Exhibit 10.2
AMENDED AND RESTATED 364-DAY CREDIT
AGREEMENT dated as of June 27, 2003 (this "2003
Amendment and Restatement"), among ▇▇▇
Communications, Inc. (the "Company"), 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 co-syndication agents (the
"Syndication Agents").
A. On June 28, 2002, the Company, certain of the Banks and the
Administrative Agent entered into an Amended and Restated 364-Day Credit
Agreement in an aggregate principal amount of $1,100,000,000 (the "Credit
Agreement").
B. The parties hereto have agreed, subject to the terms and
conditions hereof, to amend and restate the Credit Agreement as set forth herein
on the terms and subject to the conditions provided herein.
C. Capitalized terms used and not otherwise defined herein
shall have the meanings assigned to such terms in the Credit Agreement.
SECTION 1. Amendment and Restatement. The Credit Agreement is
hereby amended and restated in the form of an Amended and Restated Credit
Agreement dated as of the date hereof, the terms of which shall be identical to
the terms of the Credit Agreement except as expressly provided in this Section.
(a) The Credit Agreement is hereby amended by replacing the
amount "$1,100,000,000" in the first sentence of the preamble with the amount
"$900,000,000".
(b) Amendment to Article I. Article I of the Credit Agreement
is hereby amended by:
(i) Amending the definition of the term "Applicable
Percentage" to read as follows:
"Applicable Percentage" means, with respect to any Bank, the
percentage of the total Commitments represented by such Bank's
Commitment. If the Commitments have terminated or expired, the
Applicable Percentages shall be determined based upon the Commitments
most recently in effect, giving effect to any assignments.
(ii) Amending the definition of the term "Consolidated
Annualized Operating Cash Flow" to read as follows:
""Consolidated Annualized Operating Cash Flow" shall mean (i)
four times the operating income of the Company and its Restricted
Subsidiaries for the most recently completed fiscal quarter (less cash
dividends and other cash
distributions to the holders of minority interests in the Company's
Restricted Subsidiaries), before giving effect to depreciation,
amortization, other non-cash charges, equity in earnings (losses) of
unconsolidated investees on a consolidated basis determined in
accordance with GAAP and nonrecurring one-time charges plus (ii) cash
dividends and cash distributions paid (other than extraordinary
distributions) to the Company and its Restricted Subsidiaries during
the most recently completed fiscal quarter and the three immediately
preceding fiscal quarters by unconsolidated investees of the Company
and its Restricted Subsidiaries, on a consolidated basis determined in
accordance with GAAP minus, without duplication (iii) the amount of
cash payments made during such fiscal quarter and the three immediately
preceding fiscal quarters in respect of items that were originally
reflected as non-cash charges."
(iii) Deleting the definition of the term "Maturity Date" and
substituting therefor the following:
""Maturity Date" shall mean the Termination Date, unless the
Company shall give the notice of extension contemplated by Section
2.01(i), in which case the Maturity Date shall mean June 27, 2006."
(iv) 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, 2003, or if any
such date is not a Business Day, the respective Quarterly Date shall be
the next preceding Business Day."
(v) Deleting the definition of the term "Termination Date" and
substituting therefor the following:
""Termination Date" shall mean June 25, 2004."
(c) Amendment to Section 2.01(a). Section 2.01(a) is hereby
amended by:
(i) Deleting the text "$1,100,000,000" and substituting
therefor the text "$900,000,000".
(ii) Deleting the text "and Discretionary Loans and Letters of
Credit" and substituting therefore the text ", Discretionary Loans and LC
Exposure".
(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) and
substituting therefor Exhibit 2.01(a) hereto.
(e) Amendment to Section 2.01(i). Section 2.01(i) is hereby
amended by deleting the text "June 28, 2005", and substituting therefor the text
"June 27, 2006".
(f) Amendment to Section 2.07(c). Section 2.07(c) is hereby
amended by deleting the entire clause and substituting therefor the following:
"Each Letter of Credit shall expire not later than the earlier
of (i) the first anniversary of the issuance (or the most recent
extension or renewal) of such Letter of Credit and (ii) the date that
is five Business Days prior to the first anniversary of the Termination
Date."
(g) 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.
(h) 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, 2002, accompanied by the opinion of
Deloitte & Touche, and quarterly consolidated financial statements as
at and for the period ended March 31, 2003."
