EXHIBIT 10.1
CONFORMED COPY
AMENDED AND RESTATED 364-DAY CREDIT AGREEMENT dated
as of June 28, 2002 (this "2002 Amendment and Restatement"),
among Xxx Communications, Inc., the banks party hereto (the
"Banks"), JPMorgan Chase Bank (the "Administrative Agent"),
as administrative agent and Bank of America, N.A. and
Wachovia Bank, National Association as syndication agents
(the "Syndication Agents").
A. On June 29, 2001, the Company, certain of the Banks and the
Administrative Agent entered into an Amended and Restated 364-Day Credit
Agreement in an aggregate principal amount of $1,500,000,000 (the "Credit
Agreement").
B. The parties hereto have agreed, subject to the terms and
conditions hereof, to amend and restate the Credit Agreement as set forth
herein on the terms and subject to the conditions provided herein.
C. Capitalized terms used and not otherwise defined herein shall
have the meanings assigned to such terms in the Credit Agreement.
SECTION 1. Amendment and Restatement. The Credit Agreement is
hereby amended and restated in the form of an Amended and Restated Credit
Agreement dated as of the date hereof, the terms of which shall be identical to
the terms of the Credit Agreement except as expressly provided in this Section.
(a) The Credit Agreement is hereby amended by replacing the
amount "$1,500,000,000" in the first sentence of the preamble with the amount
"$1,100,000,000".
(b) Amendment to Article I. Article I of the Credit Agreement is
hereby amended by:
(i) Amending the definition of the term "Consolidated Annualized
Operating Cash Flow" in its entirety, and substituting therefor the following:
"'Consolidated Annualized Operating Cash Flow' shall mean the sum of
(i) four times operating income of the Company and its Restricted Subsidiaries
for the most recently completed fiscal quarter (less cash dividends and other
cash distributions to the holders of minority interests in the Company's
Restricted Subsidiaries), before giving effect to depreciation, amortization,
equity in earnings (losses) of unconsolidated investees on a
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consolidated basis determined in accordance with GAAP and nonrecurring one-time
charges and (ii) cash dividends and cash distributions paid (other than
extraordinary distributions) to the Company and its Restricted Subsidiaries
during the most recently completed fiscal quarter and the three immediately
preceding fiscal quarters by unconsolidated investees of the Company and its
Restricted Subsidiaries, on a consolidated basis determined in accordance with
GAAP."
(ii) Amending the definition of the term "Conventional Loans" by
adding the text ", Federal Funds Rate Loans" immediately after the text
"Alternate Base Rate Loans".
(iii) Amending the definition of the term "Interest Period" by
adding the following clause immediately after clause (a), and relettering as
appropriate:
"(b) in the case of Federal Funds Rate Loans, ending not less
than one day nor more than 30 days thereafter;"
(iv) Amending the definition of the term "Chase" to read as
follows:
""JPMCB" shall mean JPMorgan Chase Bank, a New York banking
corporation having its principal offices located at 000 Xxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000"
and as so amended moving the definition to its proper alphabetical position.
Each reference in the Credit Agreement to the defined term "Chase" is amended
to refer to "JPMCB".
(v) Amending the definition of the term "Margin Percentage" by
inserting the text ", Federal Funds Borrowing Rate" immediately after the first
instance of the term "CD Rate", inserting the text ", Federal Funds Rate Loans"
immediately after the term "CD Rate Loans", and adding the text "Federal Funds
Borrowing Rate and" immediately above the term "CD" in the grid therein.
(vi) Deleting the definition of the term "Maturity Date" and
substituting therefor the following:
""Maturity Date" shall mean the Termination Date,
unless the Company shall give the notice of
extension contemplated by Section 2.01(i), in
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which case the Maturity Date shall mean June 28, 2005."
(vii) Deleting the definition of the term "Quarterly Date" and
substituting therefor the following:
""Quarterly Date" shall mean the last day of each March, June,
September and December, beginning with September 30, 2002, or if any
such date is not a Business Day, the respective Quarterly Date shall
be the next preceding Business Day."
(viii) Deleting the definition of the term "Termination Date" and
substituting therefor the following:
""Termination Date" shall mean June 27, 2003."
(ix) Adding in the appropriate alphabetical order the following
definitions:
"Applicable Percentage" shall mean, with respect to any Bank
at any time, the percentage of the aggregate amount of the Commitments
represented by such Bank's Commitment at such time.
"Federal Funds Rate Loans" shall mean those Loans which may
be made under this Agreement and which are described in Section
2.01(d)(iv) on which the Company shall pay interest at a rate based on
the Federal Funds Borrowing Rate.
