EXHIBIT: 10.16
FIRST AMENDMENT
AOL TIME WARNER FIVE-YEAR CREDIT AGREEMENT
DATED AS OF JULY 8, 2002
FIRST AMENDMENT, dated as of March 31, 2003 (this
"Amendment"), to the FIVE-YEAR CREDIT AGREEMENT (the "Agreement"), dated as of
July 8, 2002, among AOL TIME WARNER INC., a Delaware corporation ("AOLTW"), Time
Warner Entertainment Company, L.P., a Delaware limited partnership ("TWE"), Time
Warner Entertainment-Advance/▇▇▇▇▇▇▇▇ Partnership, a New York general
partnership ("TWEAN"), AOL TIME WARNER FINANCE IRELAND, a corporation of the
Republic of Ireland ("AOLTWFI"); together with AOLTW, TWE and TWEAN, the
"Borrowers"), the several banks and other financial institutions from time to
time parties to the Agreement (the "Lenders"), ABN AMRO BANK N.V. and BNP
PARIBAS, as co-documentation agents, BANK OF AMERICA, N.A. and CITIBANK, N.A.,
as co-syndication agents, and JPMORGAN CHASE BANK, as administrative agent (in
such capacity, the "Administrative Agent").
W I T N E S S E T H :
WHEREAS, pursuant to the Agreement, the Lenders have agreed to
make, and have made, certain loans and extensions of credit to the Borrowers;
and
WHEREAS, the Borrowers have requested that the Administrative
Agent and the Lenders enter into this Amendment.
NOW, THEREFORE, in consideration of the premises and of the
mutual agreements herein contained, the parties hereto hereby agree as follows:
I. Definitions. Unless otherwise defined herein, terms
defined in the Agreement shall be used as so defined.
II. Amendments to Section 1.01. Section 1.01 of the
Agreement is hereby amended:
(a) by deleting the definitions of "Consolidated Net Worth"
and "364-Day Credit Agreement" contained therein in their respective entireties.
(b) by deleting the following defined terms contained therein
in their respective entireties and inserting in lieu thereof the following new
definitions:
"'Commitment Utilization Percentage' means on any day the
percentage equivalent to a fraction (a) the numerator of which
is the sum of the aggregate outstanding Revolving Credit
Exposure of the Lenders under the Facilities (as modified or
replaced from time to time) then in effect in the aggregate
and (b) the denominator of which is the sum of the aggregate
amount of the Commitments of the Lenders then in effect under
the Facilities (as modified or replaced from time to time)
then in effect in
the aggregate; provided that on any day subsequent to (i) the
Initial Maturity Date (under and as defined in the AOLTW
364-Day Credit Agreement) if a Term Out Notice has been
delivered pursuant to Section 2.09(f) of the AOLTW 364-Day
Credit Agreement, the aggregate amount of the Commitments of
the Lenders under the AOLTW 364-Day Credit Agreement for
purposes of this definition shall be the aggregate amount of
the outstanding Revolving Credit Exposure of the Lenders
thereunder and (ii) the Initial Maturity Date (under and as
defined in the TWC 364-Day Credit Agreement) if a Term Out
Notice has been delivered pursuant to Section 2.09(f) of the
TWC 364-Day Credit Agreement, the aggregate amount of the
Commitments of the Lenders under the TWC 364-Day Credit
Agreement for purposes of this definition shall be the
aggregate amount of the outstanding Revolving Credit Exposure
of the Lenders thereunder."
"Facilities" means the credit facilities extended pursuant to
this Agreement, the AOLTW 364-Day Credit Agreement and the TWC
364-Day Credit Agreement."
(c) by deleting from the definition of "Film Financings" the
words "other than to a Subsidiary of TWE or TBS" and inserting in lieu thereof
the words "other than to a Subsidiary of Warner Communications Inc. or TBS".
(d) by adding the following new definitions in the appropriate
alphabetical order:
"'AOLTW 364-Day Credit Agreement' means the Amended and
Restated 364-Day Credit Agreement, dated the date hereof and
amended and restated as of March 31, 2003, among AOLTW,
AOLTWFI, the lenders referred to therein, Bank of America,
N.A. and Citibank, N.A., as Co-Syndication Agents, ABN AMRO
Bank N.V. and BNP Paribas, as Co-Documentation Agents, and
JPMorgan Chase Bank, as Administrative Agent, as amended,
supplemented or otherwise modified from time to time."
"'Consolidated Interest Coverage Ratio' means, for any period
for any Person, the ratio of (a) Consolidated EBITDA of such
Person and its Restricted Subsidiaries for such period to (b)
Consolidated Interest Expense for such Person and its
Restricted Subsidiaries for such period."
