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Exhibit 10.2
EXECUTION COPY
AMENDED AND RESTATED 364-DAY CREDIT AGREEMENT dated as of June 29, 2001
(this "2001 Amendment and Restatement"), among Xxx Radio, Inc., the banks party
hereto (the "Banks"), The Chase Manhattan Bank, as administrative agent,
Citibank, N.A. and Mizuho Bank, as documentation agents (the "Documentation
Agents") and Bank of America, N.A. and Fleet National Bank, as syndication
agents (the "Syndication Agents").
A. On June 30, 2000, the Company, certain of the Banks and the
Administrative Agent entered into a 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. (a) 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.
(b) Amendment to Article I. Article I of the Credit Agreement is
hereby amended by:
(i) Adding in the appropriate alphabetical order the
following definitions:
""Indexed Securities" means securities or financial contracts
of the Company issued and out standing from time to time whose
fair value is derived from an index, such as the trading price
of another referenced security."
""Termination Date" shall mean June 28, 2002."
(ii) 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 21, 2001, among Chase, X.X. Xxxxxx Securities Inc.
("JPMorgan") and the Company."
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(iii) Deleting the definition of "CSI" and substituting
therefor in alphabetical order the following:
""JPMorgan" shall have the meaning set forth in the definition
of "Agent's Fee Letter" under this Agreement."
(iv) Deleting the definition of "Cox Family" and
substituting therefor the following:
""Cox Family" shall include those certain trusts commonly
referred to as the Xxxxxx-Xxx Trust A, the Xxxxxxx Xxx Xxxxxxx
Atlanta Trust, the Xxxx Xxx Xxxxxxxx Atlanta Trust, the Estate
of Xxxxx X. Xxx, Xx., Xxxxxxx Xxx Xxxxxxx, Xxxxxx Xxxxxxx,
Xxxx Xxx Xxxxxxxx, and the estates, executors and
administrators, and lineal descendants of the above-named
individuals, any private foundation or other charitable entity
of which the above- described individuals constitute a
majority of the trustees, directors or managers, and any
corporation, partnership, limited liability company, trust or
other entity in which the above-named trusts or
above-described individuals and the estates, executors and
administrators, and lineal descendants of the above-named
individuals in the aggregate have a direct or indirect
beneficial interest or voting control of greater than 50%."
(v) Adding at the end of clause (b) of the definition of
"EBITDA" the following:
"(which shall exclude any effect thereon in respect of the
accounting for all derivative financial instruments in
accordance with GAAP, as provided in the proviso to, and the
last sentence of, the definition of "Interest Expense")"
(vi) 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 364-Day Credit Agreement
dated as of June 30, 2000, among the Company and the banks and
the agents party thereto."
(vii) Adding at the end of the definition of "Interest
Expense" the following:
"; provided that interest expense shall exclude any effect
thereon in respect of the accounting for all derivative
financial instruments in accordance with GAAP, including
derivative financial instruments that may be embedded in the
Company's or any Restricted Subsidiary's debt securities or
Indexed Securities and freestanding derivative financial
instruments that may be
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used by the Company or any Restricted Subsidiary for hedging
purposes. The effect on interest expense that may be excluded
in respect of the accounting for all derivative financial
instruments in accordance with GAAP include: (i) entries to
record noncash interest expense (or income) associated with
the xxxx-to-market of freestanding and embedded derivative
financial instruments, (ii) noncash interest expense
associated with the accretion of additional debt discount that
may arise from the bifurcation of derivative financial
instruments embedded in the Company's or any Restricted
Subsidiary's debt securities or Indexed Securities, and (iii)
noncash interest expense (or income) that may arise if the
Company's or any Restricted Subsidiary's hedging strategies
become ineffective, as determined in accordance with GAAP."
