FIRST AMENDMENT AGREEMENT
EXHIBIT
10.4
EXECUTION COPY
This First Amendment Agreement (this “Agreement”) is entered into as of March 11,
2009, by and among Xxxxxx Commercial Paper Inc., a debtor and debtor in possession under chapter 11
of the Bankruptcy Code (as defined below) (the “Exiting Lender”), the Lenders party hereto,
Citibank, N.A., in its capacity as the Administrative Agent under the Credit Agreement referred to
below, Time Warner Inc. (“Time Warner”) and Time Warner International Finance Limited
(together with Time Warner, the “Borrowers”). Defined terms in the Credit Agreement
referred to below have the same meanings where used herein, unless otherwise defined.
RECITALS
WHEREAS, the Borrowers, the Administrative Agent, the Lenders party thereto (including the
Exiting Lender) and certain other parties thereto have entered into the Amended and Restated Credit
Agreement dated as of July 8, 2002, as amended and restated as of February 17, 2006 (as amended,
restated, supplemented or otherwise modified, the “Credit Agreement”);
WHEREAS, on October 5, 2008, the Exiting Lender commenced a voluntary case under chapter 11 of
title 11 of the United States Code (the “Bankruptcy Code”) and on such date, pursuant to
section 362(a) of the Bankruptcy Code, an automatic stay went into effect that prohibits actions to
interfere with, or obtain possession or control of, the Exiting Lender’s property or to collect or
recover from the Exiting Lender any debts or claims that arose before such date;
WHEREAS, the Borrowers and the Exiting Lender have agreed to terminate the Exiting Lender’s
Commitment and have requested that the Administrative Agent and the other Lenders agree to certain
amendments to the Credit Agreement in connection therewith; and
WHEREAS, the Administrative Agent and the Lenders party hereto, constituting at least the
Required Lenders, have agreed to such termination and such requested amendments, subject to the
terms and conditions of this Agreement;
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which
hereby are acknowledged, the parties hereto hereby agree as follows:
1. Commitment Termination; Related Adjustments.
(a) Notwithstanding anything to the contrary in Section 2.08 of the Credit Agreement,
on the First Amendment Effective Date (as defined below) the Commitment of the Exiting
Lender, whether used or unused, shall be reduced to zero ($0.00) (the “Commitment
Termination”), without any increase or decrease in the Commitment (or, if applicable,
the Yen Commitment) of any other Lender and without any obligation on the part of the
Borrowers to prepay, in connection therewith, the Specified Xxxxxx Loans (as defined
below). From and after the First Amendment Effective Date, the Exiting Lender shall
have no further obligation to fund any amount or extend any credit under the Credit
Documents.
(b) Immediately following the Commitment Termination, (i) the Applicable Percentage of
the Exiting Lender shall automatically be reduced to zero percent (0%), and the Applicable
Percentage of each other Lender shall automatically be increased ratably such that the sum
of the Applicable Percentages of Lenders other than the Exiting Lender shall total one
hundred percent (100%) and (ii) the Yen Exposure, the LC Exposure and the Swingline Exposure
of the Exiting Lender shall automatically be reduced to zero ($0.00), and the Yen Exposure,
the LC Exposure and the Swingline Exposure of each other Lender shall automatically be
increased to give effect to the increase in the Applicable Percentage of such Lender.
(c) Revolving Loans of the Exiting Lender outstanding on the First Amendment Effective
Date (such Revolving Loans, whether held by the Exiting Lender or any assignee thereof,
being referred to as the “Specified Xxxxxx Loans”) shall, notwithstanding the
Commitment Termination, continue to constitute “Revolving Loans” and “Loans” that are part
of one or more applicable “Borrowings” for all purposes of the Credit Agreement and the
Guarantee, and shall be due and payable, and shall bear interest, as specified in the Credit
Agreement; provided, however, that any portion of the Specified Xxxxxx Loans
that is repaid or prepaid, whether on account of any mandatory or voluntary prepayment or
otherwise, may not be reborrowed. For the avoidance of doubt, any prepayment of a Revolving
Borrowing made pursuant to the Credit Agreement shall be applied to the Specified Xxxxxx
Loans included therein, if any, ratably.
(d) For purposes of Sections 2.01(a), 2.01(b), 2.04(a), 2.05(b), 2.08(a) and 2.19, the
total Revolving Credit Exposures shall be determined without giving regard to the
outstanding principal amount of the Specified Xxxxxx Loans.