"'Consolidated Interest Expense' means, for any period for any
Person, total cash interest expense (including that
attributable to Capital Lease Obligations) of such Person and
its Restricted Subsidiaries for such period with respect to
all outstanding Indebtedness of such Person 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."
"'TWC 364-Day Credit Agreement' means the Amended and Restated
364-
2
Day Credit Agreement, dated the date hereof and amended and
restated as of March 31, 2003, among Time Warner Cable, Inc.,
TWE, the lenders referred to therein, Bank of America, N.A.
and Citibank, N.A., as Co-Syndication Agents, ABN AMRO Bank
N.V. and BNP Paribas, as Co-Documentation Agents, and JPMorgan
Chase Bank, as Administrative Agent, as amended, supplemented
or otherwise modified from time to time."
III. Amendment to Article II. Article II of the Agreement
is hereby amended by deleting Section 2.21 in its entirety and inserting the
following new Section 2.21 in lieu thereof:
"Section 2.21 Termination of Certain Borrowers. AOLTW may
elect by written notice to the Administrative Agent to
terminate the status of TWE or TWEAN as a Borrower under any
Facility; provided that at the time of such election TWE or
TWEAN, as the case may be, is not obligated in respect of any
outstanding Loans (including, without limitation, any
Swingline Loans) or any Letters of Credit under such Facility.
Upon the receipt by the Administrative Agent of such notice of
termination, AOLTW may designate such terminated Borrower as
an Unrestricted Subsidiary in accordance with the requirements
set forth in Section 6.08. Upon the termination of TWE or
TWEAN, as the case may be, as a Borrower hereunder pursuant to
this Section, any Guarantees of the Obligations of such
Borrower shall terminate without any further action."
IV. Amendment to Section 6.01. Section 6.01 of the
Agreement is hereby amended by deleting paragraph (b) thereof in its entirety
and inserting the following new paragraph (b) in lieu thereof:
"(b) The Consolidated Interest Coverage Ratio for AOLTW and
its Restricted Subsidiaries for any period of four consecutive
fiscal quarters of AOLTW will not be less than 2.00 to 1.00."
V. Conditions to Effectiveness. (a) This Amendment shall
become effective on the date upon which the Administrative Agent shall have
received this Amendment, duly executed and delivered by each Borrower, each
Guarantor party to the Primary Guarantee and the Required Lenders, and (b) the
Required Lenders (under and as defined in the 364-Day Credit Facility) shall
have consented to the execution and delivery by the Administrative Agent of the
AOLTW 364-Day Credit Agreement (as defined herein) and the TWC 364-Day Credit
Agreement (as defined herein) and the same shall be in full force and effect.
VI. Representations and Warranties. The Borrowers
represent and warrant to each Lender that: (a) the representations and
warranties made by the Borrowers and the other Credit Parties in or pursuant to
the Credit Documents are true and correct in all material respects on and as of
the date hereof (except to the extent that such representations and warranties
are expressly made only as of an earlier date, in which case such
representations and warranties shall have been true and correct in all material
respects on and as of such earlier date) and all references to the Agreement
therein shall be deemed to include the Agreement as amended by this Amendment,
and (b) after giving effect to the
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amendments contained herein, no Default or Event of Default has occurred and is
continuing.
VII. Continuing Effect. Except as expressly amended
hereby, the Agreement and the other Credit Documents shall continue to be and
shall remain in full force and effect in accordance with their terms. Except as
expressly set forth herein, this Amendment shall not by implication or otherwise
limit, impair, constitute a waiver of, or otherwise affect the rights and
remedies of the Lenders under the Agreement or any other Credit Document, and
shall not alter, modify, amend or in any way affect any of the terms,
conditions, obligations, covenants or agreements contained in the Agreement or
any other Credit Document.
VIII. GOVERNING LAW. THIS AMENDMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH AND GOVERNED BY THE LAW OF THE STATE OF NEW YORK.
XI. Counterparts. This Amendment 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. Delivery of an executed counterpart of a
signature page to this Amendment by telecopy shall be effective as delivery of a
manually executed counterpart of this Amendment.
X. Termination of Borrowers. Upon effectiveness of this
Amendment in accordance with paragraph II hereof, AOLTW hereby (a) notifies the
Administrative Agent of its election to terminate the status of TWE and TWEAN as
Borrowers under the Agreement and (b) confirms that neither TWE or TWEAN, as the
case may be, is obligated in respect of any outstanding Loans (including,
without limitation, any Swingline Loans) or any Letters of Credit under the
Agreement.
[Remainder of Page Intentionally Left Blank]
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IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be executed by their respective officers thereunto duly authorized,
as of the date first above written.
