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Exhibit 10.2
EXECUTION COPY
FIRST AMENDMENT (this "Amendment") dated as of June 29, 2001
in respect of the FIVE-YEAR CREDIT AGREEMENT dated as of
September 26, 2000 (the "Credit Agreement"), among Xxx
Communications, Inc., the banks party thereto (the "Banks"), The
Chase Manhattan Bank, as administrative agent, The Bank of New
York and Wachovia Bank, N.A., as co-documentation agents (the
"Documentation Agents") and Bank of America, N.A., as syndication
agent (the "Syndication Agent").
A. The parties hereto have agreed, subject to the terms and
conditions hereof, to amend the Credit Agreement as set forth
herein on the terms and subject to the conditions provided
herein.
B. Capitalized terms used and not otherwise defined herein
shall have the meanings assigned to such terms in the Credit
Agreement.
SECTION 1. (a) Amendment to Article I. Article I of the
Credit Agreement is hereby amended by:
(i) Adding in the appropriate alphabetical order the
following definition:
""Bank Affiliate" shall mean, (a) with respect to any
Bank, (i) an Affiliate of such Bank or (ii) any entity
(whether a corporation, partnership, trust or otherwise)
that is primarily engaged in making, purchasing, holding or
otherwise investing in bank loans and similar extensions of
credit in the ordinary course of its business and is
controlled (whether through voting power or the power to
cause the direction of management or policies or otherwise)
by a Bank or an Affiliate of such Bank and (b) with respect
to any Bank that is a fund which invests in bank loans and
similar extensions of credit, any other fund that invests in
bank loans and similar extensions of credit and is
controlled (whether through voting power or the power to
cause the direction of management or policies or otherwise)
by the same investment advisor as such Bank or by an
Affiliate of such investment advisor."
(ii) Deleting the definition of "Banks" and
substituting therefor the following:
""Banks" shall mean the Persons listed on Exhibit
2.01(a), each such Bank's respective successors (which
successors shall include any entity resulting from a merger
or consolidation) and any other Person that shall have
become a party hereto pursuant to an Assignment and
Acceptance, other than any such Person that ceases to be a
party hereto pursuant to an Assignment and Acceptance."
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(iii) Deleting the definition of "Change of Control"
and substituting therefor the following:
"A "Change of Control" shall be deemed to have occurred
if (a) the Cox Family and Xxx Enterprises shall cease at any
time to own directly or indirectly capital stock
representing at least 50.1% of the outstanding voting power
represented by all the outstanding capital stock of the
Company, (b) any Person or group of Persons other than the
Cox Family, Xxx Enterprises and Persons controlled by them
shall have the right or ability, directly or indirectly, to
cause the election of a majority of the directors of the
Company, (c) the Cox Family shall cease at any time to own
directly or indirectly capital stock representing at least
50.1% of the outstanding voting power represented by all the
outstanding capital stock of Xxx Enterprises, or (d) any
Person or group of Persons other than the Cox Family shall
have the right or ability, directly or indirectly, to cause
the election of a majority of the directors of Xxx
Enterprises."
(iv) Deleting the definition of "Consolidated
Annualized Interest Expense" and substituting therefor the
following:
""Consolidated Annualized Interest Expense" shall mean
four times the sum of (i) interest expense, after giving
effect to any net payments made or received by the Company
and its Restricted Subsidiaries with respect to interest
rate swaps, caps and floors or other similar agreements, and
(ii) capitalized interest expense, in each case of the
Company and its Restricted Subsidiaries for the most
recently completed fiscal quarter, all on a consolidated
basis determined in accordance with GAAP; provided that
interest expense shall exclude (a) any Deferred Basic
Interest or Accrued Interest (as defined in Section 3 of the
global notes evidencing the PRIZES) on the PRIZES until such
time as such Deferred Basic Interest or Accrued Interest is
paid in cash and (b) any effect on interest expense 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 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
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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."
(v) 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%."
(vi) Deleting the definition of "Indexed Securities"
and substituting therefor the following:
""Indexed Securities" means the PHONES, the PRIZES, the
Discount Debentures and any other securities or financial
contracts of the Company issued and outstanding from time to
time whose fair value is derived from an index, such as the
trading price of another referenced security."
