Common use of Related Amendments Clause in Contracts

Related Amendments. The Company will not amend, modify or change in any manner the Five-Year Citibank Agreement (or any credit agreement with one or more commercial banks that replaces the Five-Year Citibank Agreement and provides for a revolving credit facility for a term of more than 364 days), the 364-Day Citibank Agreement (or any credit agreement with one or more commercial banks that replaces the 364-Day Citibank Agreement and provides for a revolving credit facility for a term of no less than 6 months and no more than 2 years) or any other long-term Debt of the Company (excluding the Notes), in each case (i) to amend any of the covenants therein in a manner that results in covenants more restrictive than those contained in such agreements or instruments as of December 31, 2002 (unless the same covenants in this Agreement, if any, are similarly amended), (ii) until Standard & Poor's' and Moody's Investors Service, Inc.'s ratings for thx Xxxxxny's long-term senior unsecured debt are at least BBB and Baa2, respectively (and, if such ratings are BBB and Baa2, respectively, they are not the subject of a credit watch with negative outlook), include any new covenant therein that is not contained in such agreements or instruments as of December 31, 2002 (unless the same new covenant is included in this Agreement with terms no more restrictive than those of such new covenant in any such agreement or instrument) or (iii) until the Super Proceeds Target and the Zero-Coupon Notes Target are met, to shorten the maturity or amortization thereof, provided that the Company shall in no event shorten the maturity or amortization thereof to a date prior to July 31, 2005, or prepay with cash or Debt any amounts under the foregoing (other than (x) in connection with a refinancing thereof with Debt having a maturity no sooner than the maturity of such refinanced Debt or (y) prepayments pursuant to the terms of the Citibank Agreements); it being understood that the Company shall be permitted to make any such prepayment with capital stock of the Company." (f) Subsection 6G of Paragraph 6 of the Agreement is amended in full to read as follows:

Related Amendments. The Until the date of delivery of the amendment referred to in Paragraph 5H, the Company will not amend, modify or change in any manner its (a) Five-Year Credit Agreement with Citibank, N.A., as agent, and the other lenders party thereto, dated as of June 27, 2000 (as amended, supplemented and in effect as of the date hereof, the "Five-Year Citibank Agreement (or any credit agreement with one or more commercial banks that replaces the Five-Year Citibank Agreement and provides for a revolving credit facility for a term of more than 364 daysAgreement"), (b) 364-Day Credit Agreement with Citibank, N.A., as agent, and the other lenders party thereto, dated as of May 16, 2002 (as amended, supplemented and in effect as of the date hereof, the "364-Day Citibank Agreement Agreement"), or (or any credit agreement with one or more commercial banks that replaces the 364-Day Citibank Agreement and provides for a revolving credit facility for a term of no less than 6 months and no more than 2 yearsc) or any other long-term Debt of the Company (excluding the Notes)Company, in each case (i) to amend any of the covenants therein in a manner that results in covenants more restrictive than those contained in such agreements or instruments as of December 31, 2002 (unless the same covenants in this Agreement, if any, are similarly amended), (ii) until Standard & Poor's' and Moody's Investors Service, Inc.'s ratings for thx Xxxxxny's long-term senior unsecured debt are at least BBB and Baa2, respectively (and, if such ratings are BBB and Baa2, respectively, they are not the subject of a credit watch with negative outlook), include any new covenant therein that is not contained in such agreements or instruments as of December 31, 2002 (unless the same new covenant is included in this Agreement with terms no more restrictive than those of such new covenant in any such agreement or instrument) or (iii) until the Super Proceeds Target and the Zero-Coupon Notes Target are met, to shorten the maturity or amortization thereof, provided that the Company shall in no event shorten the maturity or amortization thereof to a date prior to July 31, 2005, or prepay with cash or Debt any amounts under the foregoing (other than (x) in connection with a refinancing thereof with Debt having a maturity no sooner than the maturity of such refinanced Debt or (y) prepayments pursuant to the terms of the Five-Year Citibank AgreementsAgreement and the 364-Day Citibank Agreement ); it being understood that the Company shall be permitted to make any such prepayment with capital stock of the Company." (fc) Subsection 6G From and after November 13, 2002 the interest rate on the Notes shall be 8.59% per annum and the interest rate "7.59%" shall be deleted each and every time it appears in the Agreement or the Notes and replaced with "8.59%." The Company hereby agrees to execute and deliver to each Holder who shall request the same, upon surrender to the Company of Paragraph 6 the outstanding Note held by such Holder, a new Note in the same principal amount as the surrendered Note, but having an interest rate of 8.59%. Until so exchanged, the interest rate on all outstanding Notes shall be deemed to be 8.59%, notwithstanding any other interest rate set out in such Note. 2. Except as expressly provided herein (and solely with respect to any applicable period referenced herein), the Agreement shall remain in full force and effect and this Amendment and Waiver Agreement shall not operate as a waiver of any right, power or remedy of any Holder, nor constitute a waiver of any provision of the Agreement. 