(ii) Deleting "March 31, 2002" in the last sentence thereof
and substituting therefor "March 31, 2003".
(i) 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.
(j) Amendment to Section 6.14. Section 6.14 is hereby amended
by deleting the date "June 2002", and substituting therefor the date "June
2003".
(k) 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.
(l) 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.
(m) 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.
SECTION 2. Representations and Warranties. The Company hereby
represents and warrants to the Administrative Agent and the Banks that:
(a) This 2003 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
2003 Amendment and Restatement, no Default or Event of Default has occurred and
is continuing and the representations and warranties contained in the Credit
Agreement, as amended and restated by this 2003 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 2003
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 2003 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, in
form and substance reasonably satisfactory to the Administrative Agent;
(c) the Administrative Agent shall have received on behalf of
the Banks an Officer's Certificate dated the date hereof, in form and substance
reasonably satisfactory to the Administrative Agent;
(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 2003 Amendment and Restatement has become effective.
SECTION 4. Counterparts. This 2003 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 2003 Amendment and Restatement.
SECTION 5. APPLICABLE LAW. This 2003 Amendment and Restatement
shall be deemed to be an agreement executed by the Company, the Administrative
Agent, the Syndication Agents and the Banks under the laws of the 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 2003
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 2003 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 2003 Amendment and Restatement, including, but not limited
to, the reasonable fees and disbursements of Cravath, Swaine & ▇▇▇▇▇ LLP, 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
2003 Amendment and Restatement.
IN WITNESS WHEREOF, the parties hereto have caused this 2003 Amendment
and Restatement to be duly executed by their duly authorized officers, all as of
the date and year first above written.
▇▇▇ COMMUNICATIONS, INC.,
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Treasurer
JPMORGAN CHASE BANK, individually and
as Administrative Agent,
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Managing Director
BANK OF AMERICA, N.A.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Vice President
WACHOVIA BANK, NATIONAL ASSOCIATION
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇
Title: Vice President
BANK ONE, NA
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Director
CITIBANK, N.A.
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Director
THE BANK OF NEW YORK
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
BANK OF TOKYO-MITSUBISHI TRUST COMPANY
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Title: Vice President
FLEET NATIONAL BANK
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
▇▇▇▇▇▇ BROTHERS BANK, FSB
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
▇▇▇▇▇▇▇ ▇▇▇▇▇ BANK USA
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇▇▇▇▇
Title: Vice President
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ BANK
By: /s/ Jaap L. Tonckens
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Name: Jaap L. Tonckens
Title: Vice President
SOCIETE GENERALE
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Director
SUNTRUST BANK
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇▇▇▇▇▇▇
Title: Director
UBS AG, CAYMAN ISLANDS BRANCH
By: /s/ ▇▇▇▇▇▇▇▇ ▇'▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇▇ ▇'▇▇▇▇▇
Title: Director
By: /s/ ▇▇▇▇▇▇▇ ▇. Saint
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Name: ▇▇▇▇▇▇▇ ▇. Saint
Title: Associate Director Banking
Products Services, US
THE BANK OF NOVA SCOTIA
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, ▇▇.
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, ▇▇.
Title: Authorized Signatory
COMMERZBANK AG, NEW YORK AND GRAND
CAYMAN BRANCHES
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Senior Vice President and
Manager
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Senior Vice President
CREDIT SUISSE FIRST BOSTON, ACTING
THROUGH ITS CAYMAN ISLANDS BRANCH
By: /s/ Sovonna Day-▇▇▇▇▇
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Name: Sovonna Day-▇▇▇▇▇
Title: Vice President
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Associate
DRESDNER BANK AG, NEW YORK AND
GRAND CAYMAN BRANCHES
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Vice President
MIZUHO CORPORATE BANK, LTD.
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
SUMITOMO MITSUI BANKING CORPORATION
By: /s/ ▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Senior Vice President
AUSTRALIA AND NEW ZEALAND BANKING
GROUP LIMITED
By: /s/ R. ▇▇▇▇▇ ▇▇▇▇▇▇▇
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Name: R. ▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Country Head USA
Head of Structured Finance
- Americas
BANK OF OKLAHOMA, N.A.
By: /s/ ▇▇▇▇ ▇. Fish
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Name: ▇▇▇▇ ▇. Fish
Title: Senior Vice President
HIBERNIA NATIONAL BANK
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President
U.S. BANK NATIONAL ASSOCIATION
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Vice President
