidate with
such other Person unless a Borrower (including any replacement or successor
Borrower pursuant to clause (ii) below) shall survive such consolidation or
merger; (ii) if a Borrower is not the survivor of any such consolidation or
merger involving TWC, (A) TWC, at the time thereof and immediately after giving
effect thereto, shall be in compliance on a pro forma basis with the financial
covenants contained in Section 6.01 as if such consolidation or merger had been
consummated (and any related Indebtedness incurred, assumed or repaid in
connection therewith had been incurred, assumed or repaid, as the case may be)
on the first day of the most recently completed four fiscal quarters of TWC for
which financial statements have been delivered pursuant to Section 5.01 (as
demonstrated by delivery to the Administrative Agent of a certificate of a
Responsible Officer to such effect showing such calculation in reasonable detail
prior to or concurrently with such consolidation or merger), (B) the surviving
Person of such consolidation or merger shall expressly assume all of TWC's
rights and obligations under this Agreement and the other Credit Documents
pursuant to documentation reasonably satisfactory to the Administrative Agent
and shall thereafter be deemed to be a Borrower for all purposes hereunder, (C)
such consolidation or merger will not result in a Change in Control and (D) the
Administrative Agent shall have received such legal opinions and certificates in
connection therewith as it may reasonably request; and (iii) a Borrower shall
not liquidate or dissolve except into the other Borrower.
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.
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SECTION 6.06. Restricted Payments. TWC will not declare or make, or agree
to pay or make, directly or indirectly, any Restricted Payment, except TWC 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 the Borrowers,
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 Borrower. TWC may designate
any other of its Subsidiaries (other than a Borrower) as Unrestricted
Subsidiaries from time to time in compliance with the provisions of this Section
6.08. TWC 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.
(b) TWC 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. TWC 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;
49
(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 TWC;
(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 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 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 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
50
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 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 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 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 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 or the terms of any
Guarantee, any Guarantee shall cease, for any reason, to be in full force and
effect with respect to any Guarantor or any Credit Party shall so assert; or
(n) a Change in Control shall occur;
then, and in every such event (other than an event with respect to 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 TWC, 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
51
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
52
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
53
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
Exposures) on the date on which indemnification is sought under this Article
VIII (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 paragraph shall
survive the payment of the Loans and all other amounts payable hereunder.
Each Lender acknowledges that it has, independently and without reliance
upon any Agent or any other Lender and based on such documents and information
as it has deemed appropriate, made its own credit analysis and decision to enter
into this Agreement. Each Lender also acknowledges that it will, independently
and without reliance upon any Agent or any other Lender and based on such
documents and information as it shall from time to time deem appropriate,
continue to make its own decisions in taking or not taking action under or based
upon this Agreement, any related agreement or any document furnished hereunder
or thereunder.
The Co-Syndication Agents and Co-Documentation Agents shall not have any
duties or responsibilities under any Credit Document 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 a Borrower, to it at One Time Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000, Attention of Chief Financial Officer (Facsimile No. (000) 000-0000), with
copies
54
to its General Counsel (Facsimile No. (000) 000-0000), and its Treasurer
(Facsimile No. (000) 000-0000);
(b) if to the Administrative Agent, to JPMorgan Chase Bank, N.A., Agent
Bank Services Group, 0000 Xxxxxxxx Xxxxxxxxx, Xxxxxxx, XX 00000, Attention of
Xxxxxxxxx Xxxx (Facsimile No. 713-219-1601), with a copy to JPMorgan Chase Bank,
N.A., 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention of Xxxx Xxxxxxxxxx
(Facsimile No. 212-270-4584); and
(c) if to a Swingline Lender, to it as may be provided by such Swingline
Lender from time to time;
(d) if to an Issuing Bank, to it as may be provided by such Issuing Bank
from time to time;
(e) 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)
amend, waive, modify or otherwise change Section 2.17(b) or (c) in a
55
manner that would alter the pro rata sharing of payments required thereby,
without the written consent of each Lender, (v) release either Borrower from its
obligations 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. It is understood and agreed that TWC shall be permitted to cause
additional Affiliates to, directly or indirectly, guarantee Obligations of the
Borrowers without the consent of any Lender or the Administrative Agent.
SECTION 9.03. Expenses; Indemnity; Damage Waiver. (a) The Borrowers shall
pay (i) all reasonable out-of-pocket expenses incurred by the Arrangers, the
Administrative Agent and its Affiliates, including the reasonable fees, charges
and disbursements of counsel for the Administrative Agent in connection with the
syndication of the credit facilities provided for herein, the preparation and
administration of the Credit Documents or any amendments, modifications or
waivers of the provisions thereof (whether or not the transactions contemplated
hereby or thereby shall be consummated), and (ii) all out-of-pocket expenses
incurred by the Agents, 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 the Borrowers shall only be required
to pay such fees, charges and disbursements of, a single counsel, unless (and to
the extent) conflicts of interests require the use of more than one counsel.
(b) The Borrowers shall 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 (or a Related Party of such Indemnitee).
56
(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 Borrower 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 Borrower without such consent
shall be null and void). Nothing in this Agreement, expressed or implied, shall
be construed to confer upon any Person (other than the parties hereto, their
respective successors and assigns permitted hereby (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 TWC, the Administrative Agent, the Swingline Lender
(but only in the case of an assignment of all or a portion of a Commitment in
respect of Swingline Exposure) and each Issuing Bank that has issued Letters of
Credit hereunder having an aggregate face amount in excess of $15,000,000 at the
time of such assignment (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 TWC and the Administrative Agent otherwise consents, (iv) each partial
assignment shall be
57
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 Amendment
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, 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 TWC 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,
58
(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
59
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 by such Lender or any Affiliate of such Lender that is primarily engaged in
commercial banking activities and other indebtedness at any time owing by such
Lender to or for the credit or the account of any of the Borrowers (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 Borrowers 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 Borrower hereby irrevocably and unconditionally submits, for
itself and its property, to the exclusive jurisdiction of the Supreme Court of
the State of New York sitting in New York County and of the United States
District Court of the Southern District of New
60
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 Borrower hereby irrevocably and unconditionally waives, to the
fullest extent it may legally and effectively do so, any objection which it may
now or hereafter have to the laying of venue of any suit, action or proceeding
arising out of or relating to this Agreement in any court referred to in
paragraph (b) of this Section. Each of the parties hereto hereby irrevocably
waives, to the fullest extent permitted by law, the defense of an inconvenient
forum to the maintenance of such action or proceeding in any such court.
