Exhibit 10.3
THIRD AMENDMENT (this "Amendment") dated as
of June 27, 2003 in respect of the FIVE-YEAR CREDIT
AGREEMENT dated as of September 26, 2000, and amended
from time to time (the "Credit Agreement"), among Xxx
Communications, Inc. (the "Company"), the banks party
thereto (the "Banks"), JPMorgan Chase Bank, as
administrative agent, The Bank of New York and
Wachovia Bank, National Association, 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. Amendment to Article I. Article I of the Credit
Agreement is hereby amended by 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."
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 due and payable to the Administrative Agent and to the Banks on or
prior to the date hereof, including, to the extent invoiced, reimbursement or
payment of all reasonable out-of-pocket expenses required to be reimbursed or
paid by the Company hereunder.
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 AND THE
MAJORITY BANKS UNDER THE LAWS OF THE XXXXX XX XXX XXXX XXX XX XXX XXXXXX XXXXXX
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
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 LLP. 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 X. Xxxxx
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Name: Xxxxx X. Xxxxx
Title: Treasurer
JPMORGAN CHASE BANK
By: /s/ Xxxxx X. Xxxxx
----------------------------------
Name: Xxxxx X. Xxxxx
Title: Managing Director
BANK OF AMERICA, N.A.
By: /s/ Xxxxxxx X. Xxxx
----------------------------------
Name: Xxxxxxx X. Xxxx
Title: Vice President
WACHOVIA BANK, NATIONAL ASSOCIATION
By: /s/ Xxxxx X. Xxxx
----------------------------------
Name: Xxxxx X. Xxxx
Title: Vice President
BANK ONE, NA
By: /s/ Xxxxxxxx X. Xxxxx
----------------------------------
Name: Xxxxxxxx X. Xxxxx
Title: Director
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CITIBANK, N.A.
By: /s/ Xxxxxxx Xxxxxxx
----------------------------------
Name: Xxxxxxx Xxxxxxx
Title: Director
THE BANK OF NEW YORK
By: /s/ Xxxx X. Xxxxxx
----------------------------------
Name: Xxxx X. Xxxxxx
Title: Vice President
BANK OF TOKYO-MITSUBISHI TRUST COMPANY
By: /s/ Xxxxx Xxxxxxxxxx
----------------------------------
Name: Xxxxx Xxxxxxxxxx
Title: Vice President
FLEET NATIONAL BANK
By: /s/ Xxxxx Xxxxxx
----------------------------------
Name: Xxxxx Xxxxxx
Title: Vice President
SUNTRUST BANK
By: /s/ Xxxx Xxxxxxx
----------------------------------
Name: Xxxx Xxxxxxx
Title: Director
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XXX XXXX XX XXXX XXXXXX
By: /s/ Xxxxxxx X. Xxxxxxxxxx, Xx.
----------------------------------
Name: Xxxxxxx X. Xxxxxxxxxx, Xx.
Title: Authorized Signatory
COMMERZBANK AG, NEW YORK AND GRAND
CAYMAN BRANCHES
By: /s/ Xxxxx Xxxxxx
----------------------------------
Name: Xxxxx Xxxxxx
Title: Senior Vice President and
Manager
By: /s/ Xxxxx Xxxxxxxx
----------------------------------
Name: Xxxxx Xxxxxxxx
Title: Senior Vice President
CREDIT SUISSE FIRST BOSTON, ACTING
THROUGH ITS CAYMAN ISLANDS BRANCH
By: /s/ Sovonna Day-Xxxxx
----------------------------------
Name: Sovonna Day-Xxxxx
Title: Vice President
By: /s/ Xxxxxx X.Xxxxx
----------------------------------
Name: Xxxxxx X. Xxxxx
Title: Associate
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DRESDNER BANK AG, NEW YORK AND
GRAND CAYMAN BRANCHES
By: /s/ Xxxxxxx X. Xxxxxxx
----------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
By: /s/ Xxxxxxx X. Xxxxxxxxx
----------------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: Vice President
MIZUHO CORPORATE BANK, LTD.
By: /s/ Xxxx Xxxxxxx
----------------------------------
Name: Xxxx Xxxxxxx
Title: Vice President
SUMITOMO MITSUI BANKING CORPORATION
By: /s/ Xxx X. Xxxxxxxxx
----------------------------------
Name: Xxx X. Xxxxxxxxx
Title: Senior Vice President
BANK OF OKLAHOMA, N.A.
By: /s/ Xxxx X. Fish
----------------------------------
Name: Xxxx X. Fish
Title: Senior Vice President
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HIBERNIA NATIONAL BANK
By: /s/ Xxxxxxx X. Xxxxxxxx
----------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Vice President
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