EXHIBIT 4.1
WAIVER AND SEVENTH AMENDMENT, dated as of December 21, 2001
(this "Seventh Amendment") to the Amended and Restated Credit Agreement, dated
as of July 2, 1998 (as amended by the First Amendment and Assignment and
Acceptance, dated as of July 27, 1998, the Second Amendment, dated as of January
29, 1999, the Third Amendment, dated as of June 29, 1999, the Fourth Amendment,
dated as of December 21, 1999, the Waiver and Fifth Amendment, dated as of July
28, 2000, and the Waiver and Sixth Amendment, dated as of December 22, 2000, and
as may be further amended, supplemented or otherwise modified from time to time,
the "Credit Agreement"), among SUNRISE TELEVISION CORP. ("Holdings"), STC
BROADCASTING, INC. (the "Borrower"), the several banks and other financial
institutions from time to time parties thereto (the "Lenders"), BANK OF AMERICA,
N.A., as documentation agent, CITICORP USA, INC. (formerly known as Salomon
Brothers Holding Company Inc), as syndication agent, and JPMORGAN CHASE BANK
(formerly known as The Chase Manhattan Bank), as administrative agent (in such
capacity, the "Administrative Agent").
WITNESSETH:
WHEREAS, pursuant to the Credit Agreement the Lenders have
agreed to make, and have made, certain Loans to the Borrower; and
WHEREAS, Holdings and the Borrower have requested that the
Lenders amend and waive, and the Lenders have agreed to amend and waive, certain
of the provisions of the Credit Agreement upon the terms and subject to the
conditions set forth below;
NOW, THEREFORE, the parties hereto hereby agree as follows:
1. Defined Terms. Capitalized terms used herein and not
otherwise defined are used herein as defined in the Credit Agreement.
2. Waiver of Subsection 6.2(c) (Certificates; Other
information). The Lenders hereby waive, until June 30, 2002, compliance with the
requirements of subsection 6.2(c) of the Credit Agreement in respect of the
fiscal year ending December 31, 2002.
3. Waiver of Subsection 7.1 (Financial Condition
Covenants). The Lenders hereby waive compliance with the requirements of
subsections 7.1(a) and (c) of the Credit Agreement with respect to the fiscal
quarters ending December 31, 2001, March 31, 2002, and June 30, 2002.
4. Waiver of Subsection 7.6 (Limitation on Dividends). The
Lenders hereby waive compliance with the requirements of subsection 7.6 of the
Credit Agreement to the extent, and only to the extent, necessary to permit the
Borrower to make Restricted Payments to Holdings, the proceeds of which will be
used to make severance and noncompete payments to employees of Holdings.
5. Waiver of Subsection 7.17 (Limitation on LMA Stations).
The Lenders hereby waive compliance with the requirements of subsection 7.17 of
the Credit Agreement
to the extent, and only to the extent, necessary to permit the consummation of
the transactions contemplated by the LIN Television Management Services
Agreement (as defined below).
6. Waiver of Subsection 8(e) (Events of Default). The
Lenders hereby waive any Default or Event of Default pursuant to subsection 8(e)
of the Credit Agreement occurring during the Seventh Amendment Waiver Period (as
defined below) arising from the failure of Holdings to perform, observe or
otherwise comply with the terms of the Indebtedness issued pursuant to the
Special Subordinated Debt Issuance.
7. Amendment to Subsection 1.1 (Definitions). The
definition of the term "Consolidated EBITDA" set forth in subsection 1.1 of the
Credit Agreement is hereby amended by inserting at the end thereof the
following:
"Consolidated EBITDA may be adjusted on a pro forma basis, in
an aggregate amount of up to $5,000,000, to reflect cost
savings on account of items deducted in determining
Consolidated EBITDA before such adjustment (but after giving
effect to the payment by the Borrower of Management Fees and
Incentive Fees (each as defined in the LIN Television
Management Services Agreement)) that are implemented and
identified to the reasonable satisfaction of the
Administrative Agent as attributable to (i) management
services provided pursuant to the LIN Television Management
Services Agreement and (ii) reductions in the number of
employees of Holdings, the Borrower and its Subsidiaries."
a. The definition of the term "Change of Control" set
forth in subsection 1.1 of the Credit Agreement is hereby amended by deleting it
in its entirety and inserting, in lieu thereof, the following:
"Change of Control": the earliest to occur of (a) Xxxxx Muse,
its principals and their Affiliates and management of Holdings
and the Borrower ("HMTF") ceasing to own, beneficially and of
record, common stock of Holdings representing greater than 50%
of the aggregate equity value represented by the issued and
outstanding common stock of Holdings, (b) any "Person" or
"group" (as such terms are used in Sections 13(d) and 14(d) of
the Securities Exchange Act of 1934, as amended), excluding
(i) the holders of record and "beneficial holders" (as defined
in Rules 13(d)-3 and 13(d)-5 under such Act) of the
outstanding voting stock of Holdings on December 21, 2001 and
(ii) Continuing Directors, becoming the beneficial owner,
directly or indirectly, of more than 50% of the then
outstanding voting stock of Holdings and (c) a Change in
Control as defined in any document pertaining to any Senior
Subordinated Indebtedness.
