Form of Commercial Paper Dealer Agreement – Time Warner
FORM OFCOMMERCIAL PAPER DEALER AGREEMENT
4(2) PROGRAMamongTime Warner Inc.,
as IssuerHistoric TW Inc.,
as Note GuarantorHome Box Office, Inc. and Turner Broadcasting
System, Inc.,
as Supplemental
Guarantorsand[],
as Dealer
| Concerning Notes to be issued pursuant to an Issuing and Paying Agency Agreement dated as of February 16, 2011, among the Issuer, the Note Guarantor and JPMorgan Chase Bank, National Association, as Issuing and Paying Agent |
Dated as ofFebruary 16, 2011
COMMERCIAL PAPER DEALER AGREEMENT
4(2) Program
This agreement (“Agreement”) dated February 16, 2011, sets forth the
understandings among the Issuer, the Guarantors and the Dealer, each named on
the cover page hereof, in connection with the issuance and sale by the Issuer of
its short-term promissory notes (the “Notes”) through the Dealer. Historic
TW Inc. (the “Note Guarantor”) has agreed unconditionally and irrevocably to
guarantee payment in full of the principal and interest (if any) on all such
Notes of the Issuer, pursuant to a guarantee, dated as of February 16, 2011, in
the form of Exhibit C hereto (the “Note Guarantee”), and Home Box Office, Inc.
and Turner Broadcasting System, Inc. (the “Supplemental Guarantors”) have agreed
unconditionally and irrevocably to guarantee the Note Guarantor’s guarantee of
the Notes pursuant to guarantees dated February 16, 2011 in the form of
Exhibit D hereto (the “Supplemental Guarantees”). The Note Guarantor and the
Supplemental Guarantors are collectively referred to herein as the “Guarantors,”
and the Note Guarantee and the Supplemental Guarantees are collectively referred
to herein as the “Guarantees”. Certain terms used in this Agreement are
defined in Section 6 hereof. The Addendum to this Agreement, and any
Annexes or Exhibits described in this Agreement or such Addendum, are hereby
incorporated into this Agreement and made fully a part hereof. Section 1.
Offers, Sales and Resales of Notes 1.1 While (i) the Issuer has and
shall have no obligation to sell the Notes to the Dealer or to permit the Dealer
to arrange any sale of the Notes for the account of the Issuer, and (ii) the
Dealer has and shall have no obligation to purchase the Notes from the Issuer or
to arrange any sale of the Notes for the account of the Issuer, the parties
hereto agree that in any case where the Dealer purchases Notes from the Issuer,
or arranges for the sale of Notes by the Issuer, such Notes will be purchased or
sold by the Dealer in reliance on the representations, warranties, covenants and
agreements of the Issuer contained herein or made pursuant hereto and on the
terms and conditions and in the manner provided herein. 1.2 So long as this
Agreement shall remain in effect, and in addition to the limitations contained
in Section 1.7 hereof, the Issuer shall not, without the consent of the Dealer,
offer, solicit or accept offers to purchase, or sell, any Notes except (a) in
transactions with one or more dealers which may from time to time after the date
hereof become dealers with respect to the Notes by executing with the Issuer one
or more agreements which contain provisions substantially identical to Section 1
of this Agreement, of which the Issuer hereby undertakes to provide the Dealer
prompt notice or (b) in transactions with the other dealers listed on the
Addendum hereto, which are executing agreements with the Issuer which contain
provisions substantially identical to Section 1 of this Agreement
contemporaneously herewith. In no event shall the Issuer offer, solicit or
accept offers to purchase, or sell, any Notes directly on its own behalf in
transactions with persons other than broker-dealers as specifically permitted in
this Section 1.2. 1.3 The Notes shall be in a minimum denomination or
minimum amount, whichever is applicable, of $250,000 or integral multiples of
$1,000 in excess thereof, will bear such interest rates, if interest bearing, or
will be sold at such discount from their face amounts, as shall be agreed upon
by the Dealer and the Issuer at the time of each proposed sale, shall have a
maturity not exceeding 365 days from the date of issuance (exclusive of days of
grace) and shall not contain any provision for extension, renewal or automatic
“rollover.”
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1.4 The authentication, delivery and payment of the Notes shall be
effected in accordance with the Issuing and Paying Agency Agreement and the
Notes shall be either individual bearer physical certificates or represented by
book-entry Notes registered in the name of DTC or its nominee in the form or
forms annexed to the Issuing and Paying Agency Agreement. 1.5 If the Issuer
and the Dealer shall agree on the terms of the purchase of any Note by the
Dealer or the sale of any Note arranged by the Dealer (including, but not
limited to, agreement with respect to the date of issue, purchase price,
principal amount, maturity and interest rate (in the case of interest-bearing
Notes) or discount thereof (in the case of Notes issued on a discount basis),
and appropriate compensation for the Dealer’s services hereunder) pursuant to
this Agreement, the Issuer shall cause such Note to be issued and delivered in
accordance with the terms of the Issuing and Paying Agency Agreement and payment
for such Note shall be made by the purchaser thereof, either directly or through
the Dealer, to the Issuing and Paying Agent, for the account of the Issuer.
Except as otherwise agreed, in the event that the Dealer is acting as an agent
and a purchaser shall either fail to accept delivery of or make payment for a
Note on the date fixed for settlement, the Dealer shall promptly notify the
Issuer, and if the Dealer has theretofore paid the Issuer for the Note, the
Issuer will promptly return such funds to the Dealer against its return of the
Note to the Issuer, in the case of a certificated Note, and upon notice of such
failure in the case of a book-entry Note. 1.6 All offers and sales of Notes
by the Issuer shall be effected pursuant to the exemption from the registration
requirements of the Securities Act provided by Section 4(2) thereof, which
exempts transactions by an issuer not involving any public offering. The Dealer
and the Issuer hereby establish and agree to observe the following procedures in
connection with offers, sales and subsequent resales or other transfers of the
Notes: (a) Offers and sales of Notes shall be made only to investors
reasonably believed by the Dealer to be: (i) Institutional Accredited Investors
or Sophisticated Individual Accredited Investors, (ii) non-bank fiduciaries or
agents that will be purchasing Notes for one or more accounts, each of which is
reasonably believed by the Dealer to be an Institutional Accredited Investor or
Sophisticated Individual Accredited Investor and (iii) Qualified Institutional
Buyers (“QIBs”). (b) Resales and other transfers of Notes by the holders
thereof shall be made only in accordance with the restrictions in the legends
described in clause (e) below. (c) No general solicitation or general
advertising shall be used in connection with any offering of the Notes. Without
limiting the generality of the foregoing, none of the Dealer, the Issuer, or any
Guarantor shall issue any press release or place or publish any “tombstone” or
other advertisement relating to the Notes without the prior written approval of
the other party. (d) No sale of Notes to any one purchaser shall be for
less than $250,000 principal or face amount, and no Note shall be issued in a
smaller principal or face amount. If the purchaser is a non-bank fiduciary
acting on behalf of others, each person for whom such purchaser is acting must
purchase at least $250,000 principal or face amount of Notes. (e) Offers
and sales of the Notes shall be made in accordance with Rule 506 under the
Securities Act (other than the requirement set forth in Rule 503(a)), and shall
be subject to the restrictions described in the legend appearing on Exhibit A
hereto. A legend substantially to the effect of such Exhibit A shall appear as
part of the Private Placement Memorandum used in connection with offers and
sales of Notes hereunder, as well as on each Note offered and sold pursuant to
this Agreement. (f) The Dealer shall furnish or shall have furnished to
each purchaser of Notes for which it has acted as the dealer a copy of the
then-current Private Placement Memorandum unless such purchaser has previously
received a copy of the Private Placement Memorandum as then in
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effect. The Private Placement Memorandum shall expressly state that any
person to whom Notes are offered shall have an opportunity to ask questions of,
and receive information from, the Issuer, the Guarantors and the Dealer and
shall provide the names, addresses and telephone numbers of the persons from
whom information regarding the Issuer and the Guarantors may be obtained.
