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 Radio, 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 $350,000,000 (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) Amendment to Article I. Article I of the Credit Agreement is
hereby amended by:
(i) Deleting the definition of "Agent's Fee Letter" and
substituting therefor the following:
""Agent's Fee Letter" shall mean the fee letter dated
as of June 3, 2002 among JPMCB, X.X. Xxxxxx Securities Inc.
("JPMorgan"), the Company and the other parties thereto."
(ii) Deleting the definition of "Existing Facility" and
substituting therefor the following, and making a corresponding amendment to the
first preamble to the Credit Agreement:
""Existing Facility" shall mean the Amended and Restated
364-Day Credit Agreement dated as of
2
June 29, 2001, among the Company and the banks and the agents
party thereto."
(iii) Amending the definition of the term "Interest
Period" by adding the text", Federal Funds Rate Loan" after "Eurodollar Loan"
therein, moving the "and" at the end of clause (a) to the end of clause (b),
and adding the following to the end thereof:
"(c) 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) In the definition of the term "Majority Banks",
deleting both instances of the text "at least 51%" and substituting in each
instance the text "greater than 50%".
(vi) 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"
3
immediately after the term "CD Rate Loans", and replacing the grid therein with
the following:
Applicable
Margin (%)--
Applicable CD Rate and
Margin (%)-- Federal Funds
Commitment Eurodollar Borrowing Rate
Category Ratings Fee Rate (%) Loans Loans (%)
Category 1 > A-/A3 0.09 0.40 .525
-
Category 2 BBB+/Baa1 0.10 0.50 .625
Category 3 BBB/Baa2 0.125 0.625 .750
Category 4 BBB-/Baa3 0.15 0.75 .875
Category 5 < BB+/Ba1 0.20 1.00 1.125
-
(vii) In the definition of the term "Maturity Date",
deleting the word "fourth" and substituting therefor the word "third".
(viii) 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."
(ix) In the definition of the term "Revolving
Loans", adding immediately after the text "CD Rate Loans", the text ", Federal
Funds Rate Loans".
(x) Deleting the definition of the term "Termination
Date" and substituting therefor the following:
""Termination Date" shall mean June 27, 2003."
(xi) Adding in the appropriate alphabetical order the
following definitions:
"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 2.08(i). The
4
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 Applicable Percentage of the
total LC Exposure at such time.
"LC Participation Fees" shall have the meaning set
forth in Section 4.05.
"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 $350,000,000" and
substituting therefor the text "and letters of credit exceed $150,000,000", 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", inserting in
subclause (x) thereof the text ", Federal Funds Rate Loans" immediately after
the term "CD
5
Rate Loans", and inserting into subclause (y) thereof the text ", Federal Funds
Rate Loans" after the term "Eurodollar Loans".
(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.
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 ", Federal Funds Rate Loans"
immediately after the term "CD Rate Loans", inserting the text ", Federal Funds
Rate Loan" after the text "Alternate Base Rate Loan", and inserting the text ",
Federal Funds Rate Loans" after the final instance of the text "Alternate Base
Rate Loans".
(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 word "fourth", and substituting
therefor the word "third".
6
(i) Amendment to Article II. Article II is
hereby amended by adding at the end thereof the following section:
SECTION 2.08. 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.
(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
$25,000,000 and (ii) the sum of (I) the outstanding
7
aggregate principal amount of all Loans and (II) the LC
Exposure shall not exceed the Total Commitment.
(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 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
8
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, 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 Loan 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
9
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 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 wilful
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.
10
(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 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
11
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
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.
12
(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. Section 4.01 is
hereby amended by deleting the text "an administration fee pursuant to
the terms and conditions set forth in the Agent's Fee Letter", and
substituting therefor the text "the agreed upon administrative fees".
(m) Amendment to Section 4.02. Section 4.02 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."
(n) Amendment to Section 4.03. Section 4.03 is
hereby amended by adding the text ", LC Exposure" after the text
"Loans)", adding the text "and LC Exposure" after each instance of the
text "outstanding Loans", and adding the text "and LC Exposure" after
the text "(a) Loans" and after the text "(b) loans".
(o) Amendment to Section 4.04. Section 4.04 is
hereby amended by replacing the text "Swingline Exposure" with the text
"Swingline Exposure, LC Exposure".
(p) Amendment to Article IV. Article IV is
hereby amended by inserting at the end thereof the following section:
SECTION 4.05. 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
13
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).
(q) 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."
(r) 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.
(s) 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."
14
(ii) Deleting "March 31, 2001" in the last
sentence thereof and substituting therefor "March 31, 2002".
(t) 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.
(u) Amendment to Section 6.14. Section 6.14 is
hereby amended by replacing "June, 2000" with "June, 2002".