2. Concerning Fees.
(a) The Exiting Lender shall be entitled to the Facility Fee, the Utilization Fee and
the Letter of Credit Fee accrued for its account through but excluding the First Amendment
Effective Date, which fees shall be payable to the Exiting Lender as provided in the Credit
Agreement.
(b) Notwithstanding anything to the contrary in the Credit Agreement, from and after
the First Amendment Effective Date the Exiting Lender shall not be entitled to any
Utilization Fee.
(c) For the avoidance of doubt, (i) the Exiting Lender, and any assignee thereof that
shall hold any Specified Xxxxxx Loans, shall be entitled to the Facility Fee in respect of
its Revolving Credit Exposure consisting of the outstanding principal amount of such
Specified Xxxxxx Loans as provided in Section 2.11(a) of the Credit Agreement and (ii) from
and after the First Amendment Effective Date, the Exiting Lender shall not be entitled to
any Letter of Credit Fee.
3. Certain Other Amendments.
(a) Section 1.01 of the Credit Agreement is hereby amended to add the following defined
terms in the appropriate alphabetical order:
“First Amendment Agreement” means the First Amendment Agreement dated
as of March 11, 2009, by and among Xxxxxx Commercial Paper Inc., a debtor and debtor
in possession under chapter 11 of the Bankruptcy Code, the Borrowers, the
Administrative Agent and the other Lenders party thereto.
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“Specified Xxxxxx Loans” has the meaning set forth in the First
Amendment Agreement.
(b) Section 9.04(c) of the Credit Agreement is hereby amended to revise the first
sentence thereof in its entirety as follows:
“The Administrative Agent, acting for this purpose as an agent of the Borrowers,
shall maintain at one of its offices in The City of New York a copy of each
Assignment and Acceptance delivered to it and a register for the recordation of the
names and addresses of the Lenders, and the Commitment of, and principal amount of
the Loans (identifying whether any such Loans are Specified Xxxxxx Loans) and LC
Disbursements owing to, each Lender pursuant to the terms hereof from time to time
(the “Register”).”
4. Certain Confirmations and Agreements.
(a) The parties hereto hereby confirm that the Exiting Lender and, where applicable,
its Related Parties shall continue to be entitled to the benefits of Section 2.14 (Increased
Costs), Section 2.15 (Break Funding Payments), Section 2.16 (Taxes) and Section 9.03
(Expenses; Indemnity; Damage Waiver) of the Credit Agreement in accordance with the terms
thereof. The parties hereto further confirm that, for purposes of the definition of the
term “Required Lenders”, neither the Exiting Lender, nor any assignee thereof, shall be
deemed to have a Commitment solely as a result of holding any Specified Xxxxxx Loans.
(b) The Exiting Lender hereby agrees that, following the Commitment Termination, it
shall not acquire any Commitment under the Credit Agreement without the prior written
consent of Time Warner and the Administrative Agent.
(c) The parties hereto hereby confirm that the Exiting Lender shall be entitled to
assign its Revolving Loans in accordance with Section 9.04 (Successors and Assigns) of the
Credit Agreement without any reinstatement of its Commitment.
5. Representations and Warranties.
(a) The Exiting Lender hereby represents and warrants that it is legally authorized to
enter into this Agreement, and this Agreement has been duly executed and delivered by the
Exiting Lender and constitutes its legal, valid and binding obligation, enforceable in
accordance with its terms.
(b) Each of the Borrowers hereby represents and warrants that (i) it is legally
authorized to enter into this Agreement, and this Agreement has been duly executed and
delivered by such Borrower and constitutes its legal, valid and binding obligation,
enforceable
in accordance with its terms, (ii) as of the date hereof, no Default or Event of
Default has occurred and is continuing and (iii) the representations and warranties set
forth in Article III of the Credit Agreement (other than those set forth in Sections
3.04(c), 3.06 and 3.10) and in the other Credit Documents are true and correct in all
material respects on and as of the date hereof, with the same effect as though made on and
as of the date hereof, except to the extent such representations and warranties expressly
relate to an earlier date, in which case such representations and warranties were true and
correct in all material respects as of such earlier date.
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6. Conditions Precedent to Effectiveness. This Agreement shall become effective as of
the date set forth above (the “First Amendment Effective Date”) on the date on which:
(a) the Administrative Agent (or its counsel) shall have received (i) a counterpart of
this Agreement signed on behalf of the Exiting Lender, each of the Borrowers and the Lenders
(other than the Exiting Lender) representing at least the Required Lenders or (ii) evidence
satisfactory to the Administrative Agent (which may include a facsimile transmission) that
each such party has signed a counterpart of this Agreement; and
(b) the Exiting Lender shall have received from the Borrowers payment, free and clear
of any recoupment or set-off, in immediately available funds, of all out-of-pocket costs and
expenses (including reasonable fees, charges and other disbursements of counsel) incurred by
the Exiting Lender in connection with this Agreement, to the extent such costs and expenses
have been invoiced at least two Business Days prior to the First Amendment Effective Date.