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b. The definition of the term "Permitted Issuance" set
forth in subsection 1.1 of the Credit Agreement is hereby amended by (a)
deleting the word "and" immediately prior to clause (i) thereof and inserting,
in lieu thereof, a comma and (b) inserting at the end thereof the following:
"and (j) the issuance by Holdings of options, warrants or
other equity securities of Holdings (and the issuance of
Capital Stock of Holdings upon the exercise of any thereof) in
connection with the transactions contemplated by the LIN
Television Management Services Agreement."
c. The following new defined terms are inserted in
Section 1.1 of the Credit Agreement in proper alphabetical order:
"LIN Television Management Services Agreement": the Management
Services Agreement by and among the Borrower, Holdings and LIN
Television Corporation ("LIN Television") in substantially the
form attached as Exhibit A to the Seventh Amendment, and as
the same may be amended, restated, supplemented or otherwise
modified from time to time; provided that any modification to
such Management Services Agreement which could reasonably be
expected to adversely affect the interests of the Lenders
shall not be effective unless consented to in writing by the
Required Lenders.
"Seventh Amendment": the Waiver and Seventh Amendment, dated
as of December 21, 2001, to this Agreement.
"Seventh Amendment Effective Date": as defined in the Seventh
Amendment.
"Seventh Amendment Waiver Period": the period commencing on
the Seventh Amendment Effective Date through and including
August 14, 2002.
8. Amendment to Subsection 2.4 (Revolving Credit Commitments).
(a) Subsection 2.4(a) of the Credit Agreement is hereby amended by inserting at
the end of the first sentence thereof the following:
"; provided, that at no time during the Seventh Amendment
Waiver Period may the Total Revolving Extensions of Credit
exceed $13,000,000."
(a) Subsection 2.4(c) of the Credit Agreement is hereby
amended by inserting at the end of the first sentence thereof the following:
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"; provided, further, that at no time during the Seventh
Amendment Waiver Period may the Total Revolving Extensions of
Credit exceed $13,000,000."
9. Amendment to Subsection 2.9 (Mandatory Prepayments and
Commitment Reductions). Subsection 2.9(b) of the Credit Agreement is hereby
amended by inserting at the end thereof the following:
"; provided, further, that notwithstanding any other provision
of this subsection 2.9(b), if on any date during the Seventh
Amendment Waiver Period Holdings, the Borrower or any of its
Subsidiaries shall receive Net Cash Proceeds from any Asset
Sale or Recovery Event then such Net Cash Proceeds shall be
applied, within five Business Days after such date, toward the
prepayment of the Term Loans and the reduction of the
Revolving Credit Commitments as set forth in subsection
2.9(d)."
10. Amendment to Subsection 3.1 (L/C Commitment). Subsection
3.1(a) of the Credit Agreement is hereby amended by inserting at the end of the
first sentence thereof the following:
"or (iii) during the Seventh Amendment Waiver Period, the
Total Revolving Extensions of Credit would exceed
$13,000,000."
11. Amendment to Subsection 7.1 (Financial Condition
Covenants). Subsection 7.1(b) of the Credit Agreement is hereby amended by
deleting it in its entirety and inserting, in lieu thereof, the following new
subsection 7.1(b):
"(b) Consolidated Interest Coverage Ratio. Permit the
Consolidated Interest Coverage Ratio as of the last day of any
Test Period set forth below to be less than the ratio set
forth below opposite such period:
Consolidated Interest
Period Coverage Ratio
------ ---------------------
Closing Date to 12/31/99 1.35x
1/01/00 to 12/31/00 1.50x
1/01/01 to 9/30/01 1.75x
10/01/01 to 6/30/02 1.25x
7/01/02 and thereafter 2.00x"
(b) Subsection 7.1(d) of the Credit Agreement is hereby
amended by deleting it in its entirety and inserting, in lieu thereof, the
following new subsection 7.1(d):
"(d) Consolidated Senior Leverage Ratio. Permit the
Consolidated Senior Leverage Ratio as of the last day of any Test Period set
forth below to exceed the ratio set forth opposite such period:
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Consolidated Senior
Period Leverage Ratio
------ -------------------
Closing Date to 9/30/01 5.00x
10/01/01 to 6/30/02 2.50x
7/01/02 and thereafter 4.75x"
(c) Subsection 7.1(e) of the Credit Agreement is hereby
amended by deleting it in its entirety.