3. In reliance upon the Company's representations in Section 4 below, the Required Holders (a) waive any violations of Section 6B of the Agreement occurring at the end of the fiscal quarter ended September 30, 2002, and (b) acknowledge and agree with the Company that any bank overdraft obligations of the Company and its Consolidated Subsidiaries outstanding during any period prior to (and including any period ended on) September 30, 2002, shall be excluded from Total Borrowed Funds. 4. In reliance upon the Company's representations in Section 4 below, the Required Holders waive any violations of Sections 5A, 5B(i) and 5(E) of the Agreement, and any inaccuracies in the representations and warranties contained in Sections 8D and 8K of the Agreement, in each case solely to the extent caused by the non-cash charges incurred by the Company in an aggregate amount of no more than $190,000,000 with respect to the fiscal quarter ended June 30, 2002 or prior periods on a cumulative basis; provided, however, that with respect to Section 5E, such waiver is limited to those laws, rules and regulations enacted for the primary purpose of regulating or governing audit and/or financial reporting requirements for similarly-situated public companies; and provided further that all of the foregoing waivers expressly exclude any conduct, actions or omissions on the part of the Company, its affiliates, or any of their respective officers, directors or employees in connection with the matters contemplated hereby, that constitute fraud, willful misconduct or criminal charges for which any such Person is indicted or otherwise prosecuted. 5. As inducement for the waivers and amendments set forth in Sections 3 and 4, the Company hereby represents and warrants that: (a) At the end of the fiscal quarter ended on September 30, 2002, Total Borrowed Funds did not exceed 107.0% of Consolidated Net Worth. (b) After giving effect to this Amendment and Waiver Agreement, no Default or Event of Default will have occurred or be continuing. (c) The Company is a corporation duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization, and has all corporate powers and all material governmental licenses, authorizations, consents and approvals required to carry on its business. (d) The execution, delivery and performance by the Company of this Amendment and Waiver Agreement, are within the Company 's corporate powers, have been duly authorized by all necessary corporate action, and do not contravene, or constitute a default under, any provision of applicable law or regulation or of the certificate of incorporation of the Company or of any judgment, injunction, order, decree, material agreement or other instrument binding upon the Company or result in the creation or imposition of any Lien on any asset of the Company or any of its Consolidated Subsidiaries. (e) No authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body or any other third party is required for the due execution, delivery and performance by the Company of this Amendment and Waiver Agreement. (f) This Amendment and Waiver Agreement has been duly executed and delivered by the Company. This Amendment and Waiver Agreement is the legal, valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium or other laws affecting the rights of creditors generally and subject to general principles of equity. (g) There is no action, suit, investigation, litigation or proceeding pending against, or to the knowledge of the Company, threatened against the Company or any of its Consolidated Subsidiaries before any court or arbitrator or any governmental body, agency or official in which there is a significant probability of an adverse decision that (i) would have a material adverse effect on (x) the business, financial condition or results of operations of the Company and its Consolidated Subsidiaries taken as a whole, (y) the rights and remedies of the Holders under the Agreement or any Note or (z) the ability of the Company to perform its obligations under the Agreement or any Note or (ii) purports to affect the legality, validity or enforceability of this Amendment and Waiver Agreement or the consummation of the transactions contemplated hereby. 6. In consideration for the waiver set forth in Section 2, the Company shall pay pro rata to the Holders a fee in an aggregate amount equal to the product of (x) the aggregate outstanding principal amount of the Notes and (y) 0.15%. 