(d) Each party to this Agreement irrevocably consents to service of process
in the manner provided for notices in Section 9.01. Nothing in this Agreement
will affect the right of any party to this Agreement to serve process in any
other manner permitted by law.
SECTION 9.10. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES, TO THE
FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY
JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING
TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY (WHETHER BASED ON
CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO
REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY
OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK
TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER
PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER
THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
SECTION 9.11. Headings. Article and Section headings and the Table of
Contents used herein are for convenience of reference only, are not part of this
Agreement and shall not affect the construction of, or be taken into
consideration in interpreting, this Agreement.
SECTION 9.12. Confidentiality. Each of the Administrative Agent and the
Lenders agrees to maintain the confidentiality of the Information (as defined
below), except that Information may be disclosed (a) to its and its Affiliates'
directors, officers, employees and agents, including accountants, legal counsel
and other advisors (it being understood that the Persons to whom such disclosure
is made will be informed of the confidential nature of such Information and
instructed to keep such Information confidential), (b) to the extent requested
by any regulatory authority (including any self-regulatory authority), (c) to
the extent required by applicable laws or regulations or by any subpoena or
similar legal process, provided that in connection with any such requirement by
a subpoena or similar legal process, TWC 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
61
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 TWC 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 a Borrower. For the purposes of
this Section, "Information" means all information received from a Borrower,
whether oral or written, relating to a Borrower 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 a Borrower; provided that, in
the case of information received from a Borrower after the date hereof, such
information is clearly identified at the time of delivery as confidential. Any
Person required to maintain the confidentiality of Information as provided in
this Section shall be considered to have complied with its obligation to do so
if such Person has exercised the same degree of care to maintain the
confidentiality of such Information as such Person would accord to its own
confidential information, including in accordance with Regulation FD as
promulgated by the SEC.
SECTION 9.13. Acknowledgements. 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 fiduciary duty to such 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 such
Borrower, on the other hand, in connection herewith or therewith is solely that
of debtor and creditor; and
(c) no joint venture is created hereby or by the other Credit Documents or
otherwise exists by virtue of the transactions contemplated hereby among the
Lenders or among such Borrower and the Lenders.
SECTION 9.14. Supplemental Guarantees. Notwithstanding anything herein or
in any Credit Document to the contrary, each Supplemental Guarantor shall
automatically be released from its obligations under the Supplemental Guarantee
upon the first to occur of (a) the termination of, or release of such
Supplemental Guarantor from, its existing guarantee of TWE's obligations under
the Indenture, dated as of April 30, 1992, among Historic TW Inc., TWE and the
other parties thereto and (b) the sale, transfer or other disposition of all or
substantially all of the combined assets of the Supplemental Guarantors (other
than their equity interest (if any) in TWC and its Subsidiaries) and, in such
case, any Guarantees of the Obligations of TWE by such Supplemental Guarantor
shall terminate without any further action.
SECTION 9.15. USA Patriot Act. Each Lender hereby notifies the Borrowers
that pursuant to the requirements of the USA Patriot Act (Title III of Pub. L.
107-56 (signed into law October 26, 2001)) (the "Act"), it is required to
obtain, verify and record information that identifies the Borrowers, which
information includes the name and address of each Borrower and other information
that will allow such Lender to identify the Borrowers in accordance with the
Act.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective authorized officers as of the day and year
first above written.
TIME WARNER CABLE INC.
By: /s/ Xxxxxx X. Xxxxx
------------------------------------
Name: Xxxxxx X. Xxxxx
Title: EVP, Treasurer and CFO
TIME WARNER ENTERTAINMENT COMPANY, L.P.
By: /s/ Xxxxxx Xxxxx
------------------------------------
Name: Xxxxxx X. Xxxxx
Title: EVP, Treasurer and CFO
JPMORGAN CHASE BANK, N.A., as
Administrative Agent and a
Reference Bank
By: /s/ Xxxx X. Fitzgibben
------------------------------------
Name: Xxxx X. Fitzgibben
Title: Managing Director
CITIBANK, N.A., as Co-Syndication Agent
and a Reference BanK
By: /s/ Xxxxxx Xxxxx
------------------------------------
Name: Xxxxxx Xxxxx
Title: Vice President
DEUTSCHE BANK AG NEW YORK BRANCH, as
Co-Syndication Agent and a
Reference Bank
By: /s/ Xxxxxxx McGianty
------------------------------------
Name: Xxxxxxx McGianty
Title: Director
ABN AMRO BANK N.V., as Co-Documentation
Agent
By: /s/ Xxxxxxx O'X. Xxxxx
------------------------------------
Name: Xxxxxxx O' X. Xxxxx
Title: Managing Director
BNP PARIBAS, as Co-Documentation Agent
By: /s/ Xxxxx Xxxxxx /s/ Xxxx Xxxxxxx
------------------------------------
Name: Xxxxx Xxxxxx Xxxx Xxxxxxx
Title: Managing Director Vice President
JPMorgan Chase Bank, N.A.
By: /s/ Xxxx X. Xxxxxxxxxx
--------------------------------
Name: Xxxx X. Xxxxxxxxxx
Title: Managing Director
CITIBANK, N.A.
By: /s/ Xxxxxx Xxxxx
--------------------------------
Name: Xxxxxx Xxxxx
Title: Vice President
Deutsche Bank AG New York Branch
By: /s/ Xxxxxxx XxXxxxx
--------------------------------
Name: Xxxxxxx XxXxxxx
Title: Director
By: /s/ Xxxxx Xxxxxxxxx, Jr.
--------------------------------
Name: Xxxxx Xxxxxxxxx, Jr.
Title: Director
ABN AMRO Bank N.V.
By: /s/ Xxxxxxx O'X. Xxxxx
--------------------------------
Name: Xxxxxxx O' X. Xxxxx
Title: Managing Director
By: /s/ Xxxxx Xxxxxxxxxx
--------------------------------
Name: Xxxxx Xxxxxxxxxx
Title: Director
BNP Paribas
By: /s/ Xxxxx Xxxxxx
--------------------------------
Name: Xxxxx Xxxxxx
Title: Managing Director
By: /s/ Xxxx Xxxxxxx
--------------------------------
Name: Xxxx Xxxxxxx
Title: Vice President
Bank of America, N.A.
By: /s/ Xxxxxx X. Xxxx
--------------------------------
Name: Xxxxxx X. Xxxx
Title: Senior Vice President
The Bank of Tokyo-Mitsubishi,
Ltd. New York Branch
By: /s/ Xxxxxxx Xxx
--------------------------------
Name: Xxxxxxx Xxx
Title: Authorized Signatory
Barclays Bank, PLC
By: /s/ Xxxxxxxx Xxxx
--------------------------------
Name: Xxxxxxxx Xxxx
Title: Director
HSBC Bank USA, National Association
By: /s/ Xxxxxx Xxxxxxx
--------------------------------
Name: Xxxxxx Xxxxxxx
Title: Senior Vice President
The Royal Bank of Scotland, plc
By: /s/ Xxxxx Dec
--------------------------------
Name: Xxxxx Dec
Title: Vice President
Sumitomo Mitsui Banking Corporation
By: /s/ Xxx X. Xxxxxxxxx
--------------------------------
Name: Xxx X. Xxxxxxxxx
Title: Senior Vice President
Wachovia Bank, NA
By: /s/ Xxxxx X. Xxxxxxxx
--------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Director
CALYON NEW YORK BRANCH
By: /s/ Xxxxxxx X. Xxxxx
--------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Managing Director
By: /s/ Stephane Ducroizet
--------------------------------
Name: Stephane Ducroizet
Title: Vice President
Dresdner Bank AG, New York and
Grand Cayman Branches
By: /s/ Xxxxx Xxxxx
--------------------------------
Name: Xxxxx Xxxxx
Title: Managing Director
By: /s/ Xxxxx Xxxxxxxxx
--------------------------------
Name: Xxxxx Xxxxxxxxx
Title: Vice President
WestLB AG, New York Branch
By: /s/ Xxxxxxx X. Xxxxxx
--------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Executive Director
By: /s/ Xxxxxxxxx Xxxxxxxxxx
-------------------------------
Name: Xxxxxxxxx Xxxxxxxxxx
Title: Managing Director
THE BANK OF NOVA SCOTIA
By: /s/ Xxxxxxx X. Xxxxxxxxxx, Xx.
--------------------------------
Name: Xxxxxxx X. Xxxxxxxxxx, Xx.
Title: Authorized Signatory
BEAR XXXXXXX CORPORATE
LENDING INC.
By: /s/ Xxxxxx Buizacchelli
--------------------------------
Name: Xxxxxx Buizacchelli
Title: Vice President
CREDIT SUISSE FIRST BOSTON,
acting through its Cayman Islands branch
By: /s/ Xxxxxx Xxxx
-------------------------------
Name: Xxxxxx Xxxx
Title: Vice President
By: /s/ Xxxxx Xxxx
-------------------------------
Name: Xxxxx Xxxx
Title: Associate
XXXXXXX STREET CREDIT CORPORATION
By: /s/ Xxxxxxxx X. Xxxx
-------------------------------
Name: Xxxxxxxx X. Xxxx
Title: Chief Financial Officer
XXXXXX BROTHERS BANK, FSB
By: /s/ Xxxx X. Xxxxxx
-------------------------------
Name: Xxxx X. Xxxxxx
Title: Vice President
Xxxxxxx Xxxxx Bank USA
By: /s/ Xxxxx Xxxxx
--------------------------------
Name: Xxxxx Xxxxx
Title: Director
MIZUHO CORPORATE BANK, LTD.
By: /s/ Xxxx Xxxxxxx
-------------------------------
Name: Xxxx Xxxxxxx
Title: Senior Vice President
XXXXXX XXXXXXX BANK
By: /s/ Xxxxxx X. Xxxxxx
-------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President
SOCIETE GENERALE
By: /s/ Xxxxxx Xxxxxx
-------------------------------
Name: Xxxxxx Xxxxxx
Title: Director
Lloyds TSB Bank, plc
By: /s/ Xxxxxxx Xxxxxxxxxx
-------------------------------
Name: Xxxxxxx Xxxxxxxxxx
Title: Executive Officer
By: /s/ Xxxxxxx Xxxxxx
-------------------------------
Name: Xxxxxxx Xxxxxx
Title: Director Corporate Banking,
USA
Mellon Bank, N.A.
By: /s/ Xxxxxx X. Xxxxxxxxxx, Xx.
-------------------------------
Name: Xxxxxx X. Xxxxxxxxxx, Xx.