(g) The Issuer agrees, for the benefit of the Dealer and each of the
holders and prospective purchasers from time to time of Notes, that at any time
that the Issuer shall not be subject to Section 13 or 15(d) of the Exchange Act,
the Issuer will furnish, upon request and at its expense, to the Dealer and to
holders and prospective purchasers of Notes information as to the Issuer and the
Guarantors required by Rule 144A(d)(4)(i). (h) In the event that any Note
offered or to be offered by the Dealer would be ineligible for resale under
Rule 144A, the Issuer shall promptly notify the Dealer (by telephone, confirmed
in writing) of such fact and shall promptly prepare and deliver to the Dealer an
amendment or supplement to the Private Placement Memorandum describing the Notes
that are ineligible, the reason for such ineligibility and any other relevant
information relating thereto. (i) The Issuer and the Guarantors represent
that the Guarantors are not presently issuing commercial paper in the United
States market. In the event that one or more of the Guarantors does issue
commercial paper in the United States market in reliance upon the exemption
provided by Section 3(a)(3) of the Securities Act, the Issuer and the Guarantors
agree that (a) the proceeds from sales of Notes will be segregated from proceeds
of the sale of any such commercial paper by being placed in separate accounts,
(b) the Issuer and the Guarantors will institute appropriate corporate
procedures to ensure that offers and sales of commercial paper issued by the
Guarantors are not integrated with offerings and sales of Notes hereunder and
(c) the Issuer and the Guarantors will comply with the requirements of the
Securities Act in selling commercial paper or other short-term debt securities
other than the Notes in the United States. 1.7 The Issuer and each
Guarantor hereby represents and warrants to the Dealer, in connection with
offers, sales and resales of Notes, as follows: (a) The Issuer and the
Guarantors hereby confirm to the Dealer that within the preceding six months
neither the Issuer, nor any Guarantor, nor any person other than the Dealer or
the other dealers referred to in Section 1.2 hereof acting on behalf of the
Issuer or a Guarantor has offered or sold any Notes, or any substantially
similar security of the Issuer (including, without limitation, medium-term notes
issued by the Issuer or a Guarantor with maturities less than 365 days), to, or
solicited offers to buy any such security from, any person other than the Dealer
or the other dealers referred to in Section 1.2 hereof. The Issuer and the
Guarantors also agree that (except as permitted by Section 1.6(i) hereof), as
long as the Notes are being offered for sale by the Dealer and the other dealers
referred to in Section 1.2 hereof as contemplated hereby and until at least six
months after the offer of Notes hereunder has been terminated, none of the
Issuer, any Guarantor or any person other than the Dealer or the other dealers
referred to in Section 1.2 hereof will offer the Notes or any substantially
similar security of the Issuer or a Guarantor for sale to, or solicit offers to
buy any such security from, any person other than the Dealer or the dealers
referred to in Section 1.2 hereof (except as contemplated by Section 1.2
hereof), it being understood that such agreement is made with a view to bringing
the offer and sale of the Notes within the exemption provided by Section 4(2) of
the Securities Act and Rule 506 thereunder and shall survive any termination of
this Agreement. Each of the Issuer and the Guarantors hereby represents and
warrants that it has not taken or omitted to take, and will not take or omit to
take, any action that would cause the offering and sale of Notes hereunder to be
integrated with any other offering of securities, whether such offering is made
by the Issuer, a Guarantor or some other party or parties. (b) The Issuer
represents and agrees that the proceeds of the sale of the Notes are not
currently contemplated to be used for the purpose of buying, carrying or trading
securities within the meaning of Regulation T and the interpretations thereunder
by the Board of Governors
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of the Federal Reserve System of the United States of America. In the event
that the Issuer determines to use such proceeds for the purpose of buying,
carrying or trading securities, whether in connection with an acquisition of
another company or otherwise, the Issuer shall give the Dealer at least five
business days’ prior written notice to that effect. Thereafter, in the event
that the Dealer purchases Notes as principal and does not resell such Notes on
the day of such purchase, to the extent necessary to comply with Regulation T
and the interpretations thereunder, the Dealer will sell such Notes only to
offerees it reasonably believes to be QIBs or to QIBs it reasonably believes are
acting for other QIBs, in each case in accordance with Rule 144A. Section 2.