7. The Company agrees to pay all out-of-pocket expenses incurred by the Holders in connection with this Amendment and Waiver Agreement in accordance with the terms of Section 11B of the Agreement. 8. This Amendment and Waiver Agreement shall be construed and enforced in accordance with the laws of the State of New York, without regard to conflicts of law provisions. 9. Each of the Holders agrees to keep confidential, in accordance with Section 11H of the Agreement, all information disclosed by the Company to the Holders in connection with this Amendment and Waiver Agreement relating to the subject matter hereof (other than any such information (i) which was publicly known or otherwise known to such Holder at the time of disclosure, or (ii) which subsequently becomes publicly known through no act or omission by such Holder). 10. This Amendment and Waiver Agreement shall be effective as of the date first above written and the Agreement shall be deemed amended upon delivery to the Holders of a fully executed copy of this Amendment and Waiver Agreement and the fee set forth in full to read as follows:Section 5.

Related Amendments. The Until the date of delivery of the amendment referred to in Paragraph 5H, the Company will not amend, modify or change in any manner its (a) Five-Year Credit Agreement with Citibank, N.A., as agent, and the other lenders party thereto, dated as of June 27, 2000 (as amended, supplemented and in effect as of the date hereof, the "Five-Year Citibank Agreement (or any credit agreement with one or more commercial banks that replaces the Five-Year Citibank Agreement and provides for a revolving credit facility for a term of more than 364 daysAgreement"), (b) 364-Day Credit Agreement with Citibank, N.A., as agent, and the other lenders party thereto, dated as of May 16, 2002 (as amended, supplemented and in effect as of the date hereof, the "364-Day Citibank Agreement Agreement"), or (or any credit agreement with one or more commercial banks that replaces the 364-Day Citibank Agreement and provides for a revolving credit facility for a term of no less than 6 months and no more than 2 yearsc) or any other long-term Debt of the Company (excluding the Notes)Company, in each case (i) to amend any of the covenants therein in a manner that results in covenants more restrictive than those contained in such agreements or instruments as of December 31, 2002 (unless the same covenants in this Agreement, if any, are similarly amended), (ii) until Standard & Poor's' and Moody's Investors Service, Inc.'s ratings for thx Xxxxxny's long-term senior unsecured debt are at least BBB and Baa2, respectively (and, if such ratings are BBB and Baa2, respectively, they are not the subject of a credit watch with negative outlook), include any new covenant therein that is not contained in such agreements or instruments as of December 31, 2002 (unless the same new covenant is included in this Agreement with terms no more restrictive than those of such new covenant in any such agreement or instrument) or (iii) until the Super Proceeds Target and the Zero-Coupon Notes Target are met, to shorten the maturity or amortization thereof, provided that the Company shall in no event shorten the maturity or amortization thereof to a date prior to July 31, 2005, or prepay with cash or Debt any amounts under the foregoing (other than (x) in connection with a refinancing thereof with Debt having a maturity no sooner than the maturity of such refinanced Debt or (y) prepayments pursuant to the terms of the Five-Year Citibank AgreementsAgreement and the 364-Day Citibank Agreement ); it being understood that the Company shall be permitted to make any such prepayment with capital stock of the Company." (fc) Subsection 6G From and after November 13, 2002 the interest rate on the Notes shall be 8.91% per annum and the interest rate "7.91%" shall be deleted each and every time it appears in the Agreement or the Notes and replaced with "8.91%." The Company hereby agrees to execute and deliver to each Holder who shall request the same, upon surrender to the Company of Paragraph 6 the outstanding Note held by such Holder, a new Note in the same principal amount as the surrendered Note, but having an interest rate of 8.91%. Until so exchanged, the interest rate on all outstanding Notes shall be deemed to be 8.91%, notwithstanding any other interest rate set out in such Note. 2. Except as expressly provided herein (and solely with respect to any applicable period referenced herein), the Agreement shall remain in full force and effect and this Amendment and Waiver Agreement shall not operate as a waiver of any right, power or remedy of any Holder, nor constitute a waiver of any provision of the Agreement. 3. In reliance upon the Company's representations in Section 4 below, the Required Holders (a) waive any violations of Section 6B of the Agreement occurring at the end of the fiscal quarter ended September 30, 2002, and (b) acknowledge and agree with the Company that any bank overdraft obligations of the Company and its Consolidated Subsidiaries outstanding during any period prior to (and including any period ended on) September 30, 2002, shall be excluded from Total Borrowed Funds. 