(vii) Deleting the definition of "Leverage Ratio" and
substituting therefor the following:
""Leverage Ratio" shall mean, at any time, the ratio of
(a) Consolidated Debt as of the last day of the fiscal
quarter most recently ended to (b) Pro-forma Consolidated
Annualized Operating Cash Flow; provided that (i) so long as
the Company is the beneficial owner of shares or other
securities constituting, or convertible into or exchangeable
for the Maximum Number of Reference Shares (as defined in
Section 3 of the global notes evidencing the PRIZES) with
respect to the outstanding PRIZES (excluding, for purposes
of such determination, any shares or other securities in
respect of which any other Indexed Securities shall have
been issued and shall be outstanding and excluding any
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portion of any shares or other securities attributable to
any additional consideration payable upon any such
conversion or exchange), the computation of the Leverage
Ratio shall exclude the PRIZES, (ii) so long as the Company
is the beneficial owner of shares or other securities
constituting, or convertible into or exchangeable for
4,477,000 Reference Shares (as defined in Section 101 of the
PHONES Supplemental Indenture) with respect to the
outstanding PHONES (excluding, for purposes of such
determination, any shares or other securities in respect of
which any other Indexed Securities shall have been issued
and shall be outstanding and excluding any portion of any
shares or other securities attributable to any additional
consideration payable upon any such conversion or exchange),
the computation of the Leverage Ratio shall exclude the
PHONES, and (iii) 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 of the Company 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."
(b) 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.
(c) 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.
(d) Amendment to Exhibit 6.15. Exhibit 6.15 to the Credit
Agreement is hereby amended by deleting such Exhibit 6.15 and
substituting therefor Exhibit 6.15 hereto.
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(e) 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"
(f) 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.
(g) 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.
(h) Amendment to Section 13.07. Section 13.07 of the Credit
Agreement is hereby amended by:
(i) Deleting the words in parentheses in subsection (a)
thereof.
(ii) Deleting the first sentence of subsection (c)
thereof and replacing it with the following:
"Subject (except in the case of assignments to Banks
and Bank Affiliates) to the prior written consent of the
Company (which consent shall not be unreasonably withheld or
delayed) and written acknowledgment of the Administrative
Agent, each Bank may assign to a bank or other Person all or
a portion of its rights and obligations under this Agreement
(including, without limitation, all or a portion of its
Commitment); provided, however, that (i) each such
assignment shall be of a constant, and not a varying,
percentage of all of the assigning Bank's rights and
obligations under this Agreement and shall be in an amount
equal to or greater than $10,000,000 of the assigning Bank's
Commitment (except in the case of assignments to Banks or
Bank Affiliates, assignment of the Bank's entire remaining
commitment or unless otherwise agreed by the Company), (ii)
the parties to each such assignment shall execute and
deliver to the Administrative Agent, for its acceptance and
recording in the Register, an Assignment and Acceptance in
substantially the form of Exhibit 13.07(c) attached hereto
(the "Assignment and Acceptance"), together with a
processing and recordation fee of $3,500; provided, however,
that such recordation fee shall not be payable if such
transfer is made pursuant to Sections 2.01(f) or (h)(vi),
and provided, further, that any consent of the Company
required under this paragraph shall not be required if an
Event of Default has occurred and is continuing."
(i) 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".
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SECTION 2. Representations and Warranties. The Company hereby
represents and warrants to the Administrative Agent and the Banks
that:
(a) This Amendment 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
Amendment, no Default or Event of Default has occurred and is
continuing and the representations and warranties contained in the
Credit Agreement, as amended by this Amendment, are true and correct
in all material respects as if made on the date hereof.
SECTION 3. Effectiveness. The effectiveness of this Amendment is
subject to the satisfaction on the date hereof of the following
conditions:
(a) the Administrative Agent shall have received executed
counterparts of this Amendment which, when taken together, bear the
signatures of the Company and the Majority Banks; and
(b) 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.
Following the satisfaction on the date hereof of the conditions
set forth above, the Administrative Agent shall inform the Company in
writing that this Amendment has become effective.
SECTION 4. Counterparts. This Amendment 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 Amendment.
SECTION 5. APPLICABLE LAW. This Amendment shall be deemed to be
an agreement executed by the Company, the Administrative Agent, the
Documentation Agents, the Syndication Agent and the Majority 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, 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 by this
Amendment.
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SECTION 7. Expenses. The Company shall, in accordance with the
provisions of Section 13.01 of the Credit Agreement, pay 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 Amendment, 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 Amendment.
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IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be duly executed by their duly authorized officers, all as
of the date and year first above written.
XXX COMMUNICATIONS, INC.,
by /s/Xxxxx Xxxxx
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Name: Xxxxx Xxxxx
Title: Executive Vice President, Finance and
Administration and Chief Financial
Officer
[MAJORITY BANKS]
