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Exhibit 10.3
EXECUTION COPY
FIRST AMENDMENT (this "Amendment") dated as of June 29, 2001 in respect
of the FIVE-YEAR CREDIT AGREEMENT dated as of June 30, 2000 (the "Credit
Agreement"), among Xxx Radio, Inc., the banks party thereto (the "Banks"), The
Chase Manhattan Bank, as administrative agent, Citibank, N.A., as documentation
agent (the "Documentation Agent") and Bank of America, N.A., as syndications
agent (the "Syndications 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:
""Indexed Securities" means 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."
(ii) Deleting the definition of "CSI" and substituting therefor in
alphabetical order the following:
""JPMorgan" shall mean X.X. Xxxxxx Securities Inc."
(iii) 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
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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%.
(iv) 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")"
(v) 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 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."
(vi) 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
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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."
(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 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"
(e) 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.
(f) 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)".
(g) 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
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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
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."
(h) Amendment to Exhibit 13.02 [Addresses for Notices]. Exhibit
13.02 of the Credit Agreement is hereby amended by deleting such Exhibit 13.02
and substituting therefor Exhibit 13.02 hereto.
(i) Amendment to Section 13.04. Section 13.04 of the Credit
Agreement is hereby amended by deleting "CSI" therein and substituting therefor
"JPMorgan".
(j) 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)".
(k) 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 Amendment has been duly authorized, executed and
delivered by it and constitutes its legal, valid and binding obligations
enforceable in accordance with its terms.
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(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 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.
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
Agent, the Syndications 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.
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
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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 RADIO, INC.,
by /s/ Xxxxxxx Xxxxxxxx
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Name: Xxxxxxx Xxxxxxxx
Title:Vice President, Treasurer
[MAJORITY BANKS]