4. In reliance upon the Company's representations in Section 4 below, the Required Holders waive any violations of Sections 5A, 5B(i) and 5(E) of the Agreement, and any inaccuracies in the representations and warranties contained in Sections 8D and 8K of the Agreement, in each case solely to the extent caused by the non-cash charges incurred by the Company in an aggregate amount of no more than $190,000,000 with respect to the fiscal quarter ended June 30, 2002 or prior periods on a cumulative basis; provided, however, that with respect to Section 5E, such waiver is limited to those laws, rules and regulations enacted for the primary purpose of regulating or governing audit and/or financial reporting requirements for similarly-situated public companies; and provided further that all of the foregoing waivers expressly exclude any conduct, actions or omissions on the part of the Company, its affiliates, or any of their respective officers, directors or employees in connection with the matters contemplated hereby, that constitute fraud, willful misconduct or criminal charges for which any such Person is indicted or otherwise prosecuted. 5. As inducement for the waivers and amendments set forth in Sections 3 and 4, the Company hereby represents and warrants that: (a) At the end of the fiscal quarter ended on September 30, 2002, Total Borrowed Funds did not exceed 107.0% of Consolidated Net Worth. (b) After giving effect to this Amendment and Waiver Agreement, no Default or Event of Default will have occurred or be continuing. (c) The Company is a corporation duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization, and has all corporate powers and all material governmental licenses, authorizations, consents and approvals required to carry on its business. (d) The execution, delivery and performance by the Company of this Amendment and Waiver Agreement, are within the Company 's corporate powers, have been duly authorized by all necessary corporate action, and do not contravene, or constitute a default under, any provision of applicable law or regulation or of the certificate of incorporation of the Company or of any judgment, injunction, order, decree, material agreement or other instrument binding upon the Company or result in the creation or imposition of any Lien on any asset of the Company or any of its Consolidated Subsidiaries. (e) No authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body or any other third party is required for the due execution, delivery and performance by the Company of this Amendment and Waiver Agreement. (f) This Amendment and Waiver Agreement has been duly executed and delivered by the Company. This Amendment and Waiver Agreement is the legal, valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium or other laws affecting the rights of creditors generally and subject to general principles of equity. (g) There is no action, suit, investigation, litigation or proceeding pending against, or to the knowledge of the Company, threatened against the Company or any of its Consolidated Subsidiaries before any court or arbitrator or any governmental body, agency or official in which there is a significant probability of an adverse decision that (i) would have a material adverse effect on (x) the business, financial condition or results of operations of the Company and its Consolidated Subsidiaries taken as a whole, (y) the rights and remedies of the Holders under the Agreement or any Note or (z) the ability of the Company to perform its obligations under the Agreement or any Note or (ii) purports to affect the legality, validity or enforceability of this Amendment and Waiver Agreement or the consummation of the transactions contemplated hereby. 6. In consideration for the waiver set forth in Section 2, the Company shall pay pro rata to the Holders a fee in an aggregate amount equal to the product of (x) the aggregate outstanding principal amount of the Notes and (y) 0.15%. 7. The Company agrees to pay all out-of-pocket expenses incurred by the Holders in connection with this Amendment and Waiver Agreement in accordance with the terms of Section 11B of the Agreement. 8. This Amendment and Waiver Agreement shall be construed and enforced in accordance with the laws of the State of New York, without regard to conflicts of law provisions. 9. Each of the Holders agrees to keep confidential, in accordance with Section 11H of the Agreement, all information disclosed by the Company to the Holders in connection with this Amendment and Waiver Agreement relating to the subject matter hereof (other than any such information (i) which was publicly known or otherwise known to such Holder at the time of disclosure, or (ii) which subsequently becomes publicly known through no act or omission by such Holder). 10. This Amendment and Waiver Agreement shall be effective as of the date first above written and the Agreement shall be deemed amended upon delivery to the Holders of a fully executed copy of this Amendment and Waiver Agreement and the fee set forth in full to read as follows:Section 5.