"Issuing Bank" shall mean JPMCB and its successors in such
capacity as provided in Section 2.07(i). The Issuing Bank may, in its
discretion, arrange for one or more Letters of Credit to be issued by
Affiliates of the Issuing Bank, in which case the term "Issuing Bank"
shall include any such Affiliate executing this Agreement as Issuing
Bank, in its capacity as issuer of Letters of Credit hereunder.
"LC Disbursement" shall mean a payment made by the Issuing
Bank pursuant to a Letter of Credit.
"LC Exposure" shall mean, at any time, the sum of (a) the
aggregate undrawn amount of all outstanding Letters of Credit at such
time plus (b) the aggregate amount of all LC Disbursements that have
not yet been reimbursed by or on behalf of the Company at such time.
The LC Exposure of any Bank at any time shall be its
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Applicable Percentage of the total LC Exposure at such time.
"LC Participation Fees" shall have the meaning set forth in
Section 4.03.
"Letter of Credit" shall mean any letter of credit issued
pursuant to this Agreement.
"Related Parties" means, with respect to any specified
Person, such Person's Affiliates and the respective directors,
officers, employees, agents and advisors of such Person and such
Person's Affiliates.
(b) Amendment to Section 2.01(a). Section 2.01(a) is hereby
amended by deleting the text "exceed $1,500,000,000" and substituting therefor
the text "and Letters of Credit exceed $1,100,000,000", and by inserting the
text ", Federal Funds Rate Loans" immediately after the term "Alternate Base
Rate Loans" therein.
(c) Amendment to Exhibit 2.01(a). Exhibit 2.01(a) to the Credit
Agreement is hereby amended by deleting such Exhibit 2.01(a) and substituting
therefor Exhibit 2.01(a) hereto.
(d) Amendment to Section 2.01(b)(i). Section 2.01(b) is hereby
amended by inserting the text "Federal Funds Rate Loans or" immediately before
the first instance of the term "Alternate Base Rate Loans", replacing the text
"and the Alternate Base Rate" with the text "and the Federal Funds Rate or the
Alternate Base Rate, as the case may be," and inserting the text ", Federal
Funds Rate Loans" immediately after the term "CD Rate Loans" in subclause (x)
thereof.
(e) Amendment to Section 2.01(d). Section 2.01(d)is hereby
amended by adding the following clause immediately after clause (iii), and
renumbering the following clauses therein as appropriate:
(iv) Each Federal Funds Rate Loan shall be made in
Dollars and shall bear interest on the unpaid principal amount thereof
from time to time outstanding at a rate per annum (for the actual
number of days elapsed, based on a year of 360 days) which shall be
equal to the lesser of (A) the Federal Funds Borrowing Rate plus the
applicable Margin Percentage, or (B) the Highest Lawful Rate.
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Section 2.01(d) is further amended by adding at the end thereof the following
clause:
"(vii) Subject to the provisions of clause (vi) of this Section
2.01(d), following the Termination Date, each Loan shall bear interest at
a rate per annum equal to 0.25% per annum plus the rate otherwise
applicable to such Loan as provided in the preceding paragraphs of this
Section 2.01(d). Subject to clause (vi) of this Section 2.01(d), the
interest rate provided for under this paragraph shall at all times
following the Termination Date constitute the total interest applicable to
such Loan."
(f) Amendment to Section 2.01(e)(i). Section 2.01(e)(i) is hereby
amended by inserting the text "or Federal Funds Rate Loans" immediately after
each instance of the term "CD Rate Loans" and inserting the text "or a Federal
Funds Rate Loan" after the term "CD Rate Loan".
(g) Amendment to Section 2.01(h). Section 2.01(h) is hereby
amended by inserting the text "or Letter of Credit" after both instances of the
word "Loan".
(h) Amendment to Section 2.01(i). Section 2.01(i) is hereby
amended by deleting the text "June 29, 2005", and substituting therefor the
text "June 28, 2005".
(i) Amendment to Article II. Article II is hereby amended by
adding at the end thereof the following section:
SECTION 2.07. Letters of Credit. (a) General. Subject to the
terms and conditions set forth herein, the Company may request the
issuance of Letters of Credit for its own account, in a form
reasonably acceptable to the Administrative Agent and the Issuing
Bank, at any time and from time to time prior to the date five
Business Days prior to the Termination Date. In the event of any
inconsistency between the terms and conditions of this Agreement and
the terms and conditions of any form of letter of credit application
or other agreement submitted by the Company to, or entered into by the
Company with, any Issuing Bank relating to any Letter of Credit, the
terms and conditions of this Agreement shall control.
