First Amendment to AOL Time Warner Five-Year Credit Agreement (March 31, 2003)

Summary

This amendment updates the Five-Year Credit Agreement originally dated July 8, 2002, among AOL Time Warner Inc., its affiliates, and a group of lenders. The amendment revises certain definitions, allows for the removal of specific borrowers under certain conditions, and updates financial covenants, including a minimum interest coverage ratio. The changes become effective once all required parties sign the amendment and related agreements are in effect. The amendment ensures the agreement remains current with the parties' financial and operational needs.

EX-10.16 26 g81986exv10w16.txt EX-10.16 FIRST AMENDMENT 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/Newhouse 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 3 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] 4 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/ Raymond G. Murphy ----------------------- Name: Raymond G. Murphy Title: Vice President & Treasurer TIME WARNER ENTERTAINMENT COMPANY, L.P. By: /s/ Raymond G. Murphy ----------------------- Name: Raymond G. Murphy Title: Vice President & Treasurer TIME WARNER ENTERTAINMENT - ADVANCE/NEWHOUSE PARTNERSHIP By: /s/ Raymond G. Murphy ----------------------- Name: Raymond G. Murphy Title: Vice President & Treasurer AOL Time Warner FINANCE IRELAND By: /s/ Raymond G. Murphy ----------------------- Name: Raymond G. Murphy Title: Vice President & Treasurer JPMORGAN CHASE BANK By: /s/ Joan Fitzgibbon ----------------------- Name: Joan M. Fitzgibbon Title: Managing Director BANK OF AMERICA, N.A. By: /s/ James T Gilland ----------------------- Name: James T. Gilland Title: Managing Director ABN AMRO BANK N.V. By: /s/ David Carrington ----------------------- Name: David Carrington Title: Group Vice President By: /s/ Shilpa Parandekar ----------------------- Name: Shilpa Parandekar Title: Assistant Vice President CITIBANK, N.A. By: /s/ Julio Ojea-Quintana ------------------------ Name: Julio Ojea-Quintana Title: Director BNP PARIBAS By: /s/ Nuala Marley ----------------------- Name: Nuala Marley Title: Director By: /s/ Todd Rodgers ----------------------- Name: Todd Rodgers Title: Vice President BANK ONE, NA By: /s/ Jennifer L. Jones ----------------------- Name: Jennifer L. Jones Title: Associate Director BARCLAYS BANK PLC By: /s/ L. Peter Yetman ----------------------- Name: L. Peter Yetman Title: Director DEUTSCHE BANK AG, NEW YORK BRANCH By: /s/ Andreas Neumeier ----------------------- Name: Andreas Neumeier Title: Director By: /s/ Peter Eschmann ----------------------- Name: Peter Eschmann Title: Vice President THE ROYAL BANK OF SCOTLAND PLC By: /s/ David A. Lucas ----------------------- Name: David A. Lucas Title: Senior Vice President WESTLB AG, NEW YORK BRANCH (formerly known as Westdeutsche Landesbank Girozentrale) By: /s/ Lucie Guernsey ----------------------- Name: Lucie Guernsey Title: Director By: /s/ Richard Pearse ----------------------- Name: Richard Pearse Title: Executive Director THE BANK OF NOVA SCOTIA By: /s/ Vincent J. Fitzgerald, Jr. ------------------------------- Name: Vincent J. Fitzgerald, Jr. Title: Authorized Signatory DRESDNER BANK AG, NEW YORK & GRAND CAYMAN BRANCHES 7 By: /s/ Brian Haughney ----------------------- Name: Brian Haughney Title: Vice President By: /s/ William E. Lambert ----------------------- Name: William E. Lambert Title: Vice President FLEET NATIONAL BANK By: /s/ Patrick Bonebrake ----------------------- Name: Patrick Bonebrake Title: Director HSBC BANK USA By: /s/ Christopher J. Heusler --------------------------- Name: Christopher J. Heusler Title: Vice President MIZUHO CORPORATE BANK, LTD. By: /s/ Raymond Ventura ----------------------- Name: Raymond Venture Title: Senior Vice President MORGAN STANLEY BANK By: /s/ Jaap L. Tonckens ----------------------- Name: Jaap L. Tonkens Title: Vice President THE BANK OF TOKYO-MITSUBISHI, LTD., NY BRANCH By: /s/ Spencer Hughes ----------------------- Name: Spencer Hughes Title: Authorized Signatory BEAR STEARNS CORPORATE LENDING INC. 8 By: /s/ Victor F. Bulzacchelli --------------------------- Name: Victor F. Bulzacchelli Title: Authorized Signatory COMMERZBANK AG, NEW YORK AND GRAND CAYMAN BRANCHES By: /s/ Robert S. Taylor, Jr. -------------------------- Name: Robert S. Taylor, Jr. Title: Senior Vice President By: /s/ Andrew P. Lusk ----------------------- Name: Andrew P. Lusk Title: Assistant Vice President MERRILL LYNCH BANK USA By: /s/ Louis Alder ----------------------- Name: Louis Alder Title: Vice President LEHMAN COMMERCIAL PAPER INC. By: /s/ Suzanne Flynn ----------------------- Name: Suzanne Flynn Title: Authorized Signatory SOCIETE GENERALE By: /s/ Mark Vigil ----------------------- Name: Mark Vigil Title: Managing Director MELLON BANK, NA By: /s/ Thomas J. Tarasovich, Jr. ----------------------------- Name: Thomas J. Tarasovich, Jr. Title: Lending Officer LLYODS TSB BANK PLC By: /s/ Windsor R. Davies ----------------------- Name: Windsor R. Davies 9 Title: Director By: /s/ Richard M. Heath ----------------------- Name: Richard M. Heath Title: Vice President NATIONAL AUSTRALIA BANK A.C.N. 004044937 By: /s/ Eduardo Salazar ----------------------- Name: Eduardo Salazar Title: Head, TMT - Americas NORDDEUTSCHE LANESBANK GIROZENTRALE NEW YORK AND/OR CAYMAN ISLANDS BRANCH By: /s/ Josef Haas ----------------------- Name: Josef Haas Title: Vice President By: /s/ Stephanie Finnen ----------------------- Name: Stephanie Finnen Title: Vice President SUMITOMO MITSUI BANKING CORPORATION By: /s/ Leo E. Pagarigan ----------------------- Name: Leo E. Pagarigan Title: Senior Vice President THE BANK OF NEW YORK By: /s/ Geoffrey C. Brooks ----------------------- Name: Geoffrey C. Brooks Title: Senior Vice President BoS (USA) INC. By: /s/ Joseph Fratus ----------------------- Name: Joseph Fratus Title: First Vice President 10 UFJ BANK LIMITED By: /s/ Joseph E. Leo ----------------------- Name: Joseph E. Leo Title: Vice President CREDIT LYONNAIS NEW YORK BRANCH By: /s/ Patrick McCarthy ----------------------- Name: Patrick McCarthy Title: Vice President 11 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/ Raymond G. Murphy ----------------------- Name: Raymond G. Murphy Title: Vice President & Treasurer AMERICA ONLINE, INC. By: /s/ Raymond G. Murphy ----------------------- Name: Raymond G. Murphy Title: Vice President & Treasurer TIME WARNER INC. By: /s/ Raymond G. Murphy ----------------------- Name: Raymond G. Murphy Title: Vice President & Treasurer TURNER BROADCASTING SYSTEMS, INC. By: /s/ Raymond G. Murphy ----------------------- Name: Raymond G. Murphy Title: Vice President & Treasurer TIME WARNER COMPANIES, INC. By: /s/ Raymond G. Murphy ----------------------- Name: Raymond G. Murphy Title: Vice President & Treasurer