12. Amendment to Subsection 7.2 (Limitation on Indebtedness).
Subsection 7.2 of the Credit Agreement is hereby amended by (a) inserting after
the words "Transaction Documents" in clause (i) of subsection 7.2(l) of the
Credit Agreement the following: ", the LIN Television Management Services
Agreement" and (b) inserting at the end of subsection 7.2 of the Credit
Agreement the following:
"; provided that during the Seventh Amendment Waiver Period
neither Holdings nor the Borrower shall, or shall permit any
of its Subsidiaries to, directly or indirectly, create, incur
or assume any Indebtedness pursuant to subsections 7.2(d),
(f), (i), (m) and (n); provided, further, that during such
period the aggregate principal amount of Indebtedness and
Capital Lease Obligations incurred pursuant to subsection
7.2(c) shall not exceed $3,000,000 at any one time
outstanding."
13. Amendment to Subsection 7.6 (Limitation on Dividends).
Subsection 7.6 of the Credit Agreement is hereby amended by inserting at the end
thereof the following:
"; provided, however, that during the Seventh Amendment Waiver
Period Restricted Payments may only be made pursuant to
clauses (a)(i), (a)(iii), (a)(iv), (b) and (c) (to the extent
such Permitted Issuances are issuances other than as set forth
in clause (i) of the definition of Permitted Issuance)."
14. Amendment to Subsection 7.9 (Limitation on Transactions
with Affiliates). Subsection 7.9(b) of the Credit Agreement is hereby amended by
(a) deleting the word "and" at the end of clause (ii) thereof, (b) deleting the
period at the end of clause (iii) thereof and inserting, in lieu thereof, the
following: "; and" and inserting at the end thereof a new clause (iv) as
follows:
"(iv) the execution and delivery by the Borrower and Holdings
and the performance of their respective obligations under the
LIN Television Management Services Agreement."
15. Amendment to Annex A (Pricing Grid). Annex A to the Credit
Agreement is hereby amended by inserting at the end thereof the following:
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"Notwithstanding the foregoing, during the Seventh Amendment
Waiver Period, the Applicable Margin for Eurodollar Loans
shall be 2.75% , the Applicable Margin for ABR Loans shall be
1.50% and the Commitment Fee Rate shall be 0.50%."
16. Effectiveness. This Seventh Amendment shall become
effective on the date on which the following conditions precedent shall have
been satisfied (such date, the "Seventh Amendment Effective Date"):
(a) the Administrative Agent shall have received
counterparts of this Seventh Amendment, duly executed and delivered by Holdings,
the Borrower and the Required Lenders;
(b) the Administrative Agent shall have received the
Acknowledgment and Consent, attached as Exhibit B hereto, duly executed and
delivered by each Loan Party;
(c) the Borrower and Holdings shall have entered into the
LIN Television Management Services Agreement;
(d) the Administrative Agent shall have received a
favorable legal opinion of Xxxxx & Xxxxxxx LLP, special FCC counsel to Holdings
and the Borrower, satisfactory in form and substance to the Administrative
Agent;
(e) the Administrative Agent shall have received an
amendment fee for the account of each Lender that executes and delivers this
Seventh Amendment prior to 5:00 p.m. on December 21, 2001, in an amount equal to
0.25% of such Lender's Commitment; provided that no such fee shall be due and
payable if the Seventh Amendment Effective Date shall not occur; and
(f) all corporate and other proceedings, and all
documents, instruments and other legal matters in connection with the
transactions contemplated by this Seventh Amendment shall be satisfactory in
form and substance to the Administrative Agent.
17. Representations and Warranties. On and as of the date
hereof after giving effect to this Seventh Amendment, each of Holdings and the
Borrower hereby represents and warrants to the Lenders that:
(a) Each of its representations and warranties contained
in Section 4 of the Credit Agreement or in any certificate, document or
financial or other statement furnished at any time under or in connection
therewith are true and correct in all material respects on and as of such date
as if made on and as of such date, except to the extent that such
representations and warranties specifically relate to an earlier date, in which
case such representations and warranties shall be true and correct in all
material respects as of such earlier date; provided that the references to the
Credit Agreement therein shall be deemed to be references to the Credit
Agreement after giving effect to this Seventh Amendment; and
(b) No Default or Event of Default has occurred and is
continuing.
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18. Continuing Effect; No Other Amendments. Except as
expressly amended or waived hereby, all of the terms and provisions of the
Credit Agreement and the other Loan Documents are and shall remain in full force
and effect. The amendments and waivers contained herein shall not constitute an
amendment or waiver of any other provision of the Credit Agreement or the other
Loan Documents or for any purpose except as expressly set forth herein.
19. GOVERNING LAW. THIS SEVENTH AMENDMENT SHALL BE GOVERNED
BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF
NEW YORK.
20. Counterparts. This Seventh Amendment may be executed in
any number of counterparts, all of which counterparts, taken together, shall
constitute one and the same instrument. This Seventh Amendment may be delivered
by facsimile transmission of the relevant signature pages hereof.
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IN WITNESS WHEREOF, the parