EXHIBIT 99.2
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EXECUTION VERSION
CONSENT AND AGREEMENT dated as of December
31, 2002 (this "CONSENT"), among TIME WARNER
ENTERTAINMENT-ADVANCE/NEWHOUSE PARTNERSHIP, a New
York general partnership ("TWEAN"), TIME WARNER
ENTERTAINMENT COMPANY, L.P., a Delaware limited
partnership ("TWE"), PARAGON COMMUNICATIONS, a
Colorado general partnership ("PARAGON") of which KBL
Communications, Inc. is the managing general partner,
ADVANCE/NEWHOUSE PARTNERSHIP, a New York general
partnership ("ANP") of which Advance Cable Holdings
Corp. ("ACH") and Newhouse Cable Holdings LLC ("NCH")
are the general partners, TWEAN SUBSIDIARY, LLC, a
Delaware limited liability company (the "INITIAL
BORROWER") of which TWEAN is the sole member, and
JPMORGAN CHASE BANK, solely as collateral agent for
the Secured Parties (in such capacity, the
"COLLATERAL AGENT") under the Guarantee and
Collateral and Intercreditor Agreement described
below.
WHEREAS pursuant to the Credit Agreement dated as of December
31, 2002 (as amended, supplemented or otherwise modified from time to time, the
"CREDIT AGREEMENT"), among the Initial Borrower (such term, and each other
capitalized term used and not otherwise defined herein having the meaning
assigned to it in Section 1 hereof); ANP; the Lenders party thereto; and
JPMorgan Chase Bank, as administrative agent for the Lenders (in such capacity,
the "ADMINISTRATIVE AGENT"), each of the Lenders has agreed to extend credit to
the Borrowers on the terms and subject to the conditions set forth therein;
WHEREAS pursuant to the Note Purchase Agreement dated as of
December 31, 2002 (as amended, supplemented or otherwise modified from time to
time, the "SENIOR NOTE PURCHASE AGREEMENT"), among the Initial Borrower, ANP and
Metropolitan Life Insurance Company, Metropolitan Insurance and Annuity Company,
General American Life Insurance Company, New England Life Insurance Company,
Texas Life Insurance Company, MetLife Bank, National Association, Pruco Life
Insurance Company, Pruco Life Insurance Company of New Jersey and The Prudential
Insurance Company of America, as initial purchasers (the "SENIOR NOTE
PURCHASERS"), each of the Senior Note Purchasers has agreed to purchase Senior
Notes on the terms and subject to the conditions set forth therein;
WHEREAS as security for the Borrowers' and ANP's obligations
to the Secured Parties under the Credit Agreement and the Senior Note Purchase
Agreement, the Loan Parties have entered into the Guarantee and Collateral and
Intercreditor Agreement dated as of December 31, 2002 (as amended, supplemented
or otherwise modified from time to time, the "GUARANTEE AND COLLATERAL
AGREEMENT"), among the Senior Note Purchasers, the Administrative Agent, and
JPMorgan Chase Bank, as Collateral Agent, providing, among other things, for the
assignment by the Initial Borrower and ANP to the Collateral Agent, for the
ratable benefit of the
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Secured Parties, of all of the Initial Borrower's and ANP's right, title and
interest in, to and under the Restructuring Agreements;
WHEREAS the Initial Borrower and ANP have requested that each
of TWEAN, TWE and Paragon consent to the foregoing assignment and agree to
certain related matters set forth herein;
WHEREAS it is a condition to the Lenders extending credit
under the Credit Agreement and the Senior Note Purchasers purchasing the Senior
Notes that, among other things, TWEAN, TWE and Paragon execute and deliver this
Consent;
WHEREAS pursuant to Section 2(vi) of the Consent and Agreement
dated as of August 1, 2002 among TWEAN, TWE, Paragon, ANP, ACH, NCH and JPMorgan
Chase Bank, TWEAN, TWE and Paragon agreed, upon the request of ANP, to enter
into a consent in the form of this Consent; and
WHEREAS each of TWEAN, TWE and Paragon is willing, on the
terms and subject to the conditions set forth herein, to grant this Consent, and
has duly authorized by all necessary action on its part the execution, delivery
and performance by it of this Consent.