7. Costs and Expenses. The Borrowers shall reimburse the Exiting Lender for all
reasonable out-of-pocket costs and expenses incurred by the Exiting Lender in connection with any
actions taken by it pursuant to this Agreement.
8. Release. Each of the Borrowers hereby unconditionally and irrevocably waives all
claims, suits, debts, liens, losses, causes of action, demands, rights, damages or costs, or
expenses of any kind, character or nature whatsoever, known or unknown, fixed or contingent, which
any of them may have or claim to have against the Exiting Lender (in its capacity as a Lender) or
its agents, employees, officers, affiliates, directors, representatives, attorneys, successors and
assigns (collectively, the “Released Parties” and each individually, a “Released
Party”) to the extent arising out of or in connection with the Credit Documents, including,
without limitation, any failure to fund any amounts thereunder (collectively, the
“Claims”). Each of the Borrowers further agrees forever to refrain from commencing,
instituting or prosecuting any lawsuit, action or other proceeding against any Released Parties
with respect to any and all of the foregoing described waived, released, acquitted and discharged
Claims and from exercising any right of recoupment or setoff that it may have under a master
netting agreement or otherwise against any Released Party with respect to Obligations under the
Credit Documents. Each of the Released Parties shall be a third party beneficiary of this
Agreement.
9. Effect of Agreement. The parties hereto acknowledge that the Exiting Lender shall
have no obligation to provide any further financial accommodations to or for the benefit of the
Borrowers or any of their Affiliates pursuant to the Credit Documents.
10. Successors and Assigns. This Agreement shall inure to the benefit of and be
binding upon the successors and permitted assigns of the Exiting Lender, the Lenders and the
Borrowers.
11. Limitation. Each party hereto hereby agrees that this Agreement (a) does not
impose on the Exiting Lender affirmative obligations or indemnities not already existing as of the
date of its petition commencing its proceeding under chapter 11 of the Bankruptcy Code, and that
could give rise to administrative expense claims, and (b) is not inconsistent with the terms of the
Credit Agreement.
12. Counterparts. This Agreement may be executed in one or more counterparts, each of
which shall be deemed to be an original, but all of which taken together shall be one and the same
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instrument. Delivery of an executed counterpart of a signature page of this Agreement by facsimile
shall be effective as delivery of a manually executed counterpart of this Agreement.
13. Severability. Any provision of this Agreement held to be invalid, illegal or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such invalidity, illegality or unenforceability without affecting the validity, legality and
enforceability of the remaining provisions hereof; and the invalidity of a particular provision in
a particular jurisdiction shall not invalidate such provision in any other jurisdiction.
14. Headings. The paragraph headings used in this Agreement are for convenience only
and shall not affect the interpretation of any of the provisions hereof.
15. Interpretation. This Agreement shall constitute a Credit Document for the
purposes of the Credit Agreement and the other Credit Documents.
16. Governing Law; Jurisdiction; Consent to Service of Process.
(a) This Agreement shall be construed in accordance with and governed by the law of the
State of New York.
(b) Each party to this Agreement hereby irrevocably and unconditionally submits, for
itself and its property, to the exclusive jurisdiction of the Supreme Court of the State of
New York sitting in New York County and of the United States District Court of the Southern
District of New York, and any appellate court from any thereof, in any action or proceeding
arising out of or relating to this Agreement, or for recognition or enforcement of any
judgment, and each of the parties hereto hereby irrevocably and unconditionally agrees that
all claims in respect of any such action or proceeding shall be heard and determined in such
New York State or, to the extent permitted by law, in such Federal court. Each of the
parties hereto agrees that a final judgment in any such action or proceeding shall be
conclusive and may be enforced in other jurisdictions by suit on the judgment or in any
other manner provided by law.
(c) Each party to this Agreement hereby irrevocably and unconditionally waives, to the
fullest extent it may legally and effectively do so, any objection which it may now or
hereafter have to the laying of venue of any suit, action or proceeding arising out of or
relating to this Agreement in any court referred to in paragraph (b) of this Section 16.
Each of the parties hereto hereby irrevocably waives, to the fullest extent permitted by
law, the defense of an inconvenient forum to the maintenance of such action or proceeding in
any such court.
