Exhibit 10.2
FIRST AMENDMENT AND LIMITED
WAIVER TO CREDIT AGREEMENT
This FIRST AMENDMENT AND LIMITED
WAIVER TO CREDIT AGREEMENT, dated as of December 29, 2008
(this “ Amendment ”), is entered into by COX
RADIO, INC., a Delaware corporation (the “ Company
”), the Persons signatory hereto as Lenders (the “
Lenders ”), and JPMORGAN CHASE BANK, N.A., as
administrative agent (in such capacity, the “
Administrative Agent ”) under the Credit Agreement
dated as of July 26, 2006 (as amended, supplemented or
otherwise modified from time to time, the “ Credit
Agreement ”), among the Company, the Lenders party
thereto and the Administrative Agent.
In consideration of the mutual
execution hereof and other good and valuable consideration, the
parties hereto hereby agree as follows:
1. Defined Terms .
Capitalized terms which are defined in the Credit Agreement and not
otherwise defined herein have the meanings given in the Credit
Agreement.
2. Amendments Applicable to
Lehman Brothers Bank, FSB . Subject to satisfaction of the
conditions of effectiveness of this Amendment set forth in
Section 5 herein, the Company, the Administrative
Agent, Lehman Brothers Bank, FSB (“ Lehman ”)
and the Majority Lenders hereby agree to amend the Credit Agreement
as follows:
(a) Amendment to
Section 1.01 of the Credit Agreement .
(i) Section 1.01 of the
Credit Agreement is hereby amended by amending and restating the
following defined terms in their entirety to read as
follows:
““ Conventional
Revolving Borrowing ” shall mean a Borrowing of
Conventional Revolving Loans made by the Company under
Section 2.01(a), as converted or continued under
Section 2.08; provided that, solely for purposes of
conversion, continuation or interest election under
Section 2.08, “Conventional Revolving Borrowing”
shall be deemed to include any outstanding Terminated Revolving
Loans that may be part of any Borrowing from time to time, as
applicable.”
““ Loans ”
shall mean Conventional Revolving Loans (in each case whether
Federal Funds Rate Loans, Alternate Base Rate Loans or Eurodollar
Loans), Discretionary Revolving Loans and Terminated Revolving
Loans (in each case whether Federal Funds Rate Loans, Alternate
Base Rate Loans or Eurodollar Loans).”
““ Revolving
Commitment ” shall mean, with respect to each Lender, the
commitment, if any, of such Lender to make Conventional Revolving
Loans hereunder up to the principal amount set forth as to such
Lender on Exhibit 2.01(a); provided that, solely for
purposes of the definition of Majority Lenders, Lehman’s
“Revolving Commitment” shall be deemed to be equal to
the aggregate amount outstanding of Lehman’s Terminated
Revolving Loans. The initial aggregate amount of the Revolving
Commitments on the Closing Date was $600,000,000.”
(ii) Section 1.01 of the
Credit Agreement is hereby amended by inserting the following
defined terms in their appropriate alphabetical order:
““ First Amendment to
Credit Agreement ” means the First Amendment and Limited
Waiver to Credit Agreement, dated as of the First Amendment Closing
Date, among the Company, Administrative Agent and the Lenders party
thereto.”
““ First Amendment
Closing Date ” means December 29,
2008.”
““ Lehman ”
shall mean Lehman Brothers Bank, FSB, in its capacity as a
Lender.”
““ Terminated
Revolving Loans ” shall have the meaning specified in
Section 2.01(a).
(iii) Section 1.01 of
the Credit Agreement is hereby amended by inserting the text
“or a Terminated Revolving Loan” immediately after the
words “Conventional Revolving Loan” in the definition
of Default Rate.
(iv) Section 1.01 of the
Credit Agreement is hereby amended by inserting the text “or
Terminated Revolving Loans” immediately after the words
“Conventional Revolving Loans” in the definition of
Interest Period.