NOW, THEREFORE, in consideration of the premises and the
agreements, provisions and covenants herein contained, the parties hereto hereby
agree as follows:
SECTION 1. DEFINITIONS. As used herein:
"ADDITIONAL SENIOR NOTES" shall mean senior secured notes of
the Borrowers issued under a supplement to the Senior Note Purchase Agreement.
"ADVANCE BORROWER" means a subsidiary of Advance Publications,
Inc. that shall become a Borrower as provided in Section 2.20 of the Credit
Agreement or Section 9.8 of the Senior Note Purchase Agreement.
"BORROWERS" means the Initial Borrower and the Advance
Borrower.
"LENDERS" means the Persons listed on Schedule 2.01 of the
Credit Agreement and any other Person that shall have become a Lender pursuant
to an Assignment and Assumption or an Incremental Term Loan Accession Agreement,
other than any such Person that shall have ceased to be a party to the Credit
Agreement pursuant to an Assignment and Assumption.
"LOAN PARTIES" means the Borrowers, each Subsidiary of either
Borrower, ANP, ACH, NCH and, from and after the designation of the Advance
Borrower, Advance Publications, Inc. and any other Person owning Equity
Interests in the Advance Borrower.
"RESTRUCTURING AGREEMENTS" means (a) the Master Transaction
Agreement dated as of August 1, 2002, among TWEAN, ANP, TWE, Paragon, Advance
Publications, Inc. and Newhouse Broadcasting Corporation, (b) each of the
"Transaction Agreements" referred to in
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such Master Transaction Agreement, (c) each other agreement or instrument
entered into or delivered pursuant to the Master Transaction Agreement or any
such Transaction Agreement and (d) all exhibits to any of the foregoing
documents.
"SECURED PARTIES" means (a) the Lenders from time to time
under the Credit Agreement, (b) the Issuing Bank under the Credit Agreement, (c)
the Administrative Agent under the Credit Agreement, (d) the Senior Note
Purchasers and each other holder from time to time of the Senior Notes and each
holder from time to time of Additional Senior Notes, (e) the Collateral Agent
under the Guarantee and Collateral Agreement, (f) any nominee that is
wholly-owned by one or more of such financial institutions to which any of the
foregoing shall assign or transfer any of its rights or interests under the
Credit Agreement, the Senior Note Purchase Agreement or the Guarantee and
Collateral Agreement so long as such nominee remains so directly or indirectly
wholly-owned, (g) each financial institution that is a counterparty to any
interest rate hedging agreement with a Borrower or a subsidiary of a Borrower
that either (i) is in effect on the date hereof if such counterparty is a Lender
under the Credit Agreement or an affiliate of such a Lender as of the date
hereof or (ii) is entered into after the closing date of the Credit Agreement if
such counterparty is a Lender under the Credit Agreement or an affiliate of such
a Lender at the time such interest rate hedging agreement is entered into, (h)
the beneficiaries of each indemnification obligation undertaken by any Loan
Party under the Credit Agreement, the Senior Note Purchase Agreement and the
Guarantee and Collateral Agreement, and (i) the successors and assigns of each
of the foregoing and the assigns of all or substantially all of their assets.
"SENIOR NOTES" means secured senior notes of the Borrowers in
an aggregate principal amount not to exceed $300,000,000 issued under the Senior
Note Purchase Agreement.
"TWEAN PARTNERSHIP AGREEMENT" means the Third Amended and
Restated Partnership Agreement of Time Warner Entertainment-Advance/Newhouse
Partnership dated as of December 31, 2002.
SECTION 2. CONSENTS TO ASSIGNMENT; AGREEMENTS; REPRESENTATION.
(a) TWEAN, TWE and Paragon hereby (i) irrevocably consent to the assignment by
each of the Initial Borrower and ANP of all its right, title and interest in, to
and under the Restructuring Agreements to the Collateral Agent as collateral for
the Borrowers' and ANP's obligations to the Secured Parties (and to any
assignment by the Collateral Agent to a nominee controlled by it and/or one or
more other Secured Parties that shall succeed to the rights of the Collateral
Agent and become the Collateral Agent), as well as to any foreclosure upon such
right, title and interest or any part thereof by the Collateral Agent on behalf
of the Secured Parties upon or after the exercise by the Collateral Agent on
behalf of the Secured Parties of their rights and remedies as secured creditors
of the Borrowers and ANP (any such transfer to such nominee that is wholly-owned
by the Collateral Agent or one or more of such other Secured Parties so long as
such nominee remains so directly or indirectly wholly-owned, and any such
foreclosure, being called a "FORECLOSURE"); (ii) agree that the Collateral Agent
on behalf of the Secured Parties shall have the right, after an Event of Default
under the Credit Agreement or Senior Note Purchase Agreement and as provided in
the Guarantee and Collateral Agreement, to make all demands, give all notices,
take all actions and exercise all rights permitted or required to be given,
taken or
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exercised by the Initial Borrower or ANP, and to receive any payments required
to be made to the Initial Borrower or ANP, under any or all of the Restructuring
Agreements; (iii) agree that upon any Foreclosure, the Collateral Agent on
behalf of the Secured Parties shall succeed to all of the Initial Borrower's or
ANP's right, title and interest in, to and under such Restructuring Agreements
and shall, among other things, have the rights referred to in the preceding
clause (ii), in each case subject to any limitations on such rights resulting
from the nonperformance of the obligations of the Initial Borrower and ANP and
to the other terms and conditions thereunder; (iv) agree to accept performance
of the Initial Borrower's or ANP's obligations under the Restructuring
Agreements by the Collateral Agent on behalf of the Secured Parties as
performance by the Initial Borrower or ANP, as the case may be; (v) acknowledge
and agree, notwithstanding anything to the contrary contained in the
Restructuring Agreements, that such assignment by the Initial Borrower and ANP
or any such Foreclosure by the Collateral Agent on behalf of the Secured Parties
shall not, in and of itself, constitute a default under any of the Restructuring
Agreements or result in a termination thereof or any loss or reduction of rights
thereunder; (vi) agree, upon the request of the Initial Borrower and ANP, to
enter into reasonable and customary documentation satisfactory to TWE and to the
Secured Parties pursuant to which TWEAN will pledge all the limited liability
company interests of TWEAN Subsidiary, LLC in favor of the Collateral Agent for
the benefit of the Secured Parties; (vii) agree that they will not seek, without
ANP's consent, to replace ANP as the Manager of TWEAN Subsidiary, LLC; and
(viii) acknowledge and confirm that TWEAN Subsidiary, LLC is and, at all times
that it shall own TWEAN Subsidiary, LLC, will continue to be an Unrestricted
Subsidiary as defined in the Credit Agreement dated as of July 8, 2002, as
amended, among AOL Time Warner Inc., TWE, TWEAN, AOL Time Warner Finance
Ireland, the lenders from time to time party thereto, JPMorgan Chase Bank, as
administrative agent, Bank of America, N.A. and Citibank, N.A., as
Co-Syndication Agents, and ABN AMRO Bank, N.V. and BNP Paribas, as
Co-Documentation Agents, or any successor facility of AOL Time Warner Inc., as
such facility may be amended, restated, supplemented or otherwise modified from
time to time and will not be subjected to any financial or other restrictive
covenant under any such successor facility or other similar agreement governing
indebtedness of AOL Time Warner or its subsidiaries.
(b) The Initial Borrower and ANP hereby consent to the
foregoing arrangements and agree (i) that TWEAN, TWE and Paragon may
conclusively rely on any notice or information received from the Collateral
Agent as to the existence of an Event of Default under the Credit Agreement or
the Senior Note Purchase Agreement, the right of the Collateral Agent or the
Secured Parties to exercise remedies under the Credit Agreement, the Senior Note
Purchase Agreement or the Guarantee and Collateral Agreement or any related
matters, and (ii) that none of TWEAN, TWE or Paragon shall have any liability to
the Initial Borrower or ANP for acting in accordance with any notice or
information received from the Collateral Agent or, after any Foreclosure, any
successor or assign of the Collateral Agent or for performing its obligations
under and carrying out the provisions of this Consent. Nothing in this Consent
shall constitute a waiver by any of TWEAN, TWE or Paragon of any rights which it
may have against the Initial Borrower or ANP or any of their respective
successors or assigns for damages for breach of the provisions of the
Restructuring Agreements.
(c) ANP hereby represents, warrants and covenants to TWEAN,
TWE and Paragon that ANP is, and after giving effect to the Credit Agreement and
the Senior Note
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Purchase Agreement will continue to be, in compliance with Section 3.2(e) of the
TWEAN Partnership Agreement.
SECTION 3. NO OTHER CONSENTS OR WAIVERS. Except as expressly
set forth herein, this Consent shall not by implication or otherwise limit,
impair, constitute a waiver of or otherwise affect the rights and remedies of
any party under any of the Restructuring Agreements, or alter, modify, amend or
in any way affect any of the terms, conditions, obligations, covenants or
agreements contained in any of the Restructuring Agreements, all of which are
ratified and affirmed in all respects and shall continue in full force and
effect until terminated in accordance with their terms.
SECTION 4. COUNTERPARTS; AMENDMENTS, WAIVERS. This Consent may
be executed in any number of counterparts, each of which shall constitute an
original, but all of which when taken together shall constitute but one
contract. Delivery of an executed counterpart of a signature page of this
Consent by facsimile transmission shall be as effective as delivery of a
manually executed counterpart of this Consent. Neither this Consent nor any of
the terms hereof may be terminated, amended, supplemented, modified or waived
except by an instrument in writing signed by each of TWEAN, TWE, Paragon, ANP,
the Initial Borrower and the Collateral Agent.
SECTION 5. APPLICABLE LAW. THIS CONSENT SHALL BE CONSTRUED IN
ACCORDANCE WITH AND GOVERNED BY THE LAW OF THE STATE OF NEW YORK.
SECTION 6. SUCCESSORS AND ASSIGNS. This Consent shall be
binding upon and inure to the benefit of TWEAN, TWE, Paragon, ANP, the Initial
Borrower, the Secured Parties and their respective successors and assigns.
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IN WITNESS WHEREOF, the parties hereto have caused this
Consent to be duly executed by their duly authorized officers, all as of the
date first above written.
TIME WARNER ENTERTAINMENT-ADVANCE
NEWHOUSE PARTNERSHIP,
by TIME WARNER ENTERTAINMENT
COMPANY, L.P., a general partner
by /s/ Robert D. Marcus
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Name: Robert D. Marcus
Title: Senior Vice President
by PARAGON COMMUNICATIONS,
by KBL COMMUNICATIONS, INC.,
its managing general partner,
by /s/ Robert D. Marcus
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Name: Robert D. Marcus
Title: Senior Vice President
by ADVANCE/NEWHOUSE PARTNERSHIP, a
general partner,
by ADVANCE CABLE HOLDINGS
CORP., its general partner,
by /s/ Steven A. Miron
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Name: Steven A. Miron
Title: President
by NEWHOUSE CABLE HOLDINGS
LLC, its general partner,
by /s/ Steven A. Miron
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Name: Steven A. Miron
Title: President
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TIME WARNER ENTERTAINMENT
COMPANY, L.P.,
by /s/ Robert D. Marcus
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Name: Robert D. Marcus
Title: Senior Vice President
PARAGON COMMUNICATIONS,
by KBL COMMUNICATIONS, INC., its
managing general partner,
by /s/ Robert D. Marcus
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Name: Robert D. Marcus
Title: Senior Vice President
ADVANCE/NEWHOUSE PARTNERSHIP,
by ADVANCE CABLE HOLDINGS
CORP., its general partner,
by /s/ Steven A. Miron
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Name: Steven A. Miron
Title: President
TWEAN SUBSIDIARY, LLC,
By ADVANCE/NEWHOUSE
PARTNERSHIP, its manager,
by ADVANCE CABLE HOLDINGS
CORP., its managing partner,
by /s/ Steven A. Miron
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Name: Steven A. Miron
Title: President
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JPMORGAN CHASE BANK, as Collateral Agent,
on its own behalf and on behalf of the
other Secured Parties,
by /s/ Thomas H. Koziark
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Name: Thomas H. Koziark
Title: Vice President