(d) Each party to this Agreement irrevocably consents to service of process in the
manner provided for notices in Section 9.01 of the Credit Agreement. Nothing in this
Agreement will affect the right of any party to this Agreement to serve process in any other
manner permitted by law.
17. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES, TO THE FULLEST EXTENT
PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING
DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO
(A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF
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ANY OTHER PARTY HERETO HAS REPRESENTED,
EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO
ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN
INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS
IN THIS SECTION 17.
[Signature page follows]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of the
date first written above.
| XXXXXX COMMERCIAL PAPER, INC., as Exiting Lender |
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| By: | /s/ Xxxxx Xxxxxxxx | |||
| Name: | Xxxxx Xxxxxxxx | |||
| Title: | Authorized Signatory | |||
| TIME WARNER INC., as Borrower |
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| By: | /s/ Xxxxxx X. Xxxxxxxx | |||
| Name: | Xxxxxx X. Xxxxxxxx | |||
| Title: | Senior Vice President and Treasurer | |||
| Executed and Delivered as a Deed by: TIME WARNER INTERNATIONAL FINANCE LIMITED, as Borrower, acting by two directors |
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| By: | /s/ Xxxxxxx X. Xxxxxx | |||
| Name: | Xxxxxxx X. Xxxxxx | |||
| Title: | Director | |||
| By: | /s/ Xxxxxx Xxxxxx-Xxxxx | |||
| Name: | Xxxxxx Xxxxxx-Xxxxx | |||
| Title: | Director | |||
| CITIBANK, N.A., as Administrative Agent and a Lender |
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| By: | /s/ Xxxxxxx Xxx | |||
| Name: | Xxxxxxx Xxx | |||
| Title: | Vice President | |||
| By: | /s/ Xxxxxxx Xxx | |||
| Name: | Xxxxxxx Xxx | |||
| Title: | Vice President | |||
| X.X. Xxxxxx Xxxxx Bank, N.A. as Lender |
||||
| By: | /s/ Xxxx X. Xxxxxx | |||
| Name: | Xxxx X. Xxxxxx | |||
| Title: | Vice President | |||
| Bank of America, N.A., as Lender |
||||
| By: | /s/ Xxxx Xxxxxxx | |||
| Name: | Xxxx Xxxxxxx | |||
| Title: | Senior Vice President | |||
| The Bank of
Tokyo-Mitsubishi UFJ, Ltd., New York Branch, as Lender |
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| By: | /s/ Xxxx Xxxxxx | |||
| Name: | Xxxx Xxxxxx | |||
| Title: | Authorized Signatory | |||
| BNP Paribas, as Lender |
||||
| By: | /s/ Xxxxx Xxxxxx | |||
| Name: | Xxxxx Xxxxxx | |||
| Title: | Managing Director | |||
| By: | /s/ Xxxxx Bliznakova | |||
| Name: | Xxxxx Bliznakova | |||
| Title: | Vice President | |||
| DEUTSCHE BANK AG NEW YORK BRANCH as Co-Documentation Agent and as a Lender |
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| By: | /s/ Xxxx Xxxxxx | |||
| Name: | Xxxx Xxxxxx | |||
| Title: | Director | |||
| By: | /s/ Xxxxxx Xxxxxxx | |||
| Name: | Xxxxxx Xxxxxxx | |||
| Title: | Director | |||
| BARCLAYS BANK PLC as Lender |
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| By: | /s/ Xxxxx Xxxxxx | |||
| Name: | Xxxxx Xxxxxx | |||
| Title: | Director | |||
| Calyon New York Branch, as Lender |
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| By: | /s/ Pria Vrat | |||
| Name: | Pria Vrat | |||
| Title: | Director | |||
| By: | /s/ Mischa Zabotin | |||
| Name: | Mischa Zabotin | |||
| Title: | Managing Director | |||
| HSBC Bank USA, National Association as Lender |
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| By: | /s/ Xxxxxx X. Xxxxxx | |||
| Name: | Xxxxxx X. Xxxxxx | |||
| Title: | Senior Vice President | |||
| The Royal Bank of Scotland plc, as Lender |
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| By: | /s/ Xxxxxxx Xxxxxxxxxx | |||
| Name: | Xxxxxxx Xxxxxxxxxx | |||
| Title: | Managing Director | |||