(v) Amendment to Section 7.02. Section 7.02 is
hereby amended by inserting the following text immediately following
the first ")" in the first paragraph therein:
", and of the Issuing Bank to issue Letters of
Credit,"
(w) Amendment to Section 7.02(d). Section
7.02(d) is hereby amended by adding the text "in all material respects"
after both instances of the word "true".
(x) Amendment to Section 8.01(a). Section
8.01(a) of the Credit Agreement is hereby amended by deleting the
phrase "January 1, 2002, through December 30, 2002" contained in the
table therein and replacing it with the phrase "January 1, 2002,
through December 31, 2002."
(y) Amendment to Section 8.01(b). Section
8.01(b) of the Credit Agreement is hereby amended by deleting the
entire clause and substituting therefor the following:
"(b) an Interest Coverage Ratio for any four
consecutive fiscal quarter (commencing with such
period ending on June 30, 2002) period of not less
than 2.0 to 1.0."
(z) 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
15
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."
(aa) 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.
(bb) 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".
(cc) Amendment to Section 10.03. Section 10.03 is
hereby amended by inserting the following text at the end of clause (a)
therein:
"provided that a default under other Debt of the
Company or any Restricted Subsidiary as described in this clause (a)
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
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;"
(dd) Amendment to Section 12.05. Section 12.05 is
hereby amended by inserting, immediately after the word "Commitments",
the text ", participations in Letters of Credit".
16
(ee) 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."
(ff) 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.
(gg) 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",
by inserting after the word "Loans" the text "or Letters of Credit",
and by replacing the date "June 21, 2001" with the date "June 3,
2002".
(hh) 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 "participations in Letters of
Credit".
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
17
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 satisfaction 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 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
18
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 Documentation Agents, the Syndication
Agents and the Banks under the laws of the State of New York and of the
United States 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.
19
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 RADIO, INC.,
by
/s/ Xxxxxxx Xxxxxxxx
-------------------------------------
Name: Xxxxxxx Xxxxxxxx
Title: Treasurer
JPMORGAN CHASE BANK
by
/s/ Xxxxxxxxx X. Xxxxxxx
-------------------------------------
Name: Xxxxxxxxx X. Xxxxxxx
Title: Vice President
BANK OF AMERICA, N.A.
by
/s/ Xxxxxx X. Xxxxxxxx
-------------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Principal
WACHOVIA BANK, N.A.
by
/s/ Xxxx X. Xxxxxx
-------------------------------------
Name: Xxxx X. Xxxxxx
Title: Vice President
CITIBANK, N.A.
by
/s/ Xxxxxxxxx X. Xxxxxxx
-------------------------------------
Name: Xxxxxxxxx X. Xxxxxxx
Title: Director
20
FLEET NATIONAL BANK
by
/s/ Xxxxxxx Xxxxx
-------------------------------------
Name: Xxxxxxx Xxxxx
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
XXXXXX COMMERCIAL PAPER INC.
by
/s/ Xxxxxxx Xxxxxxx
-------------------------------------
Name: Xxxxxxx Xxxxxxx
Title: Authorized Signatory
XXXXXX XXXXX BANK USA
by
/s/ Xxxxx Xxxxx
-------------------------------------
Name: Xxxxx Xxxxx
Title: Vice President
XXXXXX XXXXXXX BANK
by
/s/ Jaap L. Tonckens
-------------------------------------
Name: Jaap L. Tonckens
Title: Vice President
21
SUNTRUST BANK
by
/s/ Xxxxxx X. Xxxxxx
-------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Managing Director
THE BANK OF NEW YORK
by
/s/ Xxxxxxx X. Xxxxxx
-------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
COMMERZBANK NEW YORK AND CAYMAN
ISLAND BRANCHES
by
/s/ Xxxxx Xxxxxxx
-------------------------------------
Name: Xxxxx Xxxxxxx
Title: Vice President
by
/s/ Xxx Xxxx
-------------------------------------
Name: Xxx Xxxx
Title: Assistant 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
MIZUHO CORPORATE BANK, LTD.
by
/s/ Xxxxxxx Xxxxxxx
-------------------------------------
Name: Xxxxxxx Xxxxxxx
Title: Senior Vice President
22
UBS AG, STAMFORD BRANCH
by
/s/ Xxxxx Xxxxxxx
-------------------------------------
Name: Xxxxx Xxxxxxx
Title: Associate Director
by
/s/ Xxxx Xxxxxxxxxxx
-------------------------------------
Name: Xxxx Xxxxxxxxxxx
Title: Associate Director
WESTDEUTSCHE LANDESBANK GIROZENTRALE
by
/s/ Pascal Kabemba
-------------------------------------
Name: Pascal Kabemba
Title: Associate Director
by
/s/ Xxxxxxx Xxxxxxxx
-------------------------------------
Name: Xxxxxxx Xxxxxxxx
Title: Associate Director
