EXHIBIT 10.1
AMENDED AND RESTATED 364-DAY CREDIT
AGREEMENT dated as of June 27, 2003 (this "2003
Amendment and Restatement"), among Xxx Radio, Inc.
(the "Company"), the banks party hereto (the
"Banks"), JPMorgan Chase Bank (the "Administrative
Agent"), as administrative agent and Wachovia Bank,
National Association and Bank of America, N.A. 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 $150,000,000 (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) Amendment to Article I. Article I of the Credit Agreement is
hereby amended by:
(i) Amending the definition of the term "Agent's Fee Letter" to read
as follows:
""Administrative Agent's Fee Letter" shall mean the fee letter dated
as of May 15, 2003 among JPMCB, X.X. Xxxxxx Securities Inc. ("JPMorgan"),
and the Company."
and as so amended, moving the definition to its proper alphabetical position.
Each reference in the Credit Agreement to the defined term "Agent's Fee Letter"
is amended to refer to "Administrative Agent Fee Letter".
(ii) 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 Commitment 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."
(iii) Deleting the definition of "Existing Facility" and
substituting therefor the following, and making a corresponding amendment to the
first preamble to the Credit Agreement:
""Existing Facility" shall mean the Amended and Restated 364-Day
Credit Agreement dated as of June 28, 2002, among the Company and the
banks and the agents party thereto."
(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."
(b) Amendment to Section 2.01(a). Section 2.01(a) is hereby amended
by deleting the text "and Discretionary Loans and Letters of Credit" and
substituting therefor the text ", Discretionary Loans and LC Exposure".
(c) 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.
(d) Amendment to Section 2.08(c). Section 2.08(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."
(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 substituting
therefor the following:
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"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".
(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.
(h) Amendment to Section 6.14. Section 6.14 is hereby amended by
replacing "June, 2002" with "June, 2003".
(i) Amendment to Section 8.01(b). Section 8.01(b) of the Credit
Agreement is hereby amended by deleting the entire clause and substituting
therefor the following:
"(b) an Interest Coverage Ratio for any four consecutive fiscal
quarter (commencing with such period ending on June 30, 2003) period of
not less than 2.0 to 1.0."
(j) 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.
(k) 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.
(l) Amendment to Section 13.04. Section 13.04 is hereby amended by
replacing the date "June 23, 2002" with the date "May 15, 2003".
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.
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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 DOCUMENTATION AGENTS, THE SYNDICATION AGENTS AND THE 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, (a) the terms "Agreement", "herein", "hereinafter",
"hereunder", "hereto", and words of similar import shall mean, from and after
the date hereof, the
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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 & Xxxxx, 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.
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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.
XXX RADIO, INC.,
By
/s/ Xxxxxxx Xxxxxxxx
---------------------------
Name: Xxxxxxx Xxxxxxxx
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
CITIBANK, N.A.
By
/s/ Xxxxxxx Xxxxxxx
---------------------------
Name: Xxxxxxx Xxxxxxx
Title: Director
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FLEET NATIONAL BANK
By
/s/ Xxxxx Xxxxxx
---------------------------
Name: Xxxxx Xxxxxx
Title: Vice President
BANK ONE, NA
By
/s/ Xxxxxxxx X. Xxxxx
---------------------------
Name: Xxxxxxxx X. Xxxxx
Title: Director
XXXXXX BROTHERS BANK, FSB
By
/s/ Xxxx X. Xxxxxx
---------------------------
Name: Xxxx X. Xxxxxx
Title: Vice President
XXXXXXX XXXXX BANK USA
By
/s/ Xxxxx Xxxxx
---------------------------
Name: Xxxxx Xxxxx
Title: Vice President
XXXXXX XXXXXXX BANK
By
/s/ Jaap L. Tonckens
---------------------------
Name: Jaap L. Tonckens
Title: Vice President
Xxxxxx Xxxxxxx Bank
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SUNTRUST BANK
By
/s/ Xxxx Xxxxxxx
---------------------------
Name: Xxxx Xxxxxxx
Title: Director
UBS AG, CAYMAN ISLANDS BRANCH
By
/s/ Xxxxxxxx X'Xxxxx
---------------------------
Name: Xxxxxxxx X'Xxxxx
Title: Director
By
/s/ Xxxxxxx X. Saint
---------------------------
Name: Xxxxxxx X. Saint
Title: Associate Director
Banking Products
Services, US
COMMERZBANK AG, NEW YORK AND
GRAND CAYMAN BRANCHES
By
/s/ Xxxxx Xxxxxx
---------------------------
Name: Xxxxx Xxxxxx
Title: Senior Vice President
and Manager
By
---------------------------
Name: Xxxxx Xxxxxxxx
Title: Senior Vice President
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XXX XXXX XX XXX XXXX
By
/s/ Xxxx X. Xxxxxx
---------------------------
Name: Xxxx X. Xxxxxx
Title: Vice President
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
U.S. BANK NATIONAL ASSOCIATION
By
/s/ Xxxx Xxxxxxxx
---------------------------
Name: Xxxx Xxxxxxxx
Title: Vice President
NATIONAL AUSTRALIAN BANK LTD.
By
/s/ Xxxxxxx Xxxxxxx
---------------------------
Name: Xxxxxxx Xxxxxxx
Title: Director
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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
XXXXXXX STREET COMMITMENT CORPORATION
By
/s/ Xxxxxxxx X. Xxxx
---------------------------
Name: Xxxxxxxx X. Xxxx
Title: Vice President and
Chief Financial Officer
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