Representations and Warranties of the Issuer and the Guarantors The
Issuer, with respect to Sections 2.1 through 2.10 and 2.20, and each Guarantor,
for itself only, with respect to Sections 2.11 through 2.20, represents and
warrants that: 2.1 The Issuer is a corporation duly organized, validly
existing and in good standing under the laws of the jurisdiction of its
incorporation and has all the requisite power and authority to execute, deliver
and perform its obligations under the Notes, this Agreement and the Issuing and
Paying Agency Agreement. 2.2 This Agreement and the Issuing and Paying
Agency Agreement have been duly authorized, executed and delivered by the Issuer
and constitute legal, valid and binding obligations of the Issuer enforceable
against the Issuer in accordance with their terms subject to applicable
bankruptcy, insolvency and similar laws affecting creditors’ rights generally,
and subject, as to enforceability, to general principles of equity (regardless
of whether enforcement is sought in a proceeding in equity or at law) and except
as enforceability of the indemnification provisions of this Agreement may be
limited by federal securities laws. 2.3 The Notes have been duly
authorized, and when issued and delivered as provided in the Issuing and Paying
Agency Agreement, will be validly issued and delivered and will constitute
legal, valid and binding obligations of the Issuer enforceable against the
Issuer in accordance with their terms subject to applicable bankruptcy,
insolvency and similar laws affecting creditors’ rights generally, and subject,
as to enforceability, to general principles of equity (regardless of whether
enforcement is sought in a proceeding in equity or at law). 2.4 The offer
and sale of Notes in the manner contemplated hereby do not require registration
of the Notes under the Securities Act, pursuant to the exemption from
registration contained in Section 4(2) thereof, and no indenture in respect of
the Notes is required to be qualified under the Trust Indenture Act of 1939, as
amended. 2.5 The Notes will rank at least pari passu with all other
unsecured and unsubordinated indebtedness of the Issuer. 2.6 No consent or
action of, or filing or registration with, any governmental or public regulatory
body or authority, including the SEC, is required to authorize, or is otherwise
required in connection with the execution, delivery or performance of, this
Agreement, the Notes or the Issuing and Paying Agency Agreement, except as may
be required by the securities or Blue Sky laws of the various states in
connection with the offer and sale of the Notes. 2.7 None of the execution
and delivery of this Agreement and the Issuing and Paying Agency Agreement, the
issuance and delivery of the Notes in accordance with the Issuing and Paying
Agency Agreement, or the fulfillment of or compliance with the terms and
provisions hereof or thereof by the Issuer, will (i) result in the creation or
imposition of any mortgage, lien, charge or encumbrance of any nature whatsoever
upon any of the properties or assets of the Issuer or (ii) violate or result in
a breach or an event of default under any of the terms of the Issuer’s charter
documents or by-laws, any material contract or instrument to which the Issuer is
a party or by which it or its property is bound, or any law or regulation, or
any order, writ, injunction or decree of any court or government
instrumentality, to which the Issuer is
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subject or by which it or its property is bound, which violation, breach or
event of default is reasonably likely to have a material adverse effect on the
business, operations or financial condition of the Issuer and its subsidiaries
taken as a whole or the ability of the Issuer to perform its obligations under
this Agreement, the Notes or the Issuing and Paying Agency Agreement. 2.8
There is no litigation or governmental proceeding pending, or to the knowledge
of the Issuer threatened, against or affecting the Issuer or any of its
subsidiaries which is reasonably likely to result in a material adverse change
in the business, operations or financial condition of the Issuer and its
subsidiaries taken as a whole or the ability of the Issuer to perform its
obligations under this Agreement, the Notes or the Issuing and Paying Agency
Agreement. 2.9 The Issuer is not an “investment company” or an entity
“controlled” by an “investment company” within the meaning of the Investment
Company Act of 1940, as amended. 2.10 Neither the Private Placement
Memorandum nor the Company Information (excluding Dealer Information) contains
any untrue statement of a material fact or omits to state a material fact
required to be stated therein or necessary to make the statements therein, in
light of the circumstances under which they were made, not misleading. 2.11
Such Guarantor is duly organized, validly existing and in good standing under
the laws of the jurisdiction of its formation and has all the requisite power
and authority to execute, deliver and perform its obligations under its
Guarantee, this Agreement and, in the case of the Note Guarantor, the Issuing
and Paying Agency Agreement. 2.12 This Agreement, the Guarantee of such
Guarantor and, in the case of the Note Guarantor, the Issuing and Paying Agency
Agreement, have been duly authorized, executed and delivered by such Guarantor
party thereto, and constitute legal, valid and binding obligations of such
Guarantor, enforceable against such Guarantor party thereto in accordance with
their terms, subject to applicable bankruptcy, insolvency and similar laws
affecting creditors’ rights generally, and subject, as to enforceability, to
general principles of equity (regardless of whether enforcement is sought in a
proceeding in equity or at law) and except as enforceability of the
indemnification provisions of this Agreement may be limited by federal
securities laws. 2.13 No consent or action of, or filing or registration
with, any governmental or public regulatory body or authority, including the
SEC, is required to authorize, or is otherwise required in connection with the
execution, delivery or performance of, this Agreement, the Guarantees or, in the
case of the Note Guarantor, the Issuing and Paying Agency Agreement, except as
may be required by the securities or Blue Sky laws of the various states in
connection with the offer and sale of the Notes. 2.14 Neither the execution
and delivery by such Guarantor of this Agreement, the Guarantees and, in the
case of the Note Guarantor, the Issuing and Paying Agency Agreement, nor the
fulfillment of or compliance with the terms and provisions hereof or thereof by
such Guarantor party thereto, as applicable, will (i) result in the creation or
imposition of any mortgage, lien, charge or encumbrance of any nature whatsoever
upon any of the respective properties or assets of such Guarantor or
(ii) violate or result in a breach or an event of default under any of the terms
of such Guarantor’s formation documents, any material contract or instrument to
which such Guarantor is a party or by which it or its property is bound, or any
law or regulation, or any order, writ, injunction or decree of any court or
government instrumentality, to which such Guarantor is subject or by which it or
its property is bound, which violation, breach or event of default is reasonably
likely to have a material adverse effect on the financial condition of such
Guarantor and its subsidiaries, taken as a whole, or the ability of such
Guarantor to perform its obligations under this Agreement, its respective
Guarantee or, in the case of the Note Guarantor, the Issuing and Paying Agency
Agreement. 2.15 Such Guarantor’s Guarantee will rank at least pari
passu with all other senior unsecured debt of such Guarantor.
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2.16 There is no litigation or governmental proceeding pending, or to
the knowledge of such Guarantor threatened, against or affecting such Guarantor
or any of its subsidiaries which is reasonably likely to result in a material
adverse change in financial condition of such Guarantor and its subsidiaries
taken as a whole or the ability of such Guarantor to perform its obligations
under this Agreement, its Guarantee or, in the case of the Note Guarantor, the
Issuing and Paying Agency Agreement. 2.17 Such Guarantor is not an
“investment company” or an entity “controlled” by an “investment company” within
the meaning of the Investment Company Act of 1940, as amended. 2.18 The
Guarantor Information does not contain any untrue statement of a material fact
or omit to state a material fact required to be stated therein or necessary to
make the statements therein, in light of the circumstances under which they were
made, not misleading. 2.19 The issuance of the Guarantees in the manner
contemplated hereby does not require registration under the Securities Act,
pursuant to the exemption from registration contained in Section 4(2) thereof,
and no indenture in respect of the Guarantees is required to be qualified under
the Trust Indenture Act of 1939, as amended. 2.20 Each issuance of Notes by
the Issuer hereunder and each amendment or supplement to the Private Placement
Memorandum shall be deemed a representation and warranty by the Issuer and each
Guarantor, as applicable, to the Dealer, as of the date thereof, that, both
before and after giving effect to such issuance and after giving effect to such
amendment or supplement, (i) the representations and warranties given by the
Issuer and such Guarantor set forth above in this Section 2 remain true and
correct on and as of such date as if made on and as of such date and (ii) in the
case of an issuance of Notes, since the date of the most recent Private
Placement Memorandum, there has been no material adverse change in the business,
operations or financial condition of the Issuer or such Guarantor and its
respective subsidiaries, taken as a whole, which has not been disclosed to the
Dealer. Section 3. Covenants and Agreements of Issuer and Guarantors The
Issuer and each Guarantor covenants and agrees, as applicable, that: 3.1
The Issuer will give the Dealer prompt notice (but in any event prior to any
subsequent issuance of Notes hereunder) of any amendment to, modification of, or
waiver with respect to, the Notes, any Guarantee or the Issuing and Paying
Agency Agreement, including a complete copy of any such amendment, modification
or waiver. 3.2 The Issuer shall, whenever there shall occur any change in
the business, operations or financial condition of the Issuer or a Guarantor or
any development or occurrence in relation to the Issuer or a Guarantor that
would be materially adverse to holders of the Notes or potential holders of the
Notes, promptly, and in any event prior to any subsequent issuance of Notes
hereunder, notify the Dealer (by telephone, confirmed in writing) of such
change, development, or occurrence; provided that, to the extent any such
development or occurrence is described in reasonable detail in any periodic or
current report of the Issuer on file with the Securities and Exchange Commission
and available to the Dealer on a timely basis, the Dealer shall be deemed
notified in accordance herewith. 3.3 The Issuer and each Guarantor shall
from time to time furnish to the Dealer such publicly released information with
respect to the Issuer or the Guarantors as the Dealer may reasonably request,
including, without limitation, any press releases or other publicly released
material provided by the Issuer or any Guarantor to any national securities
exchange or rating agency, regarding (i) the Issuer’s and such Guarantor’s
operations and financial condition, (ii) the due authorization and execution of
the Notes or the applicable Guarantee and (iii) the Issuer’s ability to pay the
Notes as they mature or such Guarantor’s ability to make payments under its
Guarantee. 3.4 The Issuer and each Guarantor will take such action as the
Dealer may from time to time reasonably request to ensure that each offer and
each sale of the Notes in the manner contemplated hereby
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will comply with any applicable state Blue Sky laws; provided, that
neither the Issuer nor any of the Guarantors shall be obligated to file any
general consent to service of process or to qualify as a foreign corporation in
any jurisdiction in which it is not so qualified or subject itself to taxation
in respect of doing business in any jurisdiction in which it is not otherwise so
subject. 3.5 The Issuer shall not issue Notes hereunder until the Dealer
shall have received (a) an opinion of counsel to the Issuer and the Guarantors,
addressed to the Dealer, reasonably satisfactory in form and substance to the
Dealer, (b) a copy of the executed Guarantees, (c) a copy of the executed
Issuing and Paying Agency Agreement, (d) a copy of resolutions adopted by the
Board of Directors of the Issuer, reasonably satisfactory in form and substance
to the Dealer and certified by the Secretary or similar officer of the Issuer,
authorizing execution and delivery by the Issuer of this Agreement, the Issuing
and Paying Agency Agreement and the Notes and consummation by the Issuer of the
transactions contemplated hereby and thereby, (e) a copy of resolutions adopted
by the Board of Directors of each Guarantor, reasonably satisfactory in form and
substance to the Dealer and certified by the Secretary or Assistant Secretary of
the applicable Guarantor authorizing, as applicable, the execution and delivery
by such Guarantor of this Agreement, its Guarantee and (in the case of the Note
Guarantor) the Issuing and Paying Agency Agreement and consummation by such
Guarantor of the transactions contemplated hereby and thereby, (f) prior to the
issuance of any Notes represented by a book-entry note registered in the name of
DTC or its nominee, a copy of the executed Letter of Representations among the
Issuer, the Issuing and Paying Agent and DTC dated February 16, 2011 and
(g) such other certificates, opinions, letters and documents as the Dealer shall
have reasonably requested. 3.6 The Issuer shall not issue Notes such that
the aggregate principal amount outstanding at any time would exceed the total
amount of the available revolving credit commitments then in effect that may be
drawn upon to pay the Notes under (a) the Credit Agreement dated as of
January 19, 2011 (as amended, supplemented, restated or otherwise modified from
time to time, the “Revolving Credit Agreement”), among Time Warner Inc., Time
Warner International Finance Limited, the Lenders party thereto, and Citibank,
N.A., as administrative agent and (b) any other financing arrangements that
replace or supplement the Revolving Credit Agreement. Section 4.
Disclosure 4.1 The Private Placement Memorandum and its contents
(other than the Dealer Information) shall be the sole responsibility of the
Issuer and the Guarantors. The Private Placement Memorandum shall contain a
statement expressly offering an opportunity for each prospective purchaser to
ask questions of, and receive answers from, the Issuer and the Guarantors
concerning the offering of Notes and to obtain relevant additional information
which the Issuer or the Guarantors possess or can acquire without unreasonable
effort or expense. 4.2 Each of the Issuer and each Guarantor agrees to
furnish the Dealer with the Company Information and the Guarantor Information
promptly as it becomes available. 4.3 (a) The Issuer and each Guarantor
further agree to notify the Dealer promptly upon the occurrence of any event
relating to or affecting it that would cause the Company Information or the
Guarantor Information then in existence to include an untrue statement of
material fact or to omit to state a material fact necessary in order to make the
statements contained therein, in light of the circumstances under which they are
made, not misleading. (b) In the event that the Issuer or a Guarantor
gives the Dealer notice pursuant to Section 4.3(a) and the Dealer notifies the
Issuer that it then has Notes it is holding in inventory, the Issuer agrees
promptly to supplement or amend the Private Placement Memorandum so that such
Private Placement Memorandum, as amended or supplemented, shall not contain an
untrue statement of a material fact or omit to state a material fact necessary
in order to make the statements therein, in light of the circumstances under
which they were made, not misleading, and the Issuer shall make such supplement
or amendment available to the Dealer.
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(c) In the event that (i) the Issuer or a Guarantor gives the
Dealer notice pursuant to Section 4.3(a) and (ii) the Dealer does not notify the
Issuer that it is then holding Notes in inventory and (iii) the Issuer chooses
not to promptly amend or supplement the Private Placement Memorandum in the
manner described in clause (b) above, then all solicitations and sales of Notes
shall be suspended until such time as the Issuer has so amended or supplemented
the Private Placement Memorandum, and made such amendment or supplement
available to the Dealer. 4.4 The Issuer agrees that it shall not have
outstanding at any time Notes issued in an aggregate amount in excess of the
authorized amount of the respective Guarantees. Section 5. Indemnification
and Contribution 5.1 The Issuer and the Guarantors, jointly and
severally, will indemnify and hold harmless the Dealer, each individual,
corporation, partnership, trust, association or other entity controlling the
Dealer, any affiliate of the Dealer or any such controlling entity and their
respective directors, officers, employees, partners, incorporators,
shareholders, servants, trustees and agents (hereinafter the “Indemnitees”)
against any and all liabilities, penalties, suits, causes of action, losses,
damages, claims, costs and expenses (including, without limitation, reasonable
fees and disbursements of counsel) or judgments of whatever kind or nature (each
a “Claim”), imposed upon, incurred by or asserted against the Indemnitees
arising out of or based upon (i) any allegation that the Private Placement
Memorandum, the Company Information or, the Guarantor Information included (as
of any relevant time) or includes an untrue statement of a material fact or
omitted (as of any relevant time) or omits to state any material fact necessary
to make the statements therein, in light of the circumstances under which they
were made, not misleading or (ii) the breach by the Issuer or a Guarantor of any
agreement, covenant or representation made in or pursuant to this Agreement.