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(b) Notice of Issuance, Amendment, Renewal, Extension; Certain
Conditions. To request the issuance of a Letter of Credit (or the amendment,
renewal or extension of an outstanding Letter of Credit), the Company shall
hand deliver or telecopy (or transmit by electronic communication, if
arrangements for doing so have been approved by the Issuing Bank) to the
Issuing Bank and the Administrative Agent (reasonably in advance of the
requested date of issuance, amendment, renewal or extension) a notice
requesting the issuance of a Letter of Credit, or identifying the Letter of
Credit to be amended, renewed or extended, and specifying the date of issuance,
amendment, renewal or extension (which shall be a Business Day), the date on
which such Letter of Credit is to expire (which shall comply with paragraph (c)
of this Section), the amount of such Letter of Credit, the name and address of
the beneficiary thereof and such other information as shall be necessary to
prepare, amend, renew or extend such Letter of Credit. If requested by the
Issuing Bank, the Company also shall submit a letter of credit application on
the Issuing Bank's standard form in connection with any request for a Letter of
Credit. A Letter of Credit shall be issued, amended, renewed or extended only
if (and upon issuance, amendment, renewal or extension of each Letter of Credit
the Company shall be deemed to represent and warrant that), after giving effect
to such issuance, amendment, renewal or extension (i) the LC Exposure shall not
exceed $100,000,000 and (ii) the sum of (I) the outstanding aggregate principal
amount of all Loans and (II) the LC Exposure shall not exceed the aggregate
Commitments.
(c) Expiration Date. Each Letter of Credit shall expire at or
prior to the close of business on the date that is five Business Days prior to
the Termination Date.
(d) Participations. By the issuance of a Letter of Credit (or an
amendment to a Letter of Credit increasing the amount thereof) and without any
further action on the part of the Issuing Bank or the Banks, the Issuing Bank
hereby grants to each Bank, and each Bank hereby acquires from the Issuing
Bank, a participation in such Letter of Credit equal to such Bank's Applicable
Percentage of the aggregate amount available to be drawn under such Letter of
Credit. In consideration and in furtherance of the foregoing, each Bank hereby
absolutely and unconditionally agrees to pay to the Administrative Agent, for
the account of the
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Issuing Bank, such Bank's Applicable Percentage of each LC Disbursement made by
the Issuing Bank and not reimbursed by the Company on the date due as provided
in paragraph (e) of this Section, or of any reimbursement payment required to
be refunded to the Company for any reason. Each Bank acknowledges and agrees
that its obligation to acquire participations pursuant to this paragraph in
respect of Letters of Credit is absolute and unconditional and shall not be
affected by any circumstance whatsoever, including any amendment, renewal or
extension of any Letter of Credit or the occurrence and continuance of a
Default or reduction or termination of the Commitments, and that each such
payment shall be made without any offset, abatement, withholding or reduction
whatsoever.
(e) Reimbursement. If the Issuing Bank shall make any LC
Disbursement in respect of a Letter of Credit, the Company shall reimburse such
LC Disbursement by paying to the Administrative Agent an amount equal to such
LC Disbursement not later than 12:00 noon, New York City time, on the date that
such LC Disbursement is made, if the Company shall have received notice of such
LC Disbursement prior to 10:00 a.m., New York City time, on such date, or, if
such notice has not been received by the Company prior to such time on such
date, then not later than 12:00 noon, New York City time, on (i) the Business
Day that the Company receives such notice, if such notice is received prior to
10:00 a.m., New York City time, on the day of receipt, or (ii) the Business Day
immediately following the day that the Company receives such notice, if such
notice is not received prior to such time on the day of receipt; provided that,
if such LC Disbursement is not less than the minimum borrowing amount, the
Company may, subject to the conditions to borrowing set forth herein, request
that such payment be financed with an Alternate Base Rate Loan or Federal Funds
Rate Loan in an equivalent amount and, to the extent so financed, the Company's
obligation to make such payment shall be discharged and replaced by the
resulting Alternate Base Rate Loan or Federal Funds Rate Loan. If the Company
fails to make such payment when due, the Administrative Agent shall notify each
Bank of the applicable LC Disbursement, the payment then due from the Company
in respect thereof and such Bank's Applicable Percentage thereof. Promptly
following receipt of such notice, each Bank shall pay to the Administrative
Agent its Applicable Percentage of the LC Disbursement not reimbursed by the
Company,
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in the same manner as provided in Section 2.01 with respect to Loans made by
such Bank (and Section 2.01 shall apply, mutatis mutandis, to the payment
obligations of the Banks), and the Administrative Agent shall promptly pay to
the Issuing Bank the amounts so received by it from the Banks. Promptly
following receipt by the Administrative Agent of any payment from the Company
pursuant to this paragraph, the Administrative Agent shall distribute such
payment to the Issuing Bank or, to the extent that Banks have made payments
pursuant to this paragraph to reimburse the Issuing Bank, then to such Banks
and the Issuing Bank as their interests may appear. Any payment made by a Bank
pursuant to this paragraph to reimburse the Issuing Bank for any LC
Disbursement (other than the funding of Alternate Base Rate Loans or Federal
Funds Rate Loans as contemplated above) shall not constitute a Loan and shall
not relieve the Company of its obligation to reimburse such LC Disbursement.
(f) Obligations Absolute. The Company's obligation to reimburse
LC Disbursements as provided in paragraph (e) of this Section shall be
absolute, unconditional and irrevocable, and shall be performed strictly in
accordance with the terms of this Agreement under any and all circumstances
whatsoever and irrespective of (i) any lack of validity or enforceability of
any Letter of Credit or this Agreement, or any term or provision therein, (ii)
any draft or other document presented under a Letter of Credit proving to be
forged, fraudulent or invalid in any respect or any statement therein being
untrue or inaccurate in any respect, (iii) payment by the Issuing Bank under a
Letter of Credit against presentation of a draft or other document that does
not comply with the terms of such Letter of Credit, or (iv) any other event or
circumstance whatsoever, whether or not similar to any of the foregoing, that
might, but for the provisions of this Section, constitute a legal or equitable
discharge of, or provide a right of setoff against, the Company's obligations
hereunder. Neither the Administrative Agent, the Banks, the Issuing Bank, nor
any of their Related Parties, shall have any liability or responsibility by
reason of or in connection with the issuance or transfer of any Letter of
Credit or any payment or failure to make any payment thereunder (irrespective
of any of the circumstances referred to in the preceding sentence), or any
error, omission, interruption, loss or delay in transmission or delivery of any
draft, notice or other communication
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under or relating to any Letter of Credit (including any document required to
make a drawing thereunder), any error in interpretation of technical terms or
any consequence arising from causes beyond the control of the Issuing Bank;
provided that the foregoing shall not be construed to excuse the Issuing Bank
from liability to the Company to the extent of any direct damages (as opposed
to consequential damages, claims in respect of which are hereby waived by the
Company to the extent permitted by applicable law) suffered by the Company that
are caused by the Issuing Bank's failure to exercise care when determining
whether drafts and other documents presented under a Letter of Credit comply
with the terms thereof. The parties hereto expressly agree that, in the absence
of gross negligence or willful misconduct on the part of the Issuing Bank (as
finally determined by a court of competent jurisdiction), the Issuing Bank
shall be deemed to have exercised care in each such determination. In
furtherance of the foregoing and without limiting the generality thereof, the
parties agree that, with respect to documents presented which appear on their
face to be in substantial compliance with the terms of a Letter of Credit, the
Issuing Bank may, at its sole discretion, either accept and make payment upon
such documents without responsibility for further investigation, regardless of
any notice or information to the contrary, or refuse to accept and make payment
upon such documents if such documents are not in strict compliance with the
terms of such Letter of Credit.
(g) Disbursement Procedures. The Issuing Bank shall, promptly
following its receipt thereof, examine all documents purporting to represent a
demand for payment under a Letter of Credit. The Issuing Bank shall promptly
notify the Administrative Agent and the Company by telephone (confirmed by
telecopy) of such demand for payment and whether the Issuing Bank has made or
will make an LC Disbursement thereunder; provided that any failure to give or
delay in giving such notice shall not relieve the Company of its obligation to
reimburse the Issuing Bank and the Banks with respect to any such LC
Disbursement.
(h) Interim Interest. If the Issuing Bank shall make any LC
Disbursement, then, unless the Company shall reimburse such LC Disbursement in
full on the date such LC Disbursement is made, the unpaid amount thereof shall
bear interest, for each day from and including the date such LC Disbursement is
made to but
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excluding the date that the Company reimburses such LC Disbursement, at the
Default Rate. Interest accrued pursuant to this paragraph shall be for the
account of the Issuing Bank, except that interest accrued on and after the date
of payment by any Bank pursuant to paragraph (e) of this Section to reimburse
any Issuing Bank shall be for the account of such Bank to the extent of such
payment.
(i) Replacement of the Issuing Bank. The Issuing Bank may be
replaced at any time by written agreement among the Company, the Administrative
Agent, the Issuing Bank and the successor Issuing Bank. The Administrative
Agent shall notify the Banks of any such replacement of the Issuing Bank. At
the time any such replacement shall become effective, the Company shall pay all
unpaid fees accrued for the account of the replaced Issuing Bank. From and
after the effective date of any such replacement, (i) the successor Issuing
Bank shall have all the rights and obligations of the replaced Issuing Bank
under this Agreement with respect to Letters of Credit to be issued thereafter
and (ii) references herein to the term "Issuing Bank" shall be deemed to refer
to such successor or to any previous Issuing Bank, or to such successor and all
previous Issuing Banks, as the context shall require. After the replacement of
the Issuing Bank hereunder, the replaced Issuing Bank shall remain a party
hereto and shall continue to have all the rights and obligations of the Issuing
Bank under this Agreement with respect to Letters of Credit issued by it prior
to such replacement, but shall not be required to issue additional Letters of
Credit.