(v) Section 1.01 of the
Credit Agreement is hereby amended by inserting the text “or
a Terminated Revolving Loan” immediately after the words
“Conventional Revolving Loan” in the definition of
Lending Office.
(b) Amendment to
Section 2.01 of the Credit Agreement .
Section 2.01 of the Credit Agreement is hereby amended
to be named “ Conventional Revolving Loans and Terminated
Revolving Loans ”.
(c) Amendment to
Section 2.01(a) of the Credit Agreement .
Section 2.01(a) of the Credit Agreement is hereby
amended and restated in its entirety to read as follows:
“ Revolving Commitments
. (i) Subject to and upon the terms and conditions set forth
in this Agreement, each Lender severally agrees to make revolving
loans (collectively, the “ Conventional Revolving
Loans ”) to the Company on any one or more Business Days
on or after the date hereof and prior to the Revolving Credit
Termination Date, up to an aggregate principal amount not exceeding
at any one time outstanding an amount equal to (A) such
Lender’s Revolving Commitment less (B) the principal
amount of all Discretionary Revolving Loans outstanding to such
Lender and the LC Exposure of such Lender at such time, if any;
provided that in no event shall the aggregate outstanding
principal amount of Conventional Revolving Loans, Discretionary
Revolving Loans, Terminated Revolving Loans and the aggregate LC
Exposure ever exceed $597,105,263, as such amount may be increased
or reduced pursuant to the terms of this Agreement. Each
Conventional Revolving Borrowing shall be in an aggregate amount of
not less than $2,000,000 and an integral multiple of $250,000.
Subject to the foregoing, each Conventional Revolving Borrowing
shall be made simultaneously from the Lenders according to their
Borrowing Pro Rata Shares of the principal amount requested for
each Conventional Revolving Borrowing and shall consist of
Conventional Revolving Loans of the same type ( e.g.,
Alternate Base Rate Loans, Federal Funds Rate Loans or Eurodollar
Loans) with the same Interest Period from each Lender. Within such
limits and during such period, the Company may borrow, repay and
reborrow under this Section 2.01(a)(i).
(ii) The Company, the Administrative
Agent and Lehman agree that, immediately prior to the First
Amendment Closing Date, the aggregate outstanding balance of
Conventional
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Revolving Loans made by Lehman to
the Company hereunder is $5,789,473.33 and that immediately upon
the First Amendment Closing Date, automatically and without any
action by any Person, (A) such Conventional Revolving Loans
are hereafter deemed to become terminated revolving loans (the
“ Terminated Revolving Loans ”) for all purposes
hereunder and (B) Lehman’s Revolving Commitment in
excess of the amount of its Terminated Revolving Loans hereunder
shall be permanently reduced as provided in Section 4.01.
Notwithstanding any other provision herein, the Company shall not
be permitted to reborrow any Terminated Revolving Loans that are
repaid or prepaid as permitted hereunder. For the avoidance of
doubt, a Terminated Revolving Loan is not a Conventional Revolving
Loan for purposes of this Agreement.”
(d) Amendment to
Section 2.01(b) of the Credit Agreement .
Section 2.01(b) of the Credit Agreement is hereby
amended and restated in its entirety to read as follows:
“ Repayment of Conventional
Revolving Loans and Terminated Revolving Loans . The Company
hereby unconditionally promises to pay to the Administrative Agent
(i) on the Revolving Credit Termination Date, all outstanding
Conventional Revolving Loans for account of the Lenders holding
Conventional Revolving Loans and all outstanding Terminated
Revolving Loans for the account of Lehman and (ii) all
outstanding Conventional Revolving Loans for account of a Declining
Lender as provided in Section 2.13.”
(e) Amendment to
Section 2.02(c) of the Credit Agreement .
Section 2.02(c) of the Credit Agreement is hereby
amended by amending and restating the following text “The
Conventional Revolving Loans shall bear interest as follows:”
in its entirety to read as follows “The Conventional
Revolving Loans and the Terminated Revolving Loans shall bear
interest as follows:”.