This indemnification shall not apply to the extent that the Claim arises out of
or is based upon Dealer Information or the gross negligence or willful
misconduct of the Dealer in the performance, or failure to perform, its
obligations under this Agreement. 5.2 Provisions relating to claims made
for indemnification under this Section 5 are set forth on Exhibit B to this
Agreement. 5.3 In order to provide for just and equitable contribution in
circumstances in which the indemnification provided for in this Section 5 is
held to be unavailable or insufficient to hold harmless the Indemnitees,
although applicable in accordance with the terms of this Section 5, the Issuer
and the Guarantors, jointly and severally shall contribute to the aggregate
costs incurred by the Dealer in connection with any Claim in the proportion of
the respective economic interests of the Issuer and the Guarantors, on the one
hand, and the Dealer, on the other hand; provided, however, that such
contribution by the Issuer and the Guarantors shall be in an amount such that
the aggregate costs incurred by the Dealer do not exceed the aggregate of the
commissions and fees earned by the Dealer hereunder with respect to the issue or
issues of Notes to which such Claim relates. The respective economic interests
shall be calculated by reference to the aggregate proceeds to the Issuer of the
Notes issued hereunder and the aggregate commissions and fees earned by the
Dealer hereunder. Section 6. Definitions 6.1 “Claim” shall have the
meaning set forth in Section 5.1. 6.2 “Company Information” at any given
time shall mean the Private Placement Memorandum together with, to the extent
applicable, (i) the Issuer’s most recent report on Form 10-K filed with the SEC
and each report on Form 10-Q or 8-K filed by the Issuer with the SEC since the
most recent Form 10-K, in each case as amended and/or restated from time to
time, (ii) any other publicly available recent reports of the Issuer, including,
but not limited to, any publicly available filings or reports provided to its
shareholders, (iii) any other information or disclosure prepared pursuant to
Section 4.3 hereof and (iv) any information prepared or approved by the Issuer
for dissemination to investors or potential investors in the Notes.
9
6.3 “Dealer” shall mean the Dealer named on the cover page of this
Agreement. 6.4 “Dealer Information” shall mean material concerning the
Dealer and provided by the Dealer in writing expressly for inclusion in the
Private Placement Memorandum. 6.5 “DTC” shall mean The Depository Trust
Company. 6.6 “Exchange Act” shall mean the U.S. Securities Exchange Act of
1934, as amended. 6.7 “Guarantor Information” at any given time shall mean
information with respect to a Guarantor or the Guarantors contained in the
Private Placement Memorandum together with, (i) to the extent prepared and
publicly filed by the applicable Guarantor, the respective Guarantor’s most
recent annual audited financial statements and each interim financial statement
or report prepared subsequent thereto, (ii) the Guarantor’s other publicly
available recent reports, including, but not limited to, any publicly available
filings or reports provided to its shareholders, (iii) any other information or
disclosure prepared pursuant to Section 4.3 hereof and (iv) any information
prepared or approved by the respective Guarantor for dissemination to investors
or potential investors in the Notes. 6.8 “Indemnitee” shall have the
meaning set forth in Section 5.1. 6.9 “Institutional Accredited Investor”
shall mean an institutional investor that is an accredited investor within the
meaning of Rule 501 under the Securities Act and that has such knowledge and
experience in financial and business matters that it is capable of evaluating
and bearing the economic risk of an investment in the Notes, including, but not
limited to, a bank, as defined in Section 3(a)(2) of the Securities Act, or a
savings and loan association or other institution, as defined in
Section 3(a)(5)(A) of the Securities Act, whether acting in its individual or
fiduciary capacity. 6.10 “Issuing and Paying Agency Agreement” shall mean
the issuing and paying agency agreement described on the cover page of this
Agreement, as such agreement may be amended or supplemented from time to time.
6.11 “Issuing and Paying Agent” shall mean the party designated as such on
the cover page of this Agreement, as issuing and paying agent under the Issuing
and Paying Agency Agreement. 6.12 “Non-bank fiduciary or agent” shall mean
a fiduciary or agent other than (a) a bank, as defined in Section 3(a)(2) of the
Securities Act, or (b) a savings and loan association, as defined in
Section 3(a)(5)(A) of the Securities Act. 6.13 “Private Placement
Memorandum” shall mean offering materials prepared in accordance with Section 4
(including materials referred to therein or incorporated by reference therein)
provided to purchasers and prospective purchasers of the Notes, and shall
include amendments and supplements thereto which may be prepared from time to
time in accordance with this Agreement (other than any amendment or supplement
that has been completely superseded by a later amendment or supplement).
6.14 “Qualified Institutional Buyer” shall have the meaning assigned to
that term in Rule 144A under the Securities Act. 6.15 “Revolving Credit
Agreement” shall have the meaning set forth in Section 3.6. 6.16
“Rule 144A” shall mean Rule 144A under the Securities Act. 6.17 “SEC” shall
mean the U.S. Securities and Exchange Commission. 6.18 “Securities Act”
shall mean the U.S. Securities Act of 1933, as amended.
10
6.19 “Sophisticated Individual Accredited Investor” shall mean an
individual who (a) is an accredited investor within the meaning of Regulation D
under the Securities Act and (b) based on his or her pre-existing relationship
with the Dealer, is reasonably believed by the Dealer to be a sophisticated
investor (i) possessing such knowledge and experience (or represented by a
fiduciary or agent possessing such knowledge and experience) in financial and
business matters that he or she is capable of evaluating and bearing the
economic risk of an investment in the Notes and (ii) having not less than
$5 million in investments (as defined, for purposes of this section, in Rule
2a51-1 under the Investment Company Act of 1940, as amended). Section 7.
General 7.1 Unless otherwise expressly provided herein, all notices
under this Agreement to parties hereto shall be in writing and shall be
effective when received at the address of the respective party set forth in the
Addendum to this Agreement. 7.2 This Agreement shall be governed by and
construed in accordance with the laws of the State of New York, without regard
to its conflict of laws provisions. 7.3 The Issuer, each Guarantor and the
Dealer agree that any suit, action or proceeding brought by any of them against
another in connection with or arising out of this Agreement or the Notes or the
offer and sale of the Notes shall be brought solely in the United States federal
courts located in the borough of Manhattan or the courts of the State of New
York located in the Borough of Manhattan. EACH OF THE DEALER, THE ISSUER AND
EACH GUARANTOR WAIVES ITS RIGHT TO TRIAL BY JURY IN ANY SUIT, ACTION OR
PROCEEDING WITH RESPECT TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED
HEREBY. 7.4 This Agreement may be terminated, at any time, by the Issuer,
upon four business day’s prior notice to such effect to the Dealer, or by the
Dealer upon four business day’s prior notice to such effect to the Issuer. Any
such termination, however, shall not affect the obligations of the Issuer or the
Guarantors under Sections 5 and 7.3 hereof or the respective representations,
warranties, agreements, covenants, rights or responsibilities of the parties
made or arising prior to the termination of this Agreement. 7.5 This
Agreement is not assignable by any party hereto without the written consent of
the other parties, which consent shall not be unreasonably withheld, except that
such consent shall not be required in connection with an assignment by the
Dealer of its rights and obligations under this Agreement to an entity
(“Successor Entity”) in which the Dealer merges or which acquires all or
substantially all of the Dealer’s assets (including its rights and obligations
under this Agreement) if the debt rating given by each of Standard & Poor’s
and Moody’s to the long-term senior unsecured debt of the Successor Entity is
not lower than the debt rating given by Standard & Poor’s or Moody’s, as
applicable, to the long-term senior unsecured debt of the Dealer. 7.6 This
Agreement may be signed in any number of counterparts, each of which shall be an
original, with the same effect as if the signatures thereto and hereto were upon
the same instrument. 7.7 This Agreement shall inure to the benefit of and
be binding upon the Issuer, each Guarantor and the Dealer and their respective
successors. Nothing expressed or mentioned in this Agreement is intended or
shall be construed to give any person, firm or corporation, other than the
parties hereto and their respective successors any legal or equitable right,
remedy or claim under or in respect of this Agreement or any provision herein
contained. This Agreement and all conditions and provisions hereof are intended
to be for the sole and exclusive benefit of the parties hereto and their
respective successors, and for the benefit of no other person, firm or
corporation. No purchaser of Notes shall be deemed to be a successor by reason
merely of such purchase. 7.8 The parties acknowledge and agree that
effective upon the execution and delivery of this Agreement, the Commercial
Paper Dealer Agreement among the Issuer, Historic TW Inc., TW AOL
11
Holdings Inc., the Supplemental Guarantors and the Dealer, dated as of
January 25, 2007, relating to the sale and placement of short-term promissory
notes within the United States (the “Prior Agreement”) shall terminate (other
than those provisions which are expressed in the Prior Agreement to survive
termination) and the parties waive the required notice period in Section 7.3 of
the Prior Agreement. 7.9 The Issuer and Guarantors acknowledge and agree
that in connection with the purchase and sale of the Notes or any other services
the Dealer may be deemed to be providing hereunder, notwithstanding any
preexisting relationship, advisory or otherwise, between the parties or any oral
representations or assurances previously or subsequently made by the Dealer:
(i) except to the extent explicitly set forth herein, no fiduciary or agency
relationship between the Issuer and Guarantors, on the one hand, and the Dealer,
on the other, exists in respect of this Agreement or the purchase and sale of
the Notes; (ii) the Dealer is not acting as advisor, expert or otherwise, to
either the Issuer or any of the Guarantors, including, without limitation, with
respect to the determination of the offering price of the Notes, and such
relationship between the Issuer and the Guarantors, on the one hand, and the
Dealer, on the other, is entirely and solely commercial, based on arms-length
negotiations; and (iii) the Dealer and its affiliates may have interests that
differ from those of the Issuer or the Guarantors. 7.10 Upon the release of
a Guarantee and of the applicable Guarantor from its obligations under such
Guarantee in accordance with such Guarantee, such Guarantor shall cease to be a
party to this Agreement, without any notice or action being required.