(j) Cash Collateralization. If any Event of Default shall occur
and be continuing, on the Business Day that the Company receives notice from
the Administrative Agent (or, if the maturity of the Loans has been
accelerated, Banks with LC Exposure representing greater than 50% of the total
LC Exposure) demanding the deposit of cash collateral pursuant to this
paragraph, the Company shall deposit in an account with the Administrative
Agent, in the name of the Administrative Agent and for the benefit of the
Banks, an amount in cash equal to the LC Exposure as of such date plus any
accrued and unpaid interest thereon; provided that the obligation to deposit
such cash collateral shall become effective immediately, and such deposit shall
become immediately due and payable, without demand or other notice of any kind,
upon the
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occurrence of any Event of Default with respect to the Company described in
Section 10.11 or 10.12. Such deposit shall be held by the Administrative Agent
as collateral for the payment and performance of the obligations of the Company
under this Agreement. The Administrative Agent shall have exclusive dominion
and control, including the exclusive right of withdrawal, over such account.
Other than any interest earned on the investment of such deposits, which
investments shall be made at the option and sole discretion of the
Administrative Agent and at the Company's risk and expense, such deposits shall
not bear interest. Interest or profits, if any, on such investments shall
accumulate in such account. Moneys in such account shall be applied by the
Administrative Agent to reimburse the Issuing Bank for LC Disbursements for
which it has not been reimbursed and, to the extent not so applied, shall be
held for the satisfaction of the reimbursement obligations of the Company for
the LC Exposure at such time or, if the maturity of the Loans has been
accelerated (but subject to the consent of Banks with LC Exposure representing
greater than 50% of the total LC Exposure), be applied to satisfy other
obligations of the Company under this Agreement. If the Company is required to
provide an amount of cash collateral hereunder as a result of the occurrence of
an Event of Default, such amount (to the extent not applied as aforesaid) shall
be returned to the Company within three Business Days after all Events of
Default have been cured or waived.
(k) Amendment to Article III. Article III is hereby amended by
inserting the text "Federal Funds Rate Loans or" immediately before each
instance of the term "Alternate Base Rate Loans" therein.
(l) Amendment to Section 4.01(a). Section 4.01(a) is hereby
amended by adding the following text at the end thereof:
"For purposes of computing Commitment Fees with respect to
Commitments, a Commitment of a Bank shall be deemed to be used to the
extent of the LC Exposure of such Bank."
(m) Amendment to Section 4.01(b). Section 4.01(b) is hereby
amended by adding the text "and LC Exposure" after each instance of the text
"Loans)", by replacing the percentage "50%" with the percentage "33 1/3%",
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and by replacing the percentage ".10%" with the percentage ".25%".
(n) Amendment to Section 4.02. Section 4.02 is hereby amended by
replacing the text "Discretionary Loans" with the text "LC Exposure,
Discretionary Loans".
(o) Amendment to Article IV. Article IV is hereby amended by
inserting at the end thereof the following section:
SECTION 4.03. LC Participation Fees. The Company agrees to
pay (i) to the Administrative Agent for the account of each Bank a
participation fee ("LC Participation Fee") with respect to its
participations in Letters of Credit, which shall accrue at the Margin
Percentage used to determine the interest rate applicable to
Eurodollar Loans on the average daily amount of such Bank's LC
Exposure (excluding any portion thereof attributable to unreimbursed
LC Disbursements) during the period from and including the Closing
Date to but excluding the later of the date on which such Bank's
Commitment terminates and the date on which such Bank ceases to have
any LC Exposure, and (ii) to the Issuing Bank a fronting fee, which
shall accrue at the rate or rates per annum separately agreed upon by
the Borrower and the Issuing Bank on the average daily stated amount
of the Letters of Credit issued by the Issuing Bank during the period
from and including the Closing Date to but excluding the later of the
date of termination of the Commitments and the date on which there
ceases to be any LC Exposure, as well as the Issuing Bank's standard
fees with respect to the issuance, amendment, renewal or extension of
any Letter of Credit or processing of drawings thereunder.
Participation fees and fronting fees accrued through and including the
last day of March, June, September and December of each year shall be
payable on the third Business Day following such last day, commencing
on the first such date to occur after the Closing Date; provided that
all such fees shall be payable on the date on which the Commitments
terminate and any such fees accruing after the date on which the
Commitments terminate shall be payable on demand. Any other fees
payable to the Issuing Bank pursuant to this paragraph shall be
payable within 10 days after demand. All participation fees and
fronting fees shall be computed on the basis of a year of 360 days and
shall be payable for the actual number of days elapsed (including the
first day but excluding the last day).