Related Amendments. The Until the date of delivery of the amendment referred to in Paragraph 5H, the Company will not amend, modify or change in any manner its (a) Five-Year Credit Agreement with Citibank, N.A., as agent, and the other lenders party thereto, dated as of June 27, 2000 (as amended, supplemented and in effect as of the date hereof, the "Five-Year Citibank Agreement (or any credit agreement with one or more commercial banks that replaces the Five-Year Citibank Agreement and provides for a revolving credit facility for a term of more than 364 daysAgreement"), (b) 364-Day Credit Agreement with Citibank, N.A., as agent, and the other lenders party thereto, dated as of May 16, 2002 (as amended, supplemented and in effect as of the date hereof, the "364-Day Citibank Agreement Agreement"), or (or any credit agreement with one or more commercial banks that replaces the 364-Day Citibank Agreement and provides for a revolving credit facility for a term of no less than 6 months and no more than 2 yearsc) or any other long-term Debt of the Company (excluding the Notes)Company, in each case (i) to amend any of the covenants therein in a manner that results in covenants more restrictive than those contained in such agreements or instruments as of December 31, 2002 (unless the same covenants in this Agreement, if any, are similarly amended), (ii) until Standard & Poor's' and Moody's Investors Service, Inc.'s ratings for thx Xxxxxny's long-term senior unsecured debt are at least BBB and Baa2, respectively (and, if such ratings are BBB and Baa2, respectively, they are not the subject of a credit watch with negative outlook), include any new covenant therein that is not contained in such agreements or instruments as of December 31, 2002 (unless the same new covenant is included in this Agreement with terms no more restrictive than those of such new covenant in any such agreement or instrument) or (iii) until the Super Proceeds Target and the Zero-Coupon Notes Target are met, to shorten the maturity or amortization thereof, provided that the Company shall in no event shorten the maturity or amortization thereof to a date prior to July 31, 2005, or prepay with cash or Debt any amounts under the foregoing (other than (x) in connection with a refinancing thereof with Debt having a maturity no sooner than the maturity of such refinanced Debt or (y) prepayments pursuant to the terms of the Five-Year Citibank AgreementsAgreement and the 364-Day Citibank Agreement ); it being understood that the Company shall be permitted to make any such prepayment with capital stock of the Company." (fc) Subsection 6G From and after November 13, 2002 the interest rate on the Notes shall be 9.51% per annum and the interest rate "8.51%" shall be deleted each and every time it appears in the Agreement or the Notes and replaced with "9.51%." The Company hereby agrees to execute and deliver to each Holder who shall request the same, upon surrender to the Company of Paragraph 6 the outstanding Note held by such Holder, a new Note in the same principal amount as the surrendered Note, but having an interest rate of 9.51%. Until so exchanged, the interest rate on all outstanding Notes shall be deemed to be 9.51%, notwithstanding any other interest rate set out in such Note. 2. Except as expressly provided herein (and solely with respect to any applicable period referenced herein), the Agreement shall remain in full force and effect and this Amendment and Waiver Agreement shall not operate as a waiver of any right, power or remedy of any Holder, nor constitute a waiver of any provision of the Agreement. 3. In reliance upon the Company's representations in Section 4 below, the Required Holders (a) waive any violations of Section 6B of the Agreement occurring at the end of the fiscal quarter ended September 30, 2002, and (b) acknowledge and agree with the Company that any bank overdraft obligations of the Company and its Consolidated Subsidiaries outstanding during any period prior to (and including any period ended on) September 30, 2002, shall be excluded from Total Borrowed Funds. 