12
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the date and year first above written.
| Time Warner Inc.
, as Issuer |
||||
|
By: |
||||
|
Name: |
Edward B. Ruggiero |
|||
|
Title: |
Senior Vice President and Treasurer |
|||
| Historic TW Inc.
, as Note Guarantor |
||||
|
By: |
||||
|
Name: |
Edward B. Ruggiero |
|||
|
Title: |
Senior Vice President and Treasurer |
|||
| Home Box Office, Inc.
, as Supplemental Guarantor |
||||
|
By: |
||||
|
Name: |
Edward B. Ruggiero |
|||
|
Title: |
Senior Vice President and Assistant Treasurer |
|||
| Turner Broadcasting System, Inc.
, as Supplemental |
||||
|
By: |
||||
|
Name: |
Edward B. Ruggiero |
|||
|
Title: |
Senior Vice President and Assistant Treasurer |
|||
| []
, as Dealer |
||||
|
By: |
||||
|
Name: |
||||
|
Title: |
||||
13
ADDENDUM
|
1. |
The dealers referred to in clause (b) of Section 1.2 of the Agreement are: |
|
|
2. |
The addresses of the respective parties for purposes of notices under |
| For the Issuer
: |
||||
|
Address: |
Time Warner Inc. |
|||
|
One Time Warner Center |
||||
|
New York, NY 10019 |
||||
|
Attention: Treasurer |
||||
|
Telephone: (212) 484-8378 |
||||
|
With a copy to the same address: |
||||
|
Attention: Assistant Treasurer, Treasury Operations |
||||
|
Telephone: (212) 484-8378 |
||||
| For the Guarantors
: |
||||
|
Address: |
Historic TW Inc. |
|||
|
One Time Warner Center |
||||
|
New York, NY 10019 |
||||
|
Attention: Treasurer |
||||
|
Telephone: (212) 484-8378 |
||||
|
With a copy to the same address: |
||||
|
Attention: Assistant Treasurer, Treasury Operations |
||||
|
Telephone: (212) 484-8378 |
||||
|
Address: |
Home Box Office, Inc. |
|||
|
1100 Avenue of the Americas |
||||
|
New York, NY 10036 |
||||
|
Attention: Assistant Treasurer |
||||
|
Telephone number: (212) 484-8378 |
||||
|
With a copy to Time Warner at its address set forth above. |
||||
|
Address: |
Turner Broadcasting System, Inc. |
|||
|
One CNN Center |
||||
|
Atlanta, GA 30303 |
||||
|
Attention: Assistant Treasurer |
||||
|
Telephone number: (212) 484-8378 |
||||
|
With a copy to Time Warner at its address set forth above. |
||||
14
| For the Dealer: | ||||
|
Address: [] |
||||
|
Telephone number: [] |
||||
|
Fax number: [] |
||||
15
EXHIBIT A
FORM OF LEGEND FOR
PRIVATE PLACEMENT MEMORANDUM AND NOTES THE NOTES AND THE GUARANTEES OFFERED
HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE “ACT”), OR ANY OTHER APPLICABLE SECURITIES LAW, AND OFFERS AND SALES
THEREOF MAY BE MADE ONLY IN COMPLIANCE WITH AN APPLICABLE EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE ACT AND ANY APPLICABLE STATE SECURITIES LAWS.