(viii) Adding at the end of the definition of "Leverage
Ratio" the following:
"; provided that the computation of the Leverage Ratio shall
exclude any effect on the Company's or any Restricted
Subsidiary's debt securities or Indexed Securities in respect
of the accounting for all derivative financial instruments in
accordance with GAAP, including derivative financial
instruments that may be embedded in the Company's or any
Restricted Subsidiary's debt securities or Indexed Securities
and freestanding derivative financial instruments used by the
Company or any Restricted Subsidiary for hedging purposes, but
such computation shall in any event include the original
principal amount and any accreted principal amount of such
debt securities and Indexed Securities. The effect on the
computation of the Leverage Ratio that may be excluded in
respect of the accounting for all derivative financial
instruments in accordance with GAAP include: (i) entries
associated with the xxxx-to-market of all freestanding and
embedded derivative financial instruments classified as a
component of the Company's or any Restricted Subsidiary's debt
securities or Indexed Securities in the consolidated balance
sheet and (ii) entries to record and accrete additional debt
discount that may arise from the bifurcation of derivative
financial instruments embedded in the Company's or any
Restricted Subsidiary's debt securities or Indexed
Securities."
(ix) Deleting the definition of "Majority Banks" and
substituting therefor the following:
""Majority Banks" shall mean, for the period from the date
hereof to and including the Termination Date, Banks holding at
least 51% of the aggregate Commitments hereunder and, for the
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period after the Termination Date until such time as the
Revolving Loans are paid in full, Banks holding at least 51%
of the aggregate principal among of Revolving Loans
outstanding."
(x) Deleting the definition of "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 which case the Maturity Date shall mean
the fourth anniversary of the date of this Agreement."
(xi) Deleting the definition of "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, 2001, or
if any such date is not a Business Day, the respective
Quarterly Date shall be the next succeeding Business Day."
(xii) Deleting "Maturity Date" in the definitions of
"Swingline Commitment" and "Swingline Maturity Date" and substituting
therefor "Termination Date."
(c) Amendment to Section 2.01. Section 2.01 of the Credit
Agreement is hereby amended by:
(i) Deleting subsection (a) thereof and substituting
therefor the following:
"(a) Revolving Loan Commitment. Subject to and upon
the terms and conditions set forth in this Agreement, each
Bank severally agrees to make Revolving Loans in Dollars to
the Company on any one or more Business Days on or after the
date hereof and prior to the Termination Date, up to an
aggregate principal amount of Revolving Loans not exceeding at
any one time outstanding an amount equal to such Bank's
Commitment made to the Company, if any, minus such Bank's
Swingline Loan Exposure; provided, however, that in no event
shall the aggregate outstanding principal amount at any time
of the Revolving Loans and the Discretionary Loans and the
Swingline Loan Exposure exceed $350,000,000, as such amount
may be reduced pursuant to the terms of this Agreement. Each
Borrowing shall be in an aggregate amount of not less than
$3,000,000 and an integral multiple of $250,000. Subject to
the foregoing, each Borrowing shall be made simultaneously
from the Banks according to their Pro Rata Shares of the
principal amount requested for each Borrowing, and shall
consist of Revolving Loans of the same type (e.g., CD Rate
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Loans, Alternate Base Rate Loans or Eurodollar Loans) with the
same Interest Period from each Bank. Within such limits and
during such period, the Company may borrow, repay and reborrow
under this Section 2.01(a)."
(ii) Adding at the end of such Section 2.01 the following
subsection (i):
"(i) Extension of Maturity Date. The Company may, at
its sole option, at any time not sooner than the 30th Business
Day prior to the Termination Date and not later than the 15th
Business Day prior to the Termination Date deliver to the
Administrative Agent written notice extending the Maturity
Date, in which event the Commitments shall terminate on the
Termination Date but the Maturity Date for Revolving Loans
outstanding on the Termination Date shall be extended to the
fourth anniversary of the date of this Agreement. After the
Termination Date, references in Section 2.01(e)(ii),
2.01(g)(vi), 13.03 and 13.07(c) to "Commitment" or
"Commitments" shall be deemed to be references to "Loan" or
"Loans", as the sense of the applicable provisions may
require. Loans repaid or prepaid after the Termination Date
may not be reborrowed."
(d) Amendment to Exhibit 2.01(a). Exhibit 2.01(a) to the Credit
Agreement is hereby amended by deleting such Exhibit 2.01(a) in its entirety and
substituting therefor Exhibit 2.01(a) hereto.
(e) Amendment to Section 2.06. Section 2.06 of the Credit
Agreement is hereby amended by:
(i) Deleting "Maturity Date" in the first and the third
sentences of subsection (a) thereof and substituting therefor
"Termination Date".
(ii) Adding at the end of subsection (a) thereof the
following sentence:
"The Company hereby unconditionally promises to pay to each
Bank the then unpaid principal amount of each Discretionary
Loan made by such Bank on the earlier of the Maturity Date and
the date on which such principal amount is due pursuant to the
terms of such Discretionary Loan."
(f) Amendment to Section 2.07. Section 2.07 of the Credit Agreement is
hereby amended by deleting "Maturity Date" in the first and the last sentences
of subsection (a) thereof and substituting therefor "Termination Date".
(g) Amendment to Section 4.02. Section 4.02 of the Credit Agreement is
hereby amended by deleting "Maturity Date" in the first and second sentences
thereof and substituting therefor "Termination Date".
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(h) Amendment to Section 4.03. Section 4.03 of the Credit
Agreement is hereby amended by deleting it in its entirety and substituting
therefor the following:
"SECTION 4.03. Utilization Fees. From the date of this
Agreement to and including the Maturity Date, the Company
agrees to pay to the Administrative Agent for the account of
each Bank (ratably in accordance with the outstanding Loans
(other than Swingline Loans) and Swingline Exposures of the
Banks), in Dollars, a utilization fee ("Utilization Fee") (i)
equal to 0.10% times the sum of the aggregate principal amount
of the outstanding Loans for any date on which the sum of the
outstanding aggregate principal amount of the (a) Loans plus
(b) loans under the Facility B Credit Agreement (such sum, the
"Utilized Loans") is greater than the sum of 33 1/3% of the
(x) Total Commitment hereunder plus (y) aggregate amount of
the commitments of the lenders under the Facility B Credit
Agreement (such sum, the "Aggregate Commitments") but less
than or equal to 66 2/3% of the Aggregate Commitments, and
(ii) equal to 0.15% times the aggregate amount of the
outstanding Loans for any date on which the amount of the
Utilized Loans exceeds 66 2/3% of the Aggregate Commitments.
For purposes of determining the applicable Utilization Fee
during the period following the Termination Date and prior to
the Maturity Date, the applicable calculations shall be made
based on the amount of the Loans outstanding hereunder from
time to time and the Total Commitments hereunder immediately
prior to their termination on the Termination Date. Any
Utilization Fee accrued during any quarter will be payable, on
a 360-day basis, on the last Business Day of such quarter."
(i) 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.
(j) Amendment to Section 6.02. Section 6.02 of the Credit
Agreement is hereby amended by:
(i) Deleting the first sentence thereof in its entirety
and substituting therefor the following:
"The Company has furnished each Bank with the consolidated
financial statements for the Company and the Subsidiaries as
at and for its fiscal year ended December 31, 2000,
accompanied by the opinion of Deloitte & Touche, and quarterly
consolidated financial statements as at and for the period
ended March 31, 2001."
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(ii) Deleting "June 30, 2000" in the last sentence thereof and
substituting therefor "March 31, 2001".
(k) 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.
(l) Amendment to Section 6.14. Section 6.14 of the Credit Agreement is
hereby amended by deleting "June 2000" therein and substituting therefor "June
2001".
(m) Amendment to Article VII. Article VII of the Credit Agreement
is hereby amended by deleting Section 7.01 thereof and substituting therefor the
following:
"SECTION 7.01. [Intentionally Omitted]"
(n) Amendment to Section 8.01. Section 8.01 of the Credit
Agreement is hereby amended by deleting clause (b) thereof and substituting
therefor the following:
"(b) an Interest Coverage Ratio for any four
consecutive fiscal quarter (commencing with such period ending
on June 30, 2001) period of not less than 2.0 to 1.0."
(o) Amendment to Section 9.01(d). Section 9.01(d) is hereby
amended by deleting subclause (z) of clause (i) thereof and substituting
therefor the following:
"(z) securing Debt reflected in the consolidated
financial statements of the Company referred to in Section
6.02 or"
(p) 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.
(q) Amendment to Section 9.07. Section 9.07 of the Credit Agreement is
hereby amended by deleting clause (i) from paragraph (a) thereof and by deleting
"clause (g)" from paragraph (b) thereof and substituting therefor "clause (f)".
(r) Amendment to Article XII. Article XII of the Credit Agreement
is hereby amended by adding as Section 12.07 the following:
"SECTION 12.07. Other Agents. None of the Banks identified on
the facing page or signature pages or elsewhere herein as
"syndication agent" or "documentation agent" shall have any
right, power, obligation, liability, responsibility or duty
under this Agreement other than those applicable to all Banks
as such. Without limiting the foregoing, none of the Banks so
identified shall have or be deemed to have any
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fiduciary relationship with any Banks. Each Bank acknowledges
that it has not relied, and will not rely, on any of the Banks
so identified in deciding to enter into this Agreement or in
taking or not taking action hereunder."
(s) 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.
(t) Amendment to Section 13.04. Section 13.04 of the Credit
Agreement is hereby amended by:
(i) Deleting "CSI" therein and substituting therefor
"JPMorgan".
(ii) Deleting "June 23, 2000" therein and substituting
therefor "June 21, 2001".
(u) Amendment to Section 13.07(c). Section 13.07(c) of the Credit
Agreement is hereby amended by:
(i) Deleting the text in the first set of parentheses
thereof and substituting therefor the following:
"(except in the case of assignments to Banks and Bank
Affiliates)".
(ii) Deleting the words "(which consent shall not be
unreasonably withheld) and" therein and substituting therefor the
following:
"(which consent shall not be unreasonably withheld or delayed)
and written acknowledgment of".
(iii) Deleting the text in parentheses in clause(i) of the
first proviso thereof and substituting therefor for the following:
"(except in the case of assignments to Banks or Bank
Affiliates, assignment of the assigning Bank's entire
remaining commitment or unless otherwise agreed by the
Company)".
(v) All references in the Credit Agreement to "000 Xxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000" shall be changed to "One Chase Xxxxxxxxx Xxxxx, Xxx Xxxx,
Xxx Xxxx 00000".
SECTION 2. Representations and Warranties. The Company hereby
represents and warrants to the Administrative Agent and the Banks that:
(a) This 2001 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 2001
Amendment and Restatement, no Default or Event of Default has occurred
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and is continuing and the representations and warranties contained in the
Credit Agreement, as amended and restated by this 2001 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 2001 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 2001 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 its opinion dated the date hereof, substantially in
the form attached to the Credit Agreement as Exhibit 7.01(b);
(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(c);
(d) the Administrative Agent shall have received all fees and other
amounts due and payable to the Administrative Agent and to the Banks on or prior
to the date hereof, including (i) such fees and amounts due and payable pursuant
to the terms and conditions set forth in the Agent's Fee Letter and (ii) to the
extent invoiced, reimbursement or payment of all reasonable 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 2001 Amendment and Restatement has become effective.
SECTION 4. Counterparts. This 2001 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 2001
Amendment and Restatement.
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SECTION 5. APPLICABLE LAW. This 2001 Amendment and Restatement shall be
deemed to be an agreement executed by the Company, the Administrative Agent, the
Documentation Agent, the Syndication Agent 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 2001
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 2001 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 2001 Amendment and Restatement, including, but not limited
to, the reasonable fees and disbursements of Cravath, Swaine & Xxxxx. The
agreement set forth in this Section 7 shall survive the termination of this 2001
Amendment and Restatement.
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IN WITNESS WHEREOF, the parties hereto have caused this 2001 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:VIce President, Treasurer
[LENDERS]