(f) Amendment to
Section 2.11(d) of the Credit Agreement .
Section 2.11(d) of the Credit Agreement is hereby
amended by inserting the following sentences at the end
thereof:
“Notwithstanding anything to
the contrary herein, on the First Amendment Closing Date, all of
Lehman’s LC Exposure shall be reallocated among the Lenders
(other than Lehman) in accordance with their respective Applicable
Revolver Percentages of the LC Exposure but only to the extent
(x) the sum of (1) the principal amount of all
Lenders’ (other than Lehman) outstanding Conventional
Revolving Loans and Discretionary Revolving Loans and (2) all
Lenders’ (other than Lehman) LC Exposure, including such
Lenders’ pro rata share of Lehman’s allocated LC
Exposure, does not exceed the total of all Lenders’ (other
than Lehman) Commitments, (y) the sum of (1) the
principal amount of any Lender’s outstanding Conventional
Revolving Loans and Discretionary Revolving Loans and (2) such
Lender’s LC Exposure, including such Lender’s pro rata
share of Lehman’s allocated LC Exposure, does not exceed such
Lender’s Commitment and (z) the conditions set forth in
Section 7.02 are satisfied. After giving effect to such
reallocation, the fees payable to the Lenders pursuant to
Section 4.03 and Section 4.04 shall be adjusted in
accordance with the Lenders’ Applicable Revolver
Percentages.”
(g) Amendment to
Section 3.01(d) of the Credit Agreement .
Section 3.01(d) of the Credit Agreement is hereby
amended by inserting the following text at the end of clause
(ii) thereof: “; provided that in the case of any
prepayment of a Borrowing that shall include Conventional Revolving
Loans and Terminated Revolving Loans, such prepayment shall be
allocated to the holders thereof according to their pro rata share
of such Borrowing.”
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(h) Amendment to
Section 3.02(d) of the Credit Agreement .
Section 3.02(d) of the Credit Agreement is hereby
amended by inserting the text “or Terminated Revolving
Loans” immediately after the words “Conventional
Revolving Loans”.
(i) Amendment to
Section 3.03 of the Credit Agreement .
Section 3.03 of the Credit Agreement is hereby amended
by adding the following new sentence after the first sentence of
that Section:
“Subject to Section 3.01
and to the remainder of this Section 3.03, all payments and
prepayments made in accordance with the provisions of this
Agreement in respect of the Terminated Revolving Loans shall be
made to the Administrative Agent, and the Administrative Agent will
promptly distribute to Lehman in immediately available funds the
amount of each such payment or prepayment.”
(j) Amendment to
Section 4.01 of the Credit Agreement .
Section 4.01 of the Credit Agreement is hereby amended
by inserting the following text at the end of the first sentence
therein: “ provided , however , that upon the
First Amendment Closing Date, automatically and without any action
by any Person and notwithstanding anything contained herein to the
contrary and subject to the reallocation of Lehman’s LC
Exposure described in Section 2.11(d), the Commitments of
Lehman will be reduced to the aggregate amount of the Terminated
Revolving Loans outstanding on the First Amendment Closing Date,
whereupon Lehman shall cease to have any Commitments hereunder
(except for any deemed Commitments solely for the purposes
described in the definition of Majority Lenders).”
(k) Amendment to
Section 4.03(a) of the Credit Agreement .
Section 4.03(a) of the Credit Agreement is hereby
amended by inserting the following sentence at the end of such
subsection: “For the avoidance of doubt, no Commitment Fees
shall be payable with respect to any Terminated Revolving Loans (or
any commitments related thereto).”
(l) Amendment to Exhibit
2.01(a) . Exhibit 2.01(a) to the Credit Agreement is
hereby amended and restated as set forth on Exhibit 2.01(a)
attached hereto.