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(p) Amendment to Article V. Article V is hereby amended by adding
the following text at the end thereof:
"The Letters of Credit will be used for general
corporate purposes."
(q) Amendment to Exhibit 6.01. Exhibit 6.01 to the Credit
Agreement is hereby amended by deleting such Exhibit 6.01 and substituting
therefor Exhibit 6.01 hereto.
(r) Amendment to Section 6.02. Section 6.02 of the Credit
Agreement is hereby amended by:
(i) Deleting the first sentence thereof and substituting
therefor the following:
"The Company has furnished each Bank with the
consolidated financial statements for the Company and its
Subsidiaries as at and for its fiscal year ended December 31,
2001, accompanied by the opinion of Deloitte & Touche, and
quarterly consolidated financial statements as at and for the
period ended March 31, 2002."
(ii) Deleting "March 31, 2001" in the last sentence
thereof and substituting therefor "March 31, 2002".
(s) Amendment to Exhibit 6.03. Exhibit 6.03 of the Credit
Agreement is hereby amended by deleting such Exhibit 6.03 and substituting
therefor Exhibit 6.03 hereto.
(t) Amendment to Section 6.14. Section 6.14 is hereby amended by
deleting the date "September 2000", and substituting therefor the date "June
2002".
(u) Amendment to Exhibit 6.15. Exhibit 6.15 to the Credit
Agreement is hereby amended by deleting such Exhibit 6.15 and substituting
therefor Exhibit 6.15 hereto.
(v) Amendment to Section 7.02. Section 7.02 is hereby amended by
inserting the following text immediately following the ")" in the first
paragraph therein:
", and of the Issuing Bank to issue Letters of Credit,"
(w) Amendment to Section 7.04. Section 7.04 is hereby amended by
deleting the entire Section and substituting therefor the following:
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"Section 7.04. [Intentionally Omitted]".
(x) Amendment to Section 8.02. The final paragraph of Section
8.02 is hereby amended by deleting the third sentence thereof and substituting
therefor the following:
"Together with each delivery of financial statements required by
clause (a) above, the Company will deliver to each Bank a written statement of
said accountants that, in conducting the audit necessary to the issuance of an
opinion on such financial statements, nothing came to their attention that
caused them to believe that an Event of Default or Default relating to
financial and accounting matters (an "Accounting Event of Default or Default")
had occurred, or, if such accountants shall have obtained knowledge of any such
Accounting Event of Default or Default, such statement shall specify the nature
and period of existence thereof; provided that such accountants shall not be
liable directly or indirectly to any Bank for failure to obtain knowledge of
any such Accounting Event of Default or Default; and provided further that in
issuing such statement, such accountants shall not be required to go beyond
those auditing procedures conducted in connection with their issuance of the
opinion referred to above."
(y) Amendment to Exhibit 9.01(d). Exhibit 9.01(d) of the Credit
Agreement is hereby amended by deleting such Exhibit 9.01(d) and substituting
therefor Exhibit 9.01(d) hereto.
(z) Amendment to Article X. Article X is hereby amended by
inserting the following text immediately after both instances of the phrase "to
make Loans" in the first paragraph thereof:
"and of the Issuing Bank to issue Letters of Credit".
(aa) Amendment to Section 10.03. Section 10.03 is hereby amended
by inserting the following text at the end of clause (i) therein:
"provided that a default under other Debt of the Company or any
Restricted Subsidiary as described in this clause (i) shall not constitute an
Event of Default under this agreement unless (x) the Company or such Restricted
Subsidiary is aware of the default under such other Debt and, if no grace
period of at least 3 days is provided for under the other Debt, 3 days have
passed since the Company
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or Restricted Subsidiary became aware of such default, without the curing of
the default or (y) such other Debt has become due prior to the maturity
thereof; and provided further that, during the continuance of any applicable
grace period or such 3 day period, any such failure to pay such other Debt when
due shall constitute a Default (but not an Event of Default) hereunder;"
(bb) Amendment to Section 12.05. Section 12.05 is hereby amended
by inserting, immediately after the word "Commitment", the text ",
participations in Letters of Credit".
(cc) Amendment to Section 13.01. Section 13.01 is hereby amended
by replacing the "and" immediately preceding the third clause thereof with a
comma, and replacing the period immediately preceding the final sentence
thereof with the following text:
"and (iv) all reasonable out-of-pocket expenses incurred by
the applicable Issuing Bank in connection with the issuance,
amendment, renewal or extension of any Letter of Credit or any demand
for payment thereunder."
(dd) Amendment to Exhibit 13.02. Exhibit 13.02 of the Credit
Agreement is hereby amended by deleting such Exhibit 13.02 and substituting
therefor Exhibit 13.02 hereto.