4. In reliance upon the Company's representations in Section 4 below, the Required Holders waive any violations of Sections 5A, 5B(i) and 5(E) of the Agreement, and any inaccuracies in the representations and warranties contained in Sections 8D and 8K of the Agreement, in each case solely to the extent caused by the non-cash charges incurred by the Company in an aggregate amount of no more than $190,000,000 with respect to the fiscal quarter ended June 30, 2002 or prior periods on a cumulative basis; provided, however, that with respect to Section 5E, such waiver is limited to those laws, rules and regulations enacted for the primary purpose of regulating or governing audit and/or financial reporting requirements for similarly-situated public companies; and provided further that all of the foregoing waivers expressly exclude any conduct, actions or omissions on the part of the Company, its affiliates, or any of their respective officers, directors or employees in connection with the matters contemplated hereby, that constitute fraud, willful misconduct or criminal charges for which any such Person is indicted or otherwise prosecuted. 5. As inducement for the waivers and amendments set forth in Sections 3 and 4, the Company hereby represents and warrants that: (a) At the end of the fiscal quarter ended on September 30, 2002, Total Borrowed Funds did not exceed 107.0% of Consolidated Net Worth. (b) After giving effect to this Amendment and Waiver Agreement, no Default or Event of Default will have occurred or be continuing. (c) The Company is a corporation duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization, and has all corporate powers and all material governmental licenses, authorizations, consents and approvals required to carry on its business. (d) The execution, delivery and performance by the Company of this Amendment and Waiver Agreement, are within the Company 's corporate powers, have been duly authorized by all necessary corporate action, and do not contravene, or constitute a default under, any provision of applicable law or regulation or of the certificate of incorporation of the Company or of any judgment, injunction, order, decree, material agreement or other instrument binding upon the Company or result in the creation or imposition of any Lien on any asset of the Company or any of its Consolidated Subsidiaries. (e) No authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body or any other third party is required for the due execution, delivery and performance by the Company of this Amendment and Waiver Agreement. (f) This Amendment and Waiver Agreement has been duly executed and delivered by the Company. This Amendment and Waiver Agreement is the legal, valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium or other laws affecting the rights of creditors generally and subject to general principles of equity. (g) There is no action, suit, investigation, litigation or proceeding pending against, or to the knowledge of the Company, threatened against the Company or any of its Consolidated Subsidiaries before any court or arbitrator or any governmental body, agency or official in which there is a significant probability of an adverse decision that (i) would have a material adverse effect on (x) the business, financial condition or results of operations of the Company and its Consolidated Subsidiaries taken as a whole, (y) the rights and remedies of the Holders under the Agreement or any Note or (z) the ability of the Company to perform its obligations under the Agreement or any Note or (ii) purports to affect the legality, validity or enforceability of this Amendment and Waiver Agreement or the consummation of the transactions contemplated hereby. 6. In consideration for the waiver set forth in Section 2, the Company shall pay pro rata to the Holders a fee in an aggregate amount equal to the product of (x) the aggregate outstanding principal amount of the Notes and (y) 0.15%. 7. The Company agrees to pay all out-of-pocket expenses incurred by the Holders in connection with this Amendment and Waiver Agreement in accordance with the terms of Section 11B of the Agreement. 8. This Amendment and Waiver Agreement shall be construed and enforced in accordance with the laws of the State of New York, without regard to conflicts of law provisions. 9. Each of the Holders agrees to keep confidential, in accordance with Section 11H of the Agreement, all information disclosed by the Company to the Holders in connection with this Amendment and Waiver Agreement relating to the subject matter hereof (other than any such information (i) which was publicly known or otherwise known to such Holder at the time of disclosure, or (ii) which subsequently becomes publicly known through no act or omission by such Holder). 10. This Amendment and Waiver Agreement shall be effective as of the date first above written and the Agreement shall be deemed amended upon delivery to the Holders of a fully executed copy of this Amendment and Waiver Agreement and the fee set forth in full to read as follows:Section 5.

