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Exhibit 10.1
EXECUTION COPY
AMENDED AND RESTATED 364-DAY CREDIT AGREEMENT dated as of
June 29, 2001 (this "2001 Amendment and Restatement"), among ▇▇▇
Communications, Inc., the banks party hereto (the "Banks"), The
Chase Manhattan Bank, as administrative agent, The Bank of New
York and Wachovia Bank, N.A., as documentation agents (the
"Documentation Agents") and Bank of America, N.A. and Mizuho Bank
as syndica tion agents (the "Syndication Agents").
A. On September 26, 2000, the Company, certain of the Banks
and the Administrative Agent entered into a 364-Day Credit
Agreement in an aggregate principal amount of $1,500,000,000 (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 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."
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(ii) Deleting the definition of "Banks" and sub
stituting 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."
(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 ▇▇▇ Enterprises shall cease at any
time to own directly or indirectly capital stock
representing at least 50.1% of the out standing voting power
represented by all the out standing capital stock of the
Company, (b) any Person or group of Persons other than the
Cox Family, ▇▇▇ 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 ▇▇▇ 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 ▇▇▇
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
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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
▇▇▇▇-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."
(v) Deleting the definition of "Cox Family" and
substituting therefor the following:
""Cox Family" shall include those certain trusts
commonly referred to as the ▇▇▇▇▇▇-▇▇▇ Trust A, the ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇ Atlanta Trust, the ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇ Atlanta
Trust, the Estate of ▇▇▇▇▇ ▇. ▇▇▇, ▇▇., ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇,
▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, and the estates,
executors and adminis trators, 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 "Existing Agreements".
(vii) 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."
(viii) Deleting the definition of "Leverage Ratio" and
substituting therefor the following:
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""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
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 ▇▇▇▇-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."
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(ix) Deleting the definition of "Maturity Date" and
replacing it with the following definition:
""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 29, 2005."
(x) Deleting the definition of "Quarterly Date" and
replacing it with the following definition:
""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."
(xi) Deleting the definition of "Termination Date" and
replacing it with the following definition:
""Termination Date" shall mean June 28, 2002."
(c) Amendment to Section 2.01(i). Section 2.01(i) of the
Credit Agreement is hereby amended by deleting "September 26,
2004" in the first sentence thereof and sub stituting therefor
"June 29, 2005.
(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 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.
(f) Amendment to Section 6.02. Section 6.02 of the Credit
Agreement is hereby amended by:
(i) Deleting the first sentence thereof and sub
stituting 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, 2000, accompanied by the opinion of Deloitte & Touche,
and quarterly consolidated financial statements as at and
for the period ended March 31, 2001."
(ii) Deleting "June 30, 2000" in the last sentence
thereof and substituting therefor "March 31, 2001".
(g) 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.
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(h) Amendment to Section 6.14. Section 6.14 of the Credit
Agreement is hereby amended by deleting "September 2000" therein
and substituting therefor "June 2001".
(i) 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.
(j) 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]"
(k) Amendment to Section 7.04. Section 7.04 of the Credit
Agreement is hereby amended by deleting "June 30, 2000" therein
and substituting therefor "March 31, 2001".
(l) 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"
(m) 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.
(n) 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.
(o) Amendment to Section 13.07. Section 13.07 of the Credit
Agreement is hereby amended by:
(i) Deleting the words in parentheses in sub section
(a) thereof.
(ii) Deleting the first sentence of sub section (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
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Bank Affiliates, assignment of the assigning 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."
(p) All references in the Credit Agreement to "▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇" shall be changed to "One Chase
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇".
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 and is continuing and the representa tions 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 (i) from Counsel and Special FCC Counsel for the
Company, their opinions, dated the date hereof, substantially in
the forms attached to the Credit Agreement as Exhibit 7.01(c)(i)
and (ii) from Counsel for the Administrative Agent, its opinion,
dated the date hereof, substantially in the form attached to the
Credit Agreement as Exhibit 7.01(c)(ii);
(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(d);
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(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 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.
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 Agents, the
Syndication Agents and the Banks under the laws of the State of
New York and of the United States and for all purposes shall be
construed in accordance with, and governed by, the laws of said
State and of the United States.
SECTION 6. Credit Agreement. As used in the Credit Agreement
and the Exhibits thereto, (a) the terms "Agreement", "herein",
"hereinafter", "hereunder", "hereto", and words of similar import
shall mean, from and after the date hereof, the Credit Agreement
as amended and restated by this 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, 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 2001
Amendment and Restatement, including, but not limited to, the
reasonable fees and disbursements of Cravath, Swaine & ▇▇▇▇▇. 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.
▇▇▇ COMMUNICATIONS, INC.,
by /s/▇▇▇▇▇ ▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇
Title: Executive Vice President, Finance and
Administration and Chief Financial
Officer
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