Title: Assistant Vice President
UFJ BANK LIMITED
By: /s/ Xxxxxxx X. Small
-------------------------------
Name: Xxxxxxx X. Small
Title: Senior Vice President
& Area Manager
U.S. Bank National Association
By: /s/ Xxxxx Xxxxxx
-------------------------------
Name: Xxxxx Xxxxxx
Title: Banking Officer
The Bank of New York
By: /s/ Xxxxxxx X. Xxxxxxx
-------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
SCHEDULE 2.01
ADDRESS OF NOTICES; COMMITMENTS
Lender Name and Address Commitment
JPMorgan Chase Bank, N.A. $385,000,000.00
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xxxx Xxxxxxxxxx
Telephone: 000-000-0000
Facsimile: 000-000-0000
Citibank, N.A. $265,000,000.00
000 Xxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxx Xxxx Xxxxxxxx
Telephone: 000-000-0000
Facsimile: 000-000-0000
Deutsche Bank AG New York Branch $265,000,000.00
00 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxxx Xxxxxxxx
Telephone: 000-000-0000
Facsimile: 000-000-0000
ABN AMRO Bank N.V. $265,000,000.00
000 Xxxx Xxxxxx, 0xx xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxx Xxxxx
Telephone: 000-000-0000
Facsimile: 000-000-0000
BNP Paribas $265,000,000.00
000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxx Xxxxxx
Telephone: 000-000-0000
Facsimile: 000-000-0000
Bank of America, N.A. $175,000,000.00
000 Xxxxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxx X. Xxxx
Telephone: 000-000-0000
Facsimile: 212-503-7173
Bank of Tokyo-Mitsubishi Ltd., NY Branch $175,000,000.00
0000 Xxxxxx xx xxx Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxxx Xxxxxx
Telephone: 000-000-0000
Facsimile: 000-000-0000
Barclays Bank PLC $175,000,000.00
000 Xxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
Attn: Xxxxxxxx Xxxxxxxx
Telephone: 000-000-0000
Facsimile: 415-765-4760
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxx Xxxxxx
Telephone: 000-000-0000
Facsimile: 000-000-0000
HSBC Bank USA $175,000,000.00
000 Xxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxxxxxxx X. Xxxxxxx
Telephone: 000-000-0000
Facsimile: 000-000-0000
The Royal Bank of Scotland plc $175,000,000.00
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxx Xxxxx
Telephone: 000-000-0000
Facsimile: 000-000-0000
Sumitomo Mitsui Banking Corporation $175,000,000.00
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxx Xxxxxxxxx
Telephone: 000-000-0000
Facsimile: 212-224-4384
Wachovia Bank, N.A. $175,000,000.00
000 Xxxxx Xxxxxxx Xxxxxx, XX0
NC-0760, DC-05
Xxxxxxxxx, XX 00000
Attn: Xxxxx Xxxxxxxx
Telephone: 000-000-0000
Facsimile: 704-383-1625
Calyon New York Branch $135,000,000.00
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxx XxXxxxxxx/Xxxxxxx Xxxxx
Telephone: 000-000-0000/000-000-0000
Facsimile: 000-000-0000
Dresdner Bank AG, New York and $135,000,000.00
Grand Cayman Branches
00 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxx Xxxxxxxx
Telephone: 000-000-0000
Facsimile: 000-000-0000
WestLB AG, New York Branch $135,000,000.00
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxx Xxxxxxxx
Telephone: 000-000-0000
Facsimile: 000-000-0000
The Bank of Nova Scotia $75,000,000.00
Xxx Xxxxxxx Xxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxx XxXxx
Telephone: 000-000-0000
Facsimile: 212-225-5355
Bear Xxxxxxx Corporate Lending Inc. $75,000,000.00
000 Xxxxxxx Xxx., 0xx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxx Xxxxxx
Telephone: 000-000-0000
Facsimile: 000-000-0000
Credit Suisse First Boston, acting through its Cayman $75,000,000.00
Islands Branch
Eleven Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Att: Xxxxxxx Xxxxxx
Telephone: 000-000-0000
Facsimile: 000-000-0000
Xxxxxx Commercial Paper Inc. $75,000,000.00
c/o Xxxxxxx Xxxxxxx & Xxxxxxxx
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxx Xxxxx
Telephone: 000-000-0000
Facsimile: 000-000-0000
Xxxxxxx Xxxx Bank USA $75,000,000.00
00 Xxxx Xxxxx Xxxxxx, Xxxxx 000
Xxxx Xxxx Xxxx, XX 00000
Attn: Xxxxx Xxxxx
Telephone: 000-000-0000
Facsimile: 000-000-0000
Mizuho Corporate Bank, LTD $75,000,000.00
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxx Xxxxxxx
Telephone: 000-000-0000
Facsimile: 000-000-0000
Xxxxxx Xxxxxxx Bank $75,000,000.00
0000 Xxxxxx xx xxx Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxx XxXxxxxx
Telephone: 000-000-0000
Facsimile: 000-000-0000
Societe Generale $75,000,000.00
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxxx Xxxxxxxx
Telephone: 000-000-0000
Facsimile: 000-000-0000
Xxxxxxx Street Commitment Corporation $75,000,000.00
00 Xxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxx Xxxxxxxxxx
Telephone: 000-000-0000
Facsimile: 000-000-0000
Bank of New York $50,000,000.00
Xxx Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxxxx X. Xxxxxx
Telephone: 000-000-0000
Facsimile: 000-000-0000
Lloyds TSB Bank, plc $50,000,000.00
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxxx Xxxxxx
Telephone: 000-000-0000
Facsimile: 000-000-0000
Mellon Bank, N.A. $50,000,000.00
1 Mellon Bank Center
500 Grant Street, Rm. 4450
Xxxxxxxxxx, XX 00000
Attn: Xxxxxx Xxxxxxxxxx, Xx.
Telephone: 000-000-0000
Facsimile: 000-000-0000
UFJ Bank Limited $50,000,000.00
00 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxxx X. Small
Telephone: 000-000-0000
Facsimile: 000-000-0000
U.S. Bank National Association $50,000,000.00
00000 X.X. 0xx Xxxxxx, Xxxxx 0000
Xxxxxxxx, XX 00000
Attn: Xxx Xxxxx
Facsimile: 000-000-0000
TOTAL $4,000,000,000.00
SCHEDULE 2.03(A)
Loan Type: A borrowing notice (pursuant and subject to Prepayment notice (pursuant to
Section 2.03 or Section 2.04, as applicable) or Section 2.10) must be given not
an interest election (pursuant to Section 2.07) later than:
must be given not later than:
REVOLVING LOANS
Any 11:00 am New York City time three (3) 12:00 pm New York City time
Eurodollar Borrowing Business Days before the date of the three (3) Business Days before
proposed Borrowing. the date of prepayment.
ABR Borrowing 10:00 am New York City time on 12:00 pm New York City time one (1)
the day of the proposed Borrowing. Business Day before the date of
prepayment.
SWINGLINE LOANS
ABR Borrowing 2:00 pm New York City time on the day of
the proposed Borrowing.
SCHEDULE 2.03(B)
AUTHORIZED ACCOUNT NUMBERS & LOCATIONS
Bank: JPMorgan Chase Bank, N.A.
Address: Xxx Xxxxx Xxxxxxxxx Xxxxx
Xxx Xxxx, XX 00000
ABA: 021 000 021
Account Name: Time Warner Cable
Account Number: 304-180335
Bank: JPMorgan Chase Bank, N.A.
Address: Xxx Xxxxx Xxxxxxxxx Xxxxx
Xxx Xxxx, XX 00000
ABA: 021 000 021
Account Name: Time Warner Entertainment Company, L.P.
Account Number: 323-042848
SCHEDULE 6.08
UNRESTRICTED SUBSIDIARIES
Bright House Networks, LLC
SCHEDULE 8
LIST OF PROPER PERSONS
Name Title
Xxxxxx Xxxxx Exec. Vice President and CFO
EXHIBIT A
FORM OF
ASSIGNMENT AND ACCEPTANCE
Reference is made to the Amended and Restated Five-Year Credit Agreement
(as further amended, supplemented or otherwise modified from time to time, the
"Credit Agreement") dated as of December 9, 2003, and amended and restated as of
November 23, 2004, among Time Warner Cable Inc., Time Warner Entertainment
Company, L.P., the Lenders party thereto, Citibank, N.A. and Deutsche Bank AG,
New York Branch, as co-syndication agents, ABN AMRO Bank N.V. and BNP Paribas,
as co-documentation agents, and JPMorgan Chase Bank, N.A., as administrative
agent (in such capacity, the "Administrative Agent"). Unless otherwise defined
herein, terms defined in the Credit Agreement and used herein shall have the
meanings given to them in the Credit Agreement.
The Assignor identified on Schedule l hereto (the "Assignor") and the
Assignee identified on Schedule l hereto (the "Assignee") agree as follows:
1. The Assignor hereby irrevocably sells and assigns to the Assignee
without recourse to the Assignor, and the Assignee hereby irrevocably purchases
and assumes from the Assignor without recourse to the Assignor, as of the
Effective Date (as defined below), the interest described in Schedule 1 hereto
(the "Assigned Interest") in and to the Assignor's rights and obligations under
the Credit Agreement with respect to the amount set forth on Schedule 1 hereto
for the Commitments and Revolving Credit Exposure of the Assignor on the
Effective Date of this Assignment and Acceptance.
2. The Assignor (a) makes no representation or warranty and assumes no
responsibility with respect to any statements, warranties or representations
made in or in connection with the Credit Agreement or with respect to the
execution, legality, validity, enforceability, genuineness, sufficiency or value
of the Credit Agreement, any other Credit Document or any other instrument or
document furnished pursuant thereto, other than that the Assignor has not
created any adverse claim upon the interest being assigned by it hereunder and
that such interest is free and clear of any such adverse claim and (b) makes no
representation or warranty and assumes no responsibility with respect to the
financial condition of any of the Borrowers, any of their Affiliates or any
other obligor or the performance or observance by any of the Borrowers, any of
their Affiliates or any other obligor of any of their respective obligations
under the Credit Agreement or any other Credit Documents or any other instrument
or document furnished pursuant hereto or thereto.
3. The Assignee (a) represents and warrants that it is legally authorized
to enter into this Assignment and Acceptance; (b) confirms that it has received
a copy of the Credit Agreement, together with copies of the financial statements
delivered pursuant to Section 3.04 thereof and such other documents and
information as it has deemed appropriate to make its own credit analysis and
decision to enter into this Assignment and Acceptance; (c) agrees that it will,
independently and without reliance upon the Assignor, the Administrative Agent
or any Lender and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in taking or
not taking action under the Credit Agreement and other Credit Documents or any
other instrument or document furnished pursuant hereto or thereto; (d) appoints
and authorizes the Administrative Agent to take such action as agent on its
behalf and to exercise such powers and discretion under the Credit Agreement and
other Credit Documents or any other instrument or document furnished pursuant
hereto or
2
thereto as are delegated to the Administrative Agent by the terms thereof,
together with such powers as are incidental thereto; and (e) agrees that it will
be bound by the provisions of the Credit Agreement and will perform in
accordance with its terms all the obligations which by the terms of the Credit
Agreement are required to be performed by it as a Lender.
4. The effective date of this Assignment and Acceptance shall be the
Effective Date of Assignment described in Schedule 1 hereto (the "Effective
Date"). Following the execution of this Assignment and Acceptance, it will be
delivered to the Administrative Agent for acceptance by it and recording by the
Administrative Agent pursuant to the Credit Agreement, effective as of the
Effective Date (which shall not, unless otherwise agreed to by the
Administrative Agent, be earlier than five Business Days after the date of such
acceptance and recording by the Administrative Agent).
5. Upon such acceptance and recording, from and after the Effective Date,
the Administrative Agent shall make all payments in respect of the Assigned
Interest (including payments of principal, interest, fees and other amounts) to
the Assignor for amounts which have accrued to the Effective Date and to the
Assignee for amounts which have accrued subsequent to the Effective Date.
6. From and after the Effective Date, (a) the Assignee shall be a party to
the Credit Agreement and, to the extent provided in this Assignment and
Acceptance, have the rights and obligations of a Lender thereunder and under the
other Credit Documents and shall be bound by the provisions thereof and (b) the
Assignor shall, to the extent provided in this Assignment and Acceptance,
relinquish its rights and be released from its obligations under the Credit
Agreement.
7. This Assignment and Acceptance shall be governed by and construed in
accordance with the laws of the State of New York.
IN WITNESS WHEREOF, the parties hereto have caused this Assignment and
Acceptance to be executed as of the date first above written by their
respective duly authorized officers on Schedule 1 hereto.
Schedule 1
to Assignment and Acceptance with respect to the
Amended and Restated Five-Year Credit Agreement,
dated as of December 9, 2003, and amended and restated as of November 23, 2004,
among Time Warner Cable Inc., Time Warner Entertainment Company, L.P., the
Lenders party thereto, Citibank, N.A. and Deutsche Bank AG, New
York Branch, as co-syndication agents, ABN AMRO Bank N.V. and BNP Paribas, as
co-documentation agents, and JPMorgan Chase Bank, N.A., as administrative agent
(in such capacity, the "Administrative Agent")
Name of Assignor: _______________________
Name of Assignee: _______________________
Effective Date of Assignment: _________________
Amount of Commitments and
Revolving Credit Exposure Assigned
$----------
[Name of Assignee] [Name of Assignor]
By:______________________________ By:______________________________
Title: Title:
Accepted for Recordation in the Register: Required Consents (if any):
JPMORGAN CHASE BANK, N.A., as [TIME WARNER CABLE INC.]
Administrative Agent
By:______________________________ [By:______________________________
Title: Title:]
[______________________________, as
Swingline Lender]
[By:______________________________
Title:]
[______________________________, as
Issuing Bank]
[By:______________________________
Title:]
EXHIBIT B
FORM OF PRIMARY GUARANTEE
GUARANTEE, dated as of November 23, 2004, made by TIME WARNER CABLE INC., a
Delaware corporation (together with any replacement or successor entity pursuant
to Section 6.04, "TWC") and TIME WARNER ENTERTAINMENT COMPANY, L.P., a Delaware
limited partnership ("TWE") (each, a "Guarantor", and collectively, the
"Guarantors"), in favor of JPMORGAN CHASE BANK, N.A., as administrative agent
(in such capacity, the "Administrative Agent") for the lenders (the "Lenders")
parties to the Amended and Restated Five-Year Credit Agreement (as further
amended, supplemented or otherwise modified from time to time, the "Credit
Agreement") dated as of December 9, 2003, and amended and restated as of
November 23, 2004, among TWC, TWE, the Lenders, CITIBANK, N.A. and DEUTSCHE BANK
AG, NEW YORK BRANCH, 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 a Borrower under the Credit Agreement and an
affiliate of the other Borrower 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 such other Borrower under the Credit Agreement.
NOW, THEREFORE, in consideration of the premises and to induce the
Administrative Agent and the Lenders to enter into the Credit Agreement and to
induce the Lenders to make their respective loans 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, "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 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 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 Borrowers pursuant to the terms of the Credit Agreement or
any other Credit Document).
(c) As used herein, "Reimbursement Obligation" means the obligation of a
Borrower to reimburse the Issuing Bank pursuant to Section 2.05(e) of the Credit
Agreement for amounts drawn under Letters of Credit.
(d) 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.
(e) The meanings given to terms defined herein shall be equally applicable
to both the singular and plural forms of such terms.
2. Guarantees. (a) TWC hereby unconditionally and irrevocably guarantees to
the Administrative Agent, for the ratable benefit of the Lenders and their
respective successors, indorsees, transferees and assigns, the prompt and
complete payment and performance by TWE as and when due (whether at the stated
maturity, by acceleration or otherwise) of the Obligations of TWE.
(b) TWE hereby unconditionally and irrevocably guarantees to the
Administrative Agent, for the ratable benefit of the Lenders and their
respective successors, indorsees, transferees and assigns, the prompt and
complete payment and performance by TWC as and when due (whether at the stated
maturity, by acceleration or otherwise) of the Obligations of TWC.
(c) 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 Borrowers may be
free from any Obligations.
(d) 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.
(e) Anything herein or in any other Credit Document to the contrary
notwithstanding, the maximum liability of each Guarantor hereunder and under the
other Credit
2
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.
(f) No payment or payments made by either of the Borrowers, either 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 Borrowers, either of
the Guarantors, any other guarantor or any other Person by virtue of any action
or proceeding or any setoff or appropriation or payment of the Obligations shall
be deemed to modify, reduce, release or otherwise affect the liability of any
Guarantor hereunder who shall, notwithstanding any such payment or payments
(other than payments made by such Guarantor in respect of the Obligations or
payments received or collected from such Guarantor in respect of the
Obligations), remain liable for the Obligations, up to the maximum liability of
such Guarantor hereunder until the Obligations are paid in full, 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 Setoff. (a) TWC hereby authorizes each Lender at any time and
from time to time when any amounts owed by TWE under the Credit Agreement are
due and payable and have not been paid (taking into account any applicable grace
periods), to the fullest extent permitted by law, to set off and apply any and
all deposits (general or special, time or demand, provisional or final), at any
time held by such Lender or any Affiliate of such Lender that is primarily
engaged in commercial banking activities and other indebtedness at any time
owing by such Lender to or for the credit or the account of TWC (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 TWE 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 TWC 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) TWE hereby authorizes each Lender at any time and from time to time
when any amounts owed by TWC under the Credit Agreement are due and payable and
have not been paid (taking into account any applicable grace periods), to the
fullest extent permitted by law, to set off and apply any and all deposits
(general or special, time or demand, provisional or final), at any time held by
such Lender or any Affiliate of such Lender that is primarily engaged in
commercial banking activities and other indebtedness at any time owing by such
Lender to or for the credit or the account of TWE (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 TWC 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 TWE 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.
3
4. No Subrogation. Notwithstanding any payment or payments made by any
Guarantor hereunder, or any setoff or application of funds of any Guarantor by
any Lender, no Guarantor shall be entitled to be subrogated to any of the rights
of the Administrative Agent or any Lender against the other Borrower or against
any collateral security or guarantee or right of offset held by the
Administrative Agent or any Lender for the payment of the Obligations, nor shall
any Guarantor seek or be entitled to seek any contribution or reimbursement from
the other Borrower 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.
5. Amendments, etc. with Respect to the Obligations; Waiver of Rights. Each
Guarantor shall remain obligated hereunder notwithstanding that, without any
reservation of rights against any Guarantor, and without notice to or further
assent by any Guarantor, (a) any demand for payment of any of the Obligations
made by the Administrative Agent or any Lender may be rescinded by the
Administrative Agent or such Lender, and any of the Obligations continued, (b)
the Obligations, or the liability of any other Person upon or for any part
thereof, or any collateral security or guarantee therefor or right of offset
with respect thereto, may, from time to time, in whole or in part, be renewed,
extended, amended, modified, accelerated, compromised, waived, surrendered or
released by the Administrative Agent or any Lender, (c) the Credit Agreement and
any other Credit Document may be amended, modified, supplemented or terminated,
in whole or in part, and (d) any collateral security, guarantee or right of
offset at any time held by the Administrative Agent or any Lender for the
payment of the Obligations may be sold, exchanged, waived, surrendered or
released. Neither the Administrative Agent nor any Lender shall have any
obligation to protect, secure, perfect or insure any Lien at any time held by it
as security for the Obligations or for this Guarantee or any property subject
thereto.
6. Guarantee Absolute and Unconditional. Each Guarantor waives any and all
notice of the creation, renewal, extension or accrual of any of the Obligations
and notice of or proof of reliance by the Administrative Agent or any Lender
upon this Guarantee or acceptance of this Guarantee; the Obligations, and any of
them, shall conclusively be deemed to have been created, contracted or incurred,
or renewed, extended, amended or waived, in reliance upon this Guarantee; and
all dealings between either one or both of the Borrowers or 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 Borrowers or Guarantors with respect to the Obligations. This
Guarantee shall be construed as a continuing, absolute and unconditional
guarantee of payment without regard to (a) the validity, regularity or
enforceability of the Credit
4
Agreement or any other Credit Document, any of the Obligations or any other
collateral security therefor or guarantee or right of offset with respect
thereto at any time or from time to time held by the Administrative Agent or any
Lender, (b) any defense, setoff or counterclaim (other than a defense of payment
or performance) which may at any time be available to or be asserted by either
one or both of the 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 Borrowers or Guarantors)
which constitutes, or might be construed to constitute, an equitable or legal
discharge of either one or both of the Borrowers from the 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 the other Borrower or any
other Person or against any collateral security or guarantee for the Obligations
or any right of offset with respect thereto, and any failure by the
Administrative Agent or any Lender to make any such demand, to pursue such other
rights or remedies or to collect any payments from the other Borrower or any
such other Person or to realize upon any such collateral security or guarantee
or to exercise any such right of offset, or any release of the other Borrower or
any such other Person or of any such collateral security, guarantee or right of
offset, shall not relieve any Guarantor of any liability hereunder, and shall
not impair or affect the rights and remedies, whether express, implied or
available as a matter of law, of the Administrative Agent or any Lender against
any Guarantor. For the purposes hereof "demand" shall include the commencement
and continuance of any legal proceedings.
7. Reinstatement. This Guarantee shall continue to be effective, or be
reinstated, as the case may be, if at any time payment, or any part thereof, of
any of the Obligations is rescinded or must otherwise be restored or returned by
the Administrative Agent or any Lender upon the insolvency, bankruptcy,
dissolution, liquidation or reorganization of either one or both of the
Borrowers 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
Borrowers or any substantial part of either Borrower's property, or otherwise,
all as though such payments had not been made.
8. Payments. Each Guarantor hereby agrees that payments hereunder will be
paid to the Administrative Agent without setoff or counterclaim at the office of
the Administrative Agent located at Xxx Xxxxx Xxxxxxxxx Xxxxx, Xxx Xxxx, Xxx
Xxxx 00000 or to such other office as designated by the Administrative Agent.
9. Representations and Warranties. To induce the Administrative Agent and
the Lenders to enter into the Credit Agreement and to induce the Lenders to make
their respective extensions of credit to the 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
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that is qualified by a reference to TWC 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.
10. Authority of Administrative Agent. Each Guarantor acknowledges that the
rights and responsibilities of the Administrative Agent under this Guarantee
with respect to any action taken by the Administrative Agent or the exercise or
non-exercise by the Administrative Agent of any option, right, request, judgment
or other right or remedy provided for herein or resulting or arising out of this
Guarantee shall, as between the Administrative Agent and the Lenders, be
governed by the Credit Agreement and by such other agreements with respect
thereto as may exist from time to time among them, but, as between the
Administrative Agent and any or all of the Guarantors, the Administrative Agent
shall be conclusively presumed to be acting as agent for the Lenders with full
and valid authority so to act or refrain from acting, and no Guarantor shall be
under any obligation, or entitlement, to make any inquiry respecting such
authority.
11. Notices. All notices, requests and demands to or upon the
Administrative Agent, any Lender or any Guarantor shall be effected in the
manner provided in Section 9.01 of the Credit Agreement; any such notice,
request or demand to or upon any Guarantor shall be addressed to such Guarantor
at its notice address set forth on Schedule 1 hereto.
12. Severability. Any provision of this Guarantee which is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
13. Integration. This Guarantee and the other Credit Documents represent
the agreement of each Guarantor with respect to the subject matter hereof and
there are no promises or representations by the Guarantor, the Administrative
Agent or any Lender relative to the subject matter hereof not reflected herein
or in the other Credit Documents.
14. Amendments in Writing. None of the terms or provisions of this
Guarantee may be waived, amended, supplemented or otherwise modified except by a
written instrument executed by the applicable Guarantor and the Administrative
Agent, provided that any right, power or privilege of the Administrative Agent
or the Lenders arising under this Guarantee may be waived by the Administrative
Agent and the Lenders in a letter or agreement executed by the Administrative
Agent; provided, further, that no such amendment or waiver shall release either
Guarantor from its obligations hereunder without the written consent of each
Lender.
15. No Waiver; Cumulative Remedies. Neither the Administrative Agent nor
any Lender shall by any act (except by a written instrument pursuant to
paragraph 14 hereof),
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delay, indulgence, omission or otherwise be deemed to have waived any right or
remedy hereunder or to have acquiesced in any Default or Event of Default or in
any breach of any of the terms and conditions hereof. No failure to exercise,
nor any delay in exercising, on the part of the Administrative Agent or any
Lender, any right, power or privilege hereunder shall operate as a waiver
thereof. No single or partial exercise of any right, power or privilege
hereunder shall preclude any other or further exercise thereof or the exercise
of any other right, power or privilege. A waiver by the Administrative Agent or
any Lender of any right or remedy hereunder on any one occasion shall not be
construed as a bar to any right or remedy which the Administrative Agent or such
Lender would otherwise have on any future occasion. The rights and remedies
herein provided are cumulative, may be exercised singly or concurrently and are
not exclusive of any other rights or remedies provided by law.
16. Section Headings. The section headings used in this Guarantee are for
convenience of reference only and are not to affect the construction hereof or
be taken into consideration in the interpretation hereof.