(ee) Amendment to Section 13.04. Section 13.04 is hereby amended
by replacing the text "by a Bank hereunder" with the following text:
"or issuance of any Letter of Credit by the Issuing Bank
(including any refusal by the Issuing Bank to honor a demand for
payment under a Letter of Credit if the documents presented in
connection with such demand do not strictly comply with the terms of
such Letter of Credit) hereunder"
and by inserting after the word "Loans" the text "or Letters of Credit."
(ff) Amendment to Section 13.07(b). Section 13.07(b) is hereby
amended by adding immediately after the phrase "a portion of its Commitment",
the text "or participations in Letters of Credit".
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SECTION 2. Representations and Warranties. The Company hereby
represents and warrants to the Administrative Agent and the Banks that:
(a) This 2002 Amendment and Restatement has been duly authorized,
executed and delivered by it and constitutes its legal, valid and binding
obligations enforceable in accordance with its terms.
(b) As of the date hereof, and after giving effect to this 2002
Amendment and Restatement, no Default or Event of Default has occurred and is
continuing and the representations and warranties contained in the Credit
Agreement, as amended and restated by this 2002 Amendment and Restatement, are
true and correct in all material respects as if made on the date hereof.
SECTION 3. Effectiveness. The effectiveness of this 2002
Amendment and Restatement is subject to the satis- faction on the date hereof
of the following conditions:
(a) the Administrative Agent shall have received executed
counterparts of this 2002 Amendment and Restatement which, when taken together,
bear the signatures of each of the parties hereto;
(b) the Administrative Agent shall have received on behalf of the
Banks from Counsel for the Company their opinion dated the date hereof,
substantially in the form attached to the Credit Agreement as Exhibit 7.01(a);
(c) the Administrative Agent shall have received on behalf of the
Banks an Officer's Certificate dated the date hereof, substantially in the form
attached to the Credit Agreement as Exhibit 7.01(b);
(d) the Administrative Agent shall have received all fees and
other amounts payable in connection with this Agreement on or prior to the date
hereof, including to the extent invoiced, reimbursement or payment of all
out-of- pocket expenses required to be reimbursed or paid by the Company
hereunder; and
(e) on the date hereof, the Company shall have repaid, or shall
repay from the initial Loans hereunder, in full the principal of all Loans
outstanding and other amounts accrued and not yet paid under the Credit
Agreement, and the Company shall have effectively terminated all the
Commitments then outstanding in accordance with the Credit
17
Agreement and replaced them with the Commitments as set forth in Schedule
2.01(a) hereto.
Following the satisfaction on the date hereof of the conditions set
forth above, the Administrative Agent shall inform the Company in writing that
this 2002 Amendment and Restatement has become effective.
SECTION 4. Counterparts. This 2002 Amendment and Restatement may
be signed 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 by facsimile
transmission shall be effective as delivery of a manually executed counterpart
of this 2002 Amendment and Restatement.
SECTION 5. APPLICABLE LAW. THIS 2002 AMENDMENT AND RESTATEMENT
SHALL BE DEEMED TO BE AN AGREEMENT EXECUTED BY THE COMPANY, THE ADMINISTRATIVE
AGENT, THE SYNDICATION AGENTS AND THE BANKS UNDER THE LAWS OF THE XXXXX XX XXX
XXXX XXX XX XXX XXXXXX XXXXXX AND FOR ALL PURPOSES SHALL BE CONSTRUED IN
ACCORDANCE WITH, AND GOVERNED BY, THE LAWS OF SAID STATE AND OF THE UNITED
STATES.
SECTION 6. Credit Agreement. As used in the Credit Agreement and
the Exhibits thereto, (a) the terms "Agreement", "herein", "hereinafter",
"hereunder", "hereto", and words of similar import shall mean, from and after
the date hereof, the Credit Agreement as amended and restated by this 2002
Amendment and Restatement and (b) all references to "the date of this
Agreement", "the date hereof" or like language shall be deemed to be references
to the date of this 2002 Amendment and Restatement.
SECTION 7. Expenses. The Company shall pay, in accordance with
the provisions of Section 13.01 of the Credit Agreement, all reasonable
out-of-pocket expenses incurred by the Administrative Agent and the Banks in
connection with the preparation, negotiation, execution, delivery and
enforcement of this 2002 Amendment and Restatement, including, but not limited
to, the reasonable fees and disbursements of Cravath, Swaine & Xxxxx, as well
as the reasonable out-of-pocket expenses incurred by the arrangers hereof. The
agreement set forth in this Section 7 shall survive the termination of this
2002 Amendment and Restatement.
18
IN WITNESS WHEREOF, the parties hereto have caused this 2002 Amendment
and Restatement to be duly executed by their duly authorized officers, all as
of the date and year first above written.