BY ITS ACCEPTANCE OF A NOTE, THE PURCHASER WILL BE DEEMED TO REPRESENT THAT IT
HAS BEEN AFFORDED AN OPPORTUNITY TO INVESTIGATE MATTERS RELATING TO THE ISSUER
AND THE NOTES AND THE GUARANTEES AND THE GUARANTORS, THAT IT IS NOT ACQUIRING
SUCH NOTE WITH A VIEW TO ANY DISTRIBUTION THEREOF AND THAT IT IS EITHER (A) AN
INSTITUTIONAL INVESTOR OR HIGHLY SOPHISTICATED INDIVIDUAL INVESTOR THAT IS AN
ACCREDITED INVESTOR WITHIN THE MEANING OF RULE 501(a) UNDER THE ACT AND WHICH,
IN THE CASE OF AN INDIVIDUAL, (i) POSSESSES SUCH KNOWLEDGE AND EXPERIENCE IN
FINANCIAL AND BUSINESS MATTERS THAT HE OR SHE IS CAPABLE OF EVALUATING AND
BEARING THE ECONOMIC RISK OF AN INVESTMENT IN THE NOTES AND (ii) HAS NOT LESS
THAN $5 MILLION IN INVESTMENTS (AS DEFINED, FOR PURPOSES OF THIS PARAGRAPH, IN
RULE 2A51-1 UNDER THE INVESTMENT COMPANY ACT OF 1940, AS AMENDED) (AN
“INSTITUTIONAL ACCREDITED INVESTOR” OR “SOPHISTICATED INDIVIDUAL ACCREDITED
INVESTOR”, RESPECTIVELY) AND THAT EITHER IS PURCHASING NOTES FOR ITS OWN
ACCOUNT, IS A U.S. BANK (AS DEFINED IN SECTION 3(a)(2) OF THE ACT) OR A SAVINGS
AND LOAN ASSOCIATION OR OTHER INSTITUTION (AS DEFINED IN SECTION 3(a)(5)(A) OF
THE ACT) ACTING IN ITS INDIVIDUAL OR FIDUCIARY CAPACITY OR IS A FIDUCIARY OR
AGENT (OTHER THAN SUCH A BANK OR SAVINGS AND LOAN ASSOCIATION OR OTHER
INSTITUTION) PURCHASING NOTES FOR ONE OR MORE ACCOUNTS EACH OF WHICH IS SUCH AN
INSTITUTIONAL ACCREDITED INVESTOR OR SOPHISTICATED INDIVIDUAL ACCREDITED
INVESTOR (i) WHICH ITSELF POSSESSES SUCH KNOWLEDGE AND EXPERIENCE OR (ii) WITH
RESPECT TO WHICH SUCH PURCHASER HAS SOLE INVESTMENT DISCRETION; OR (B) A
QUALIFIED INSTITUTIONAL BUYER (“QIB”) WITHIN THE MEANING OF RULE 144A UNDER THE
ACT WHICH IS ACQUIRING NOTES FOR ITS OWN ACCOUNT OR FOR ONE OR MORE ACCOUNTS,
EACH OF WHICH IS A QIB AND WITH RESPECT TO EACH OF WHICH THE PURCHASER HAS SOLE
INVESTMENT DISCRETION; AND THE PURCHASER ACKNOWLEDGES THAT IT IS AWARE THAT THE
SELLER MAY RELY UPON THE EXEMPTION FROM THE REGISTRATION PROVISIONS OF SECTION 5
OF THE ACT PROVIDED BY RULE 144A. BY ITS ACCEPTANCE OF A NOTE, THE PURCHASER
THEREOF SHALL ALSO BE DEEMED TO AGREE THAT ANY RESALE OR OTHER TRANSFER THEREOF
WILL BE MADE ONLY (A) IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER THE ACT,
EITHER (i) TO THE ISSUER OR TO __________________________ OR ANOTHER PERSON
DESIGNATED BY THE ISSUER AS A PLACEMENT AGENT FOR THE NOTES (COLLECTIVELY, THE
“PLACEMENT AGENTS”), NONE OF WHICH SHALL HAVE ANY OBLIGATION TO ACQUIRE SUCH
NOTE, (ii) THROUGH A PLACEMENT AGENT TO AN INSTITUTIONAL ACCREDITED INVESTOR OR
SOPHISTICATED INDIVIDUAL ACCREDITED INVESTOR OR A QIB BY A PLACEMENT AGENT OR
(iii) TO A QIB IN A TRANSACTION THAT MEETS THE REQUIREMENTS OF RULE 144A AND
(B) IN MINIMUM AMOUNTS OF $250,000.
16
EXHIBIT B
FURTHER PROVISIONS RELATING
TO INDEMNIFICATION (a) The Issuer and the Guarantors, jointly and severally
agree to reimburse each Indemnitee for all expenses (including reasonable fees
and disbursements of external counsel) as they are incurred by it in connection
with investigating or defending any loss, claim, damage, liability or action in
respect of which indemnification may be sought under Section 5 of the Agreement
(whether or not it is a party to any such proceedings). (b) Promptly after
receipt by an Indemnitee of notice of the existence of a Claim, such Indemnitee
will, if a claim in respect thereof is to be made against the Issuer or any
Guarantor, notify the Issuer and such Guarantor in writing of the existence
thereof; provided that (i) the omission so to notify either or both the Issuer
or such Guarantor will not relieve either of them from any liability which it
may have hereunder unless and except to the extent it did not otherwise learn of
such Claim and such failure results in the forfeiture by each of them of
substantial rights and defenses and (ii) the omission so to notify the Issuer or
such Guarantor will not relieve it from liability which it may have to an
Indemnitee otherwise than on account of this indemnity agreement. In case any
such Claim is made against any Indemnitee and it notifies the Issuer and the
Guarantors of the existence thereof, the Issuer and the Guarantors will be
entitled to participate therein, and to the extent that any of them may elect by
written notice delivered to the Indemnitee, to assume the defense thereof, with
counsel reasonably satisfactory to such Indemnitee; provided that if the
defendants in any such Claim include both the Indemnitee and the Issuer or any
Guarantor and the Indemnitee shall have concluded that there may be legal
defenses available to it which are different from or additional to those
available to the Issuer or such Guarantor(s), neither the Issuer nor such
Guarantor(s) shall have the right to direct the defense of such Claim on behalf
of such Indemnitee, and the Indemnitee shall have the right to select separate
counsel reasonably satisfactory to the Issuer to assert such legal defenses on
behalf of such Indemnitee. Upon receipt of notice from the Issuer or a Guarantor
to such Indemnitee of the election of the Issuer or such Guarantor(s) so to
assume the defense of such Claim and approval by the Indemnitee of counsel, the
Issuer and such Guarantor(s) will not be liable to such Indemnitee for expenses
incurred thereafter by the Indemnitee in connection with the defense thereof
(other than reasonable costs of investigation) unless (i) the Indemnitee shall
have employed separate counsel in connection with the assertion of legal
defenses in accordance with the proviso to the next preceding sentence (it being
understood, however, that the Issuer and the Guarantors shall not be liable for
the expenses of more than one separate counsel (in addition to any local counsel
in the jurisdiction in which any Claim is brought), approved by the Dealer,
representing the Indemnitee who is party to such Claim), (ii) the Issuer or such
Guarantor(s) shall not have employed counsel reasonably satisfactory to the
Indemnitee to represent the Indemnitee within a reasonable time after notice of
existence of the Claim or (iii) the Issuer or any Guarantor has authorized in
writing the employment of counsel for the Indemnitee. The indemnity,
reimbursement and contribution obligations of the Issuer and the Guarantors
hereunder shall be in addition to any other liability the Issuer and the
Guarantors may otherwise have to an Indemnitee and shall be binding upon and
inure to the benefit of any successors, assigns, heirs and personal
representatives of the Issuer, the Guarantors and any Indemnitee. The Issuer and
each Guarantor agrees that without the Dealer’s prior written consent it will
not settle, compromise or consent to the entry of any judgment in any Claim in
respect of which any Indemnitee is or could have been a party and
indemnification may be sought under the indemnification provision of the
Agreement, unless such settlement, compromise or consent (i) includes an
unconditional release of each Indemnitee from all liability arising out of such
Claim and (ii) does not include a statement as to or an admission of fault,
culpability or failure to act, buy or on behalf of any Indemnitee; provided,
that if the conditions set forth in clauses (i) and (ii) are satisfied, the
Dealer shall not unreasonably without or delay its consent to a settlement,
compromise or consent to the entry of a judgment in respect of such a Claim.