AOL TIME WARNER INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President & Treasurer
TIME WARNER ENTERTAINMENT
COMPANY, L.P.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President & Treasurer
TIME WARNER ENTERTAINMENT -
ADVANCE/▇▇▇▇▇▇▇▇ PARTNERSHIP
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President & Treasurer
AOL Time Warner FINANCE IRELAND
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President & Treasurer
JPMORGAN CHASE BANK
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Title: Managing Director
BANK OF AMERICA, N.A.
By: /s/ ▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Managing Director
ABN AMRO BANK N.V.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Title: Group Vice President
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Title: Assistant Vice President
CITIBANK, N.A.
By: /s/ ▇▇▇▇▇ ▇▇▇▇-▇▇▇▇▇▇▇▇
------------------------
Name: ▇▇▇▇▇ ▇▇▇▇-▇▇▇▇▇▇▇▇
Title: Director
BNP PARIBAS
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Director
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
BANK ONE, NA
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Associate Director
BARCLAYS BANK PLC
By: /s/ L. ▇▇▇▇▇ ▇▇▇▇▇▇
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Name: L. ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Director
DEUTSCHE BANK AG, NEW YORK BRANCH
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Director
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Vice President
THE ROYAL BANK OF SCOTLAND PLC
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Senior Vice President
WESTLB AG, NEW YORK BRANCH
(formerly known as Westdeutsche Landesbank
Girozentrale)
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Director
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Executive Director
THE BANK OF NOVA SCOTIA
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, ▇▇.
-------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, ▇▇.
Title: Authorized Signatory
DRESDNER BANK AG, NEW YORK &
GRAND CAYMAN BRANCHES
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By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Vice President
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
FLEET NATIONAL BANK
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Director
HSBC BANK USA
By: /s/ ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
MIZUHO CORPORATE BANK, LTD.
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ Venture
Title: Senior Vice President
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ BANK
By: /s/ Jaap L. Tonckens
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Name: Jaap ▇. ▇▇▇▇▇▇▇
Title: Vice President
THE BANK OF TOKYO-MITSUBISHI,
LTD., NY BRANCH
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Authorized Signatory
BEAR ▇▇▇▇▇▇▇ CORPORATE LENDING
INC.
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By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇▇
Title: Authorized Signatory
COMMERZBANK AG, NEW YORK AND
GRAND CAYMAN BRANCHES
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
--------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
Title: Senior Vice President
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Assistant Vice President
▇▇▇▇▇▇▇ ▇▇▇▇▇ BANK USA
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇▇▇▇▇
Title: Vice President
▇▇▇▇▇▇ COMMERCIAL PAPER INC.
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: Authorized Signatory
SOCIETE GENERALE
By: /s/ ▇▇▇▇ ▇▇▇▇▇
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Name: ▇▇▇▇ ▇▇▇▇▇
Title: Managing Director
MELLON BANK, NA
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, ▇▇.
-----------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, ▇▇.
Title: Lending Officer
LLYODS TSB BANK PLC
By: /s/ Windsor ▇. ▇▇▇▇▇▇
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Name: Windsor ▇. ▇▇▇▇▇▇
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Title: Director
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
NATIONAL AUSTRALIA BANK
A.C.N. 004044937
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Head, TMT - Americas
NORDDEUTSCHE LANESBANK
GIROZENTRALE NEW YORK AND/OR
CAYMAN ISLANDS BRANCH
By: /s/ ▇▇▇▇▇ ▇▇▇▇
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Name: ▇▇▇▇▇ ▇▇▇▇
Title: Vice President
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
SUMITOMO MITSUI BANKING
CORPORATION
By: /s/ ▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Senior Vice President
THE BANK OF NEW YORK
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Senior Vice President
BoS (USA) INC.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: First Vice President
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UFJ BANK LIMITED
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇
Title: Vice President
CREDIT LYONNAIS NEW YORK
BRANCH
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Vice President
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ACKNOWLEDGMENT AND CONSENT
Each of the undersigned parties to the Primary Guarantee,
dated as of July 8, 2002 and as amended, supplemented or otherwise modified from
time to time, made by the undersigned in favor of JPMorgan Chase Bank, as
Administrative Agent, for the benefit of the Lenders, hereby (a) consents to the
transactions contemplated by the foregoing Amendment to the Agreement and (b)
acknowledges and agrees that the guarantee of such party contained in the
Primary Guarantee is, and shall remain, in full force and effect after giving
effect to such Amendment and all prior modifications to the Agreement.
AOL TIME WARNER INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President & Treasurer
AMERICA ONLINE, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President & Treasurer
TIME WARNER INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President & Treasurer
▇▇▇▇▇▇ BROADCASTING SYSTEMS,
INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President & Treasurer
TIME WARNER COMPANIES, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President & Treasurer