17. Successors and Assigns. This Guarantee shall be binding upon the
successors and assigns of each Guarantor and shall inure to the benefit of the
Administrative Agent and the Lenders and their successors and assigns; provided
that no Guarantor may assign, transfer or delegate any of its rights or
obligations under this Guarantee without the prior written consent of the
Administrative Agent.
18. Enforcement Expenses. Each Guarantor agrees, jointly and severally, to
pay or reimburse each Lender and the Administrative Agent for all its costs and
expenses incurred in collecting against such Guarantor under this Guarantee or
otherwise enforcing or protecting any rights under this Guarantee and the other
Credit Documents to which such Guarantor is a party, including, without
limitation, the fees and disbursements of counsel to each Lender and of counsel
to the Administrative Agent.
19. Counterparts. This Guarantee may be executed by one or more of the
Guarantors on any number of separate counterparts (including by facsimile
transmission), and all of said counterparts taken together shall be deemed to
constitute one and the same instrument.
20. Acknowledgements.
Each Guarantor hereby acknowledges that:
(a) it has been advised by counsel in the negotiation, execution and
delivery of this Guarantee;
(b) neither the Administrative Agent nor any Lender has any fiduciary
relationship with or fiduciary duty to such Guarantor arising out of or in
connection with this Guarantee or any other Credit Document, and the
relationship between any or all of the Guarantors, on the one hand, and the
Administrative Agent and Lenders, on the other hand, in connection herewith or
therewith is solely that of debtor and creditor; and
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(c) no joint venture is created hereby or by the other Credit Documents or
otherwise exists by virtue of the transactions contemplated hereby among the
Lenders or among the Guarantors and the Lenders.
21. GOVERNING LAW. This Guarantee shall be governed by, and construed and
interpreted in accordance with, the law of the State of New York.
22. Jurisdiction; Consent to Service of Process. (a) Each Guarantor hereby
irrevocably and unconditionally submits, for itself and its property, to the
exclusive jurisdiction of the Supreme Court of the State of New York sitting in
New York County and of the United States District Court of the Southern District
of New York, and any appellate court from any thereof, in any action or
proceeding arising out of or relating to this Guarantee, or for recognition or
enforcement of any judgment, and each Guarantor hereby irrevocably and
unconditionally agrees that all claims in respect of any such action or
proceeding shall be heard and determined in such New York State court or, to the
extent permitted by law, in such Federal court. Each Guarantor agrees that a
final judgment in any such action or proceeding shall be conclusive and may be
enforced in other jurisdictions by suit on the judgment or in any other manner
provided by law.
(b) Each Guarantor hereby irrevocably and unconditionally waives, to the
fullest extent it may legally and effectively do so, any objection which it may
now or hereafter have to the laying of venue of any suit, action or proceeding
arising out of or relating to this Guarantee in any court referred to in
paragraph (a) of this Section. Each of the parties hereto hereby irrevocably
waives, to the fullest extent permitted by law, the defense of an inconvenient
forum to the maintenance of such action or proceeding in any such court.
(c) Each Guarantor irrevocably consents to service of process in the manner
provided for notices in paragraph 11 of this Guarantee. Nothing in this
Guarantee will affect the right of any party to this Guarantee to serve process
in any other manner permitted by law.
23. WAIVER OF JURY TRIAL. EACH GUARANTOR HEREBY IRREVOCABLY AND
UNCONDITIONALLY WAIVES TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING
TO THIS GUARANTEE OR ANY OTHER CREDIT DOCUMENT AND FOR ANY COUNTERCLAIM THEREIN.
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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.
TIME WARNER CABLE INC.
By: /s/ Xxxxxx X. Xxxxx
------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Ex. VP, Treasurer and CFO
TIME WARNER ENTERTAINMENT COMPANY, L.P.
By: /s/ Xxxxxx X. Xxxxx
------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Ex. VP, Treasurer and CFO
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SCHEDULE 1
Address for Notices
TIME WARNER CABLE INC.
One Time Xxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Chief Financial Officer
Facsimile No. 000-000-0000
Attention: General Counsel
Facsimile No. 000-000-0000
Attention: Treasurer
Facsimile No. 000-000-0000
TIME WARNER ENTERTAINMENT COMPANY, L.P.
One Time Xxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Chief Financial Officer
Facsimile No. 000-000-0000
Attention: General Counsel
Facsimile No. 000-000-0000
Attention: Treasurer
Facsimile No. 000-000-0000
EXHIBIT C
FORM OF
SUPPLEMENTAL GUARANTEE
SUPPLEMENTAL GUARANTEE ("Guarantee"), dated as of November 23, 2004 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 Amended and Restated
Five-Year Credit Agreement (as the same may be further amended, amended and
restated, supplemented or otherwise modified from time to time, the "Credit
Agreement") dated as of December 9, 2003, and amended and restated as of
November 23, 2004, among Time Warner Cable Inc., a Delaware corporation ("TWC"),
Time Warner Entertainment Company, L.P., a Delaware limited partnership ("TWE"),
JPMorgan Chase Bank, N.A., 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 :
1. Pursuant to the Credit Agreement, the Lenders have severally agreed to
make Loans to TWE upon the terms and conditions set forth therein.
2. The Obligations of TWE are being incurred for and will inure to the
benefit of such Guarantor.
3. Each Guarantor desires to guarantee its Guaranteed Percentage of such
Obligations.
4. 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.
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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
By: /s/ Xxxxxxx X. Xxxxxx
-----------------------------
Name: Xxxxxxx X. Xxxxxx
Title: VP and Treasurer
WARNER COMMUNICATIONS INC.
By: /s/ Xxxxxxx X. Xxxxxx
-----------------------------
Name: Xxxxxxx X. Xxxxxx
Title: VP and Treasurer
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.
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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 9.02(b) and Section 9.14
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 TWC, 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
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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.
13. Release. This Guarantee may only be released in accordance with Section
9.02(b) of the Credit Agreement; provided, however, that if any of the events
specified in Section 9.14 of the Credit Agreement occur with respect to a
Guarantor then the Guarantee shall be automatically released with respect to
such Guarantor without any further action.
4