Related Amendments. The Until the date of delivery of the amendment referred to in Paragraph 5H, the Company will not amend, modify or change in any manner its (a) Five-Year Credit Agreement with Citibank, N.A., as agent, and the other lenders party thereto, dated as of June 27, 2000 (as amended, supplemented and in effect as of the date hereof, the "Five-Year Citibank Agreement (or any credit agreement with one or more commercial banks that replaces the Five-Year Citibank Agreement and provides for a revolving credit facility for a term of more than 364 daysAgreement"), (b) 364-Day Credit Agreement with Citibank, N.A., as agent, and the other lenders party thereto, dated as of May 16, 2002 (as amended, supplemented and in effect as of the date hereof, the "364-Day Citibank Agreement Agreement"), or (or any credit agreement with one or more commercial banks that replaces the 364-Day Citibank Agreement and provides for a revolving credit facility for a term of no less than 6 months and no more than 2 yearsc) or any other long-term Debt of the Company (excluding the Notes)Company, in each case (i) to amend any of the covenants therein in a manner that results in covenants more restrictive than those contained in such agreements or instruments as of December 31, 2002 (unless the same covenants in this Agreement, if any, are similarly amended), (ii) until Standard & Poor's' and Moody's Investors Service, Inc.'s ratings for thx Xxxxxny's long-term senior unsecured debt are at least BBB and Baa2, respectively (and, if such ratings are BBB and Baa2, respectively, they are not the subject of a credit watch with negative outlook), include any new covenant therein that is not contained in such agreements or instruments as of December 31, 2002 (unless the same new covenant is included in this Agreement with terms no more restrictive than those of such new covenant in any such agreement or instrument) or (iii) until the Super Proceeds Target and the Zero-Coupon Notes Target are met, to shorten the maturity or amortization thereof, provided that the Company shall in no event shorten the maturity or amortization thereof to a date prior to July 31, 2005, or prepay with cash or Debt any amounts under the foregoing (other than (x) in connection with a refinancing thereof with Debt having a maturity no sooner than the maturity of such refinanced Debt or (y) prepayments pursuant to the terms of the Five-Year Citibank AgreementsAgreement and the 364-Day Citibank Agreement ); it being understood that the Company shall be permitted to make any such prepayment with capital stock of the Company." (fc) Subsection 6G From and after November 13, 2002 the interest rate on the Notes shall be 9.45% per annum and the interest rate "8.45%" shall be deleted each and every time it appears in the Agreement or the Notes and replaced with "9.45%." The Company hereby agrees to execute and deliver to each Holder who shall request the same, upon surrender to the Company of Paragraph 6 the outstanding Note held by such Holder, a new Note in the same principal amount as the surrendered Note, but having an interest rate of 9.45%. Until so exchanged, the interest rate on all outstanding Notes shall be deemed to be 9.45%, notwithstanding any other interest rate set out in such Note. 2. Except as expressly provided herein (and solely with respect to any applicable period referenced herein), the Agreement shall remain in full force and effect and this Amendment and Waiver Agreement shall not operate as a waiver of any right, power or remedy of any Holder, nor constitute a waiver of any provision of the Agreement. 3. In reliance upon the Company's representations in Section 4 below, the Required Holders (a) waive any violations of Section 6B of the Agreement occurring at the end of the fiscal quarter ended September 30, 2002, and (b) acknowledge and agree with the Company that any bank overdraft obligations of the Company and its Consolidated Subsidiaries outstanding during any period prior to (and including any period ended on) September 30, 2002, shall be excluded from Total Borrowed Funds. 