17
EXHIBIT CFORM OF
GUARANTEEGUARANTEE
, dated as of February 16, 2011 (this “Guarantee”), of HISTORIC TW INC., a
Delaware corporation (the “Note Guarantor”). The Note Guarantor, for value
received, hereby irrevocably guarantees payment in full, as and when the same
becomes due and payable, of the principal of and interest, if any, on the
promissory notes (the “Notes”) issued by TIME WARNER INC., a Delaware
corporation (the “Company”), from time to time pursuant to the Issuing and
Paying Agency Agreement, dated as of February 16, 2011, as the same may be
amended, supplemented or modified from time to time (the “Agreement”), among the
Company, the Note Guarantor and JPMorgan Chase Bank, National Association
(“JPMorgan”) in the form of (i) certificated notes or (ii) book-entry
obligations evidenced by a master note payable to The Depository Trust Company
or its nominee. The Note Guarantor’s obligations under this Guarantee shall be
unconditional, irrespective of the validity or enforceability of any provision
of the Agreement or the Notes. This Guarantee is a guaranty of the due and
punctual payment (and not collectibility) of all obligations of the Company in
respect of the Notes and, unless the Note Guarantor is released from its
obligations hereunder as provided below, shall remain in full force and effect
until all amounts have been validly, finally and irrevocably paid in full, and
shall not be affected in any way by any circumstance or condition whatsoever,
including without limitation (a) the absence of any action to obtain such
amounts from the Company, (b) any variation, extension, waiver, compromise or
release of any or all of the obligations of the Company under the Agreement or
the Notes or of any collateral security therefor or (c) any change in the
existence or structure of, or the bankruptcy or insolvency of, the Company or by
any other circumstance (other than by complete, irrevocable payment) that might
otherwise constitute a legal or equitable discharge or defense of a guarantor.
The Note Guarantor waives all requirements as to promptness, diligence,
presentment, demand for payment, protest and notice of any kind with respect to
the Agreement and the Notes. Any term or provision of this Guarantee to the
contrary notwithstanding, the maximum aggregate amount of the Note Guarantor’s
obligations hereunder shall not exceed the maximum amount that can be hereby
guaranteed without rendering this Guarantee voidable under applicable law
relating to fraudulent conveyance or fraudulent transfer or similar laws
affecting the rights of creditors generally. Any term or provision of this
Guarantee to the contrary notwithstanding, the Note Guarantor shall be
automatically released from its obligations under this Guarantee, and the
guaranty of the Note Guarantor shall be automatically released, upon receipt by
JPMorgan of a certificate of a Responsible Officer of the Company certifying
that the Note Guarantor has no outstanding Indebtedness for Borrowed Money as of
the date of such certificate, other than any other guarantee of Indebtedness for
Borrowed Money that will be released concurrently with the release of this
Guarantee. Capitalized terms used in this paragraph but not defined herein have
the meaning assigned to them in the Credit Agreement, dated as of January 19,
2011 among the Company, Time Warner International Finance Limited, the lenders
party thereto and Citibank, N.A., as Administrative Agent). This Guarantee
shall remain in full force and effect or shall be reinstated (as the case may
be) if at any time any payment of the Company, in whole or in part, is rescinded
or must otherwise be returned by the holder upon the insolvency, bankruptcy or
reorganization of the Company or otherwise, all as though such payment had not
been made; provided that this Guarantee shall not be so reinstated if released
as provided above. This Guarantee shall be governed by and construed in
accordance with the law of the State of New York.
|
HISTORIC TW INC. |
||||
|
By: |
||||
18
EXHIBIT DFORM OF SUPPLEMENTAL
GUARANTEESUPPLEMENTAL GUARANTEE
, dated as of February 16, 2011 (this “Supplemental Guarantee”), of
[Name of Supplemental Guarantor], a corporation organized under
the laws of ___________ (the “Supplemental Guarantor”). The Supplemental
Guarantor, for value received, hereby irrevocably guarantees the full payment of
all monetary obligations of Historic TW Inc., a Delaware corporation (“HTW”),
under the Guarantee (the “HTW Guarantee”) dated the date hereof given by HTW
with respect to the payment of principal and interest on promissory notes the
(“Notes”) issued by Time Warner Inc., a Delaware corporation (the “Issuer”),
from time to time pursuant to the Issuing and Paying Agency Agreement, dated as
of February 16, 2011, as the same may be amended, supplemented or modified from
time to time (the “Agreement”), among the Issuer, HTW and JPMorgan Chase Bank,
National Association (“JPMorgan”), in the form of (i) certificated notes or
(ii) book-entry obligations evidenced by a master note payable to The Depository
Trust Company or its nominee, as and when the same becomes due and payable. The
Supplemental Guarantor’s obligations under this Supplemental Guarantee shall be
unconditional, irrespective of the validity or enforceability of any provision
of the Agreement, the Notes or the HTW Guarantee. This Supplemental
Guarantee is a guaranty of the due and punctual payment (and not collectibility)
of all obligations of HTW in respect of the HTW Guarantee and, unless the
Supplemental Guarantor is released from its obligations hereunder as provided
below, shall remain in full force and effect until all amounts have been
validly, finally and irrevocably paid in full, and shall not be affected in any
way by any circumstance or condition whatsoever, including without limitation
(a) the absence of any action to obtain such amounts from HTW or the Issuer,
(b) any variation, extension, waiver, compromise or release of any or all of the
obligations of HTW under the HTW Guarantee or the Issuer under the Agreement or
the Notes or of any collateral security therefor, or (c) any change in the
existence or structure of, or the bankruptcy or insolvency of, HTW or the Issuer
or by any other circumstance (other than by complete, irrevocable payment) that
might otherwise constitute a legal or equitable discharge or defense of a
guarantor. The Supplemental Guarantor waives all requirements as to promptness,
diligence, presentment, demand for payment, protest and notice of any kind with
respect to the HTW Guarantee, the Agreement or the Notes. Any term or
provision of this Supplemental Guarantee to the contrary notwithstanding, the
maximum aggregate amount of the Supplemental Guarantor’s obligations hereunder
shall not exceed the maximum amount that can be hereby guaranteed without
rendering this Supplemental Guarantee voidable under applicable law relating to
fraudulent conveyance or fraudulent transfer or similar laws affecting the
rights of creditors generally. Any term or provision of this Supplemental
Guarantee to the contrary notwithstanding, the Supplemental Guarantor shall be
automatically released from its obligations under this Supplemental Guarantee,
and the guaranty of the Supplemental Guarantor shall be automatically released,
upon receipt by JPMorgan of a certificate of a Responsible Officer of the
Company certifying that the Supplemental Guarantor has no outstanding
Indebtedness for Borrowed Money as of the date of such certificate, other than
any other guarantee of Indebtedness for Borrowed Money that will be released
concurrently with the release of this Supplemental Guarantee. Capitalized terms
used used in this paragraph but not defined herein have the meaning assigned to
them in the Credit Agreement, dated as of January 19, 2011 among the Company,
Time Warner International Finance Limited, the lenders party thereto and
Citibank, N.A., as Administrative Agent). This Supplemental Guarantee shall
remain in full force and effect or shall be reinstated (as the case may be) if
at any time any payment of HTW, in whole or in part, is rescinded or must
otherwise be returned by the holder upon the insolvency, bankruptcy or
reorganization of HTW or otherwise, all as though such
19
payment had not been made; provided that this Supplemental Guarantee shall
not be so reinstated if released as provided above. This Supplemental
Guarantee shall be governed by and construed in accordance with the law of the
State of New York.
|
[NAME OF SUPPLEMENTAL GUARANTOR] |
||||
|
By: |
||||
20
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