XXX COMMUNICATIONS, INC.,
by
/s/ Xxxxx X. Xxxxx
---------------------------------------------------
Name: Xxxxx X. Xxxxx
Title: Treasurer
JPMORGAN CHASE BANK, individually
and as Administrative Agent,
by
/s/ Xxxxxxxxx X. Xxxxxxx
---------------------------------------------------
Name: Xxxxxxxxx X. Xxxxxxx
Title: Vice President
WACHOVIA BANK, N.A.
by
/s/ Xxxx X. Xxxxxx
---------------------------------------------------
Name: Xxxx X. Xxxxxx
Title: Vice President
BANK ONE, NA
by
/s/ Xxxxxxxx X. Xxxxx
---------------------------------------------------
Name: Xxxxxxxx X. Xxxxx
Title: Associate Director
CITIBANK, N.A.
by
/s/ Xxxxxxxxx X. Xxxxxxxx
---------------------------------------------------
Name: Xxxxxxxxx X. Xxxxxxxx
Title: Director
19
FLEET NATIONAL BANK
by
/s/ Xxxxxxx Xxxxx
---------------------------------------------------
Name: Xxxxxxx Xxxxx
Title: Vice President
XXXXXX COMMERCIAL PAPER INC.
by
/s/ Xxxxxxx Xxxxxxx
---------------------------------------------------
Name: Xxxxxxx Xxxxxxx
Title: Authorized Signatory
XXXXXX XXXXXXX BANK
by
/s/ Jaap L. Tonckens
---------------------------------------------------
Name: Jaap L. Tonckens
Title: Vice President
SOCIETE GENERALE
by
/s/ Xxxxxx Xxxxxx
---------------------------------------------------
Name: Xxxxxx Xxxxxx
Title: Director
SUNTRUST BANK
by
/s/ Xxxxxx X. Xxxxxx
---------------------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Managing Director
XXXXXXX XXXXX BANK USA
by
/s/ Xxxxx Xxxxx
---------------------------------------------------
Name: Xxxxx Xxxxx
Title: Vice President
20
BANK OF TOKYO-MITSUBISHI TRUST
COMPANY
by
/s/ Xxxxxxx Xxxxxx
---------------------------------------------------
Name: Xxxxxxx Xxxxxx
Title: VP & Manager
COMMERZBANK NEW YORK AND GRAND
CAYMAN BRANCHES
by
/s/ Xxxxx Xxxxxx
---------------------------------------------------
Name: Xxxxx Xxxxxx
Title: Senior Vice President and
Manager
by
/s/ Xxxxx Xxxxxxx
---------------------------------------------------
Name: Xxxxx Xxxxxxx
Title: Vice President
CREDIT SUISSE FIRST BOSTON CAYMAN
ISLANDS BRANCH
by
/s/ Xxx Xxxxx
---------------------------------------------------
Name: Xxx Xxxxx
Title: Director
by
/s/ Xxxxxxx Xxxxxxxxx
---------------------------------------------------
Name: Xxxxxxx Xxxxxxxxx
Title: Vice President
DRESDNER BANK AG, NEW YORK AND GRAND
CAYMAN BRANCHES
by
/s/ Xxxxxxx X. Xxxxxxxxx
---------------------------------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: Vice President
by
/s/ Xxxxxxx X. Xxxxxxx
---------------------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
21
WESTDEUTSCHE LANDESBANK GIROZENTRALE
by
/s/ Pascal Kabemba
---------------------------------------------------
Name: Pascal Kabemba
Title: Associate Director
by
/s/ Xxxx Xxxxxx
---------------------------------------------------
Name: Xxxx Xxxxxx
Title: Associate Director
BANK OF OKLAHOMA, N.A.
by
/s/ Xxxx X. Fish
---------------------------------------------------
Name: Xxxx X. Fish
Title: Senior Vice President
MIZUHO CORPORATE BANK, LTD.
by
/s/ Xxxxxxx Xxxxxxx
---------------------------------------------------
Name: Xxxxxxx Xxxxxxx
Title: Senior Vice President
AUSTRALIA AND NEW ZEALAND BANKING
GROUP LIMITED
by
/s/ R. Xxxxx XxXxxxx
---------------------------------------------------
Name: R. Xxxxx XxXxxxx
Title: Head, Global Structure
Finance Americas
THE BANK OF NOVA SCOTIA
by
/s/ Xxxx X. Xxxxxxxxxxxxx
---------------------------------------------------
Name: Xxxx X. Xxxxxxxxxxxxx
Title: Authorized Signatory
22
FIRST HAWAIIAN BANK
by
/s/ Xxxxxx Xxxxxx
---------------------------------------------------
Name: Xxxxxx Xxxxxx
Title: Media Finance Officer
HIBERNIA NATIONAL BANK
by
/s/ Xxxxxxx X. Xxxxxxxx
---------------------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Media Finance Officer