4. In reliance upon the Company's representations in Section 4 below, the Required Holders waive any violations of Sections 5A, 5B(i) and 5(E) of the Agreement, and any inaccuracies in the representations and warranties contained in Sections 8D and 8K of the Agreement, in each case solely to the extent caused by the non-cash charges incurred by the Company in an aggregate amount of no more than $190,000,000 with respect to the fiscal quarter ended June 30, 2002 or prior periods on a cumulative basis; provided, however, that with respect to Section 5E, such waiver is limited to those laws, rules and regulations enacted for the primary purpose of regulating or governing audit and/or financial reporting requirements for similarly-situated public companies; and provided further that all of the foregoing waivers expressly exclude any conduct, actions or omissions on the part of the Company, its affiliates, or any of their respective officers, directors or employees in connection with the matters contemplated hereby, that constitute fraud, willful misconduct or criminal charges for which any such Person is indicted or otherwise prosecuted. 5. As inducement for the waivers and amendments set forth in Sections 3 and 4, the Company hereby represents and warrants that: (a) At the end of the fiscal quarter ended on September 30, 2002, Total Borrowed Funds did not exceed 107.0% of Consolidated Net Worth. (b) After giving effect to this Amendment and Waiver Agreement, no Default or Event of Default will have occurred or be continuing. (c) The Company is a corporation duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization, and has all corporate powers and all material governmental licenses, authorizations, consents and approvals required to carry on its business. (d) The execution, delivery and performance by the Company of this Amendment and Waiver Agreement, are within the Company 's corporate powers, have been duly authorized by all necessary corporate action, and do not contravene, or constitute a default under, any provision of applicable law or regulation or of the certificate of incorporation of the Company or of any judgment, injunction, order, decree, material agreement or other instrument binding upon the Company or result in the creation or imposition of any Lien on any asset of the Company or any of its Consolidated Subsidiaries. (e) No authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body or any other third party is required for the due execution, delivery and performance by the Company of this Amendment and Waiver Agreement. (f) This Amendment and Waiver Agreement has been duly executed and delivered by the Company. This Amendment and Waiver Agreement is the legal, valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium or other laws affecting the rights of creditors generally and subject to general principles of equity. (g) There is no action, suit, investigation, litigation or proceeding pending against, or to the knowledge of the Company, threatened against the Company or any of its Consolidated Subsidiaries before any court or arbitrator or any governmental body, agency or official in which there is a significant probability of an adverse decision that (i) would have a material adverse effect on (x) the business, financial condition or results of operations of the Company and its Consolidated Subsidiaries taken as a whole, (y) the rights and remedies of the Holders under the Agreement or any Note or (z) the ability of the Company to perform its obligations under the Agreement or any Note or (ii) purports to affect the legality, validity or enforceability of this Amendment and Waiver Agreement or the consummation of the transactions contemplated hereby. 6. In consideration for the waiver set forth in Section 2, the Company shall pay pro rata to the Holders a fee in an aggregate amount equal to the product of (x) the aggregate outstanding principal amount of the Notes and (y) 0.15%. 7. The Company agrees to pay all out-of-pocket expenses incurred by the Holders in connection with this Amendment and Waiver Agreement in accordance with the terms of Section 11B of the Agreement. 8. This Amendment and Waiver Agreement shall be construed and enforced in accordance with the laws of the State of New York, without regard to conflicts of law provisions. 9. Each of the Holders agrees to keep confidential, in accordance with Section 11H of the Agreement, all information disclosed by the Company to the Holders in connection with this Amendment and Waiver Agreement relating to the subject matter hereof (other than any such information (i) which was publicly known or otherwise known to such Holder at the time of disclosure, or (ii) which subsequently becomes publicly known through no act or omission by such Holder). 10. This Amendment and Waiver Agreement shall be effective as of the date first above written and the Agreement shall be deemed amended upon delivery to the Holders of a fully executed copy of this Amendment and Waiver Agreement and the fee set forth in full to read as follows:Section 5.