| Sumitomo Mitsui Banking Corporation, as Lender |
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| By: | /s/ Xxxxxxxxx Xxxxxxxxx | |||
| Name: | Xxxxxxxxx Xxxxxxxxx | |||
| Title: | General Manager | |||
| Wachovia Bank N.A., as Lender |
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| By: | /s/ Xxx Xxxxxx | |||
| Name: | Xxx Xxxxxx | |||
| Title: | Director | |||
| ABN AMRO Bank N.V., as Lender |
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| By: | /s/ Xxxxx Xxxxxxxxxx | |||
| Name: | Xxxxx Xxxxxxxxxx | |||
| Title: | Director | |||
| By: | /s/ Xxxxxx Xxxx | |||
| Name: | Xxxxxx Xxxx | |||
| Title: | Assistant Vice President | |||
| THE BANK OF NOVA SCOTIA, as Lender |
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| By: | /s/ Xxxxx Xxxxxx | |||
| Name: | Xxxxx Xxxxxx | |||
| Title: | Managing Director | |||
| Dresdner Bank AG New York Branch, as Lender |
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| By: | /s/ Xxxxx Xxxxx | |||
| Name: | Xxxxx Xxxxx | |||
| Title: | Managing Director | |||
| By: | /s/ Xxxx XxXxxxxx | |||
| Name: | Xxxx XxXxxxxx | |||
| Title: | Vice President | |||
| MIZUHO CORPORATE BANK, LTD., as Lender |
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| By: | /s/ Xxxxxxx Xxxxxxx | |||
| Name: | Xxxxxxx Xxxxxxx | |||
| Title: | Deputy General Manager | |||
| THE BANK OF NEW YORK MELLON, as Lender |
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| By: | /s/ Xxxxxx X. Xxxxxxxxxx, Xx. | |||
| Name: | Xxxxxx X. Xxxxxxxxxx, Xx. | |||
| Title: | Vice President | |||
| CREDIT SUISSE, CAYMAN ISLANDS BRANCH as Lender |
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| By: | /s/ Xxxxxxx Xxxxx | |||
| Name: | Xxxxxxx Xxxxx | |||
| Title: | Vice President | |||
| By: | /s/ Xxxxxxxxxxx Reo Day | |||
| Name: | Xxxxxxxxxxx Reo Day | |||
| Title: | Associate | |||
| Fortis Bank SA/NV, New York Branch, as Lender |
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| By: | /s/ Xxxxxxx Xxxx | |||
| Name: | Xxxxxxx Xxxx | |||
| Title: | Managing Director & Group Head | |||
| By: | /s/ Xxxx Xxxxxxxx | |||
| Name: | Xxxx Xxxxxxxx | |||
| Title: | Managing Director | |||
| XXXXXX XXXXXXX BANK, N.A., as Lender |
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| By: | /s/ Xxxxxxx Xxxxx | |||
| Name: | Xxxxxxx Xxxxx | |||
| Title: | Authorized Signatory | |||
| XXXXXXX XXXXX BANK USA, as Lender |
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| By: | /s/ Xxxxx Xxxxx | |||
| Name: | Xxxxx Xxxxx | |||
| Title: | First Vice President | |||
| Lloyds TSB Bank plc, as Lender |
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| By: | /s/ Xxxxxxx Xxxxxxx | |||
| Name: | Xxxxxxx Xxxxxxx | |||
| Title: | Director, Corporate Banking – USA | |||
| By: | /s/ Xxxxxxx Xxxxxx | |||
| Name: | Xxxxxxx Xxxxxx | |||
| Title: | Managing Director, Corporate Banking – USA | |||
| Xxxxxxx Street Credit Corporation, as Lender |
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| By: | /s/ Xxxx Xxxxxx | |||
| Name: | Xxxx Xxxxxx | |||
| Title: | Assistant Vice President | |||
| Svenska Handelsbanken (publ) as Lender |
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| By: | /s/ Xxxx Xxxxxxxx | |||
| Name: | Xxxx Xxxxxxxx | |||
| Title: | Vice President | |||
| By: | /s/ Xxxxxxx Xxxxxxx | |||
| Name: | Xxxxxxx Xxxxxxx | |||
| Title: | Senior Vice President | |||
| Australia and New Zealand Banking Group Limited, as Lender |
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| By: | /s/ Xxxx X. Xxxx | |||
| Name: | Xxxx X. Xxxx | |||
| Title: | Deputy General Manager Head of Operations and Infrastructure |
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| XXXXXXX XXXXX CREDIT PARTNERS, L.P., as Lender |
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| By: | /s/ Xxxxxx Xxxxxx | |||
| Name: | Xxxxxx Xxxxxx | |||
| Title: | Authorized Signatory | |||