3. General Amendments .
Subject to satisfaction of the conditions of effectiveness of this
Amendment set forth in Section 5 herein, the Company,
the Administrative Agent and the Majority Lenders hereby agree to
amend the Credit Agreement as follows:
(a) Amendment to
Section 1.01 of the Credit Agreement .
Section 1.01 of the Credit Agreement is hereby amended
by inserting the following defined term in appropriate alphabetical
order:
““ Defaulting
Lender ” means any Lender that has failed to fund any
portion of its Loans or participations in Letters of Credit within
three Business Days of the date required to be funded by it
hereunder, or any Lender that has, as determined by the
Administrative Agent (a) notified the Company, the
Administrative Agent, the Issuing Lender, or any Lender in writing
that it does not intend to comply with any or all of its funding
obligations under this Agreement or has made a public statement to
the effect that it does not intend to comply with its funding
obligations under this Agreement or under other agreements in which
it commits to extend credit, (b) failed, within three Business
Days after a request by the Administrative Agent, to confirm that
it will comply with the terms of this Agreement relating to its
obligations to fund prospective Loans and participations in then
outstanding Letters of Credit, (c) otherwise failed to pay
over to the Administrative Agent or any other Lender any other
amount required to be paid by it
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hereunder within three Business Days
of the date when due, unless the subject of a good faith dispute,
or (d) (i) become or is insolvent or has a parent company
that has become or is insolvent or (ii) become the subject of
a bankruptcy or insolvency proceeding, or has had a receiver,
conservator, trustee or custodian appointed for it, or has taken
any action in furtherance of, or indicating its consent to,
approval of or acquiescence in any such proceeding or appointment
or has a parent company that has become the subject of a bankruptcy
or insolvency proceeding, or has had a receiver, conservator,
trustee or custodian appointed for it, or has taken any action in
furtherance of, or indicating its consent to, approval of or
acquiescence in any such proceeding or
appointment.”
(b) Amendment to Article II of
the Credit Agreement . Article II of the Credit
Agreement is hereby amended by inserting the following new
Section 2.14 at the end thereof:
“Section 2.14 Defaulting
Lender . Notwithstanding any provision of this Agreement to the
contrary, if any Lender becomes a Defaulting Lender, then the
following provisions shall apply for so long as such Lender is a
Defaulting Lender:
(a) Fees in favor of such Defaulting
Lender only shall cease to accrue on the unfunded portion of the
Commitments of, and in respect of the participation in Letters of
Credit by, such Defaulting Lender pursuant to Section 4.03 and
Section 4.04, and the Defaulting Lender will not be included
in any distribution to the Lenders, pursuant to Section 3.03,
of Commitment Fees or LC Participation Fees.
(b) If a Lender has any LC Exposure
at any time such Lender is a Defaulting Lender then:
(i) all or any part of such LC
Exposure shall be reallocated among the non-Defaulting Lenders in
accordance with their respective Applicable Revolver Percentages of
the LC Exposure but only to the extent (x) the sum of
(1) the principal amount of all non-Defaulting Lenders’
outstanding Conventional Revolving Loans and Discretionary
Revolving Loans and (2) all non-Defaulting Lenders’ LC
Exposure, including their pro rata shares of the Defaulting
Lender’s LC Exposure, does not exceed the total of all
non-Defaulting Lenders’ Commitments, (y) the sum of
(1) the principal amount of any non-Defaulting Lender’s
outstanding Conventional Revolving Loans and Discretionary
Revolving Loans and (2) such non-Defaulting Lender’s LC
Exposure, including such non-Defaulting Lender’s pro rata
share of the Defaulting Lender’s allocated LC Exposure, does
not exceed such non-Defaulting Lender’s Commitment, and
(z) the conditions set forth in Section 7.02 are
satisfied at such time;
(ii) if the reallocation described
in clause (i) above cannot, or can only partially, be
effected, the Company shall, within one Business Day following
notice by the Administrative Agent, deposit cash collateral in an
amount equal to such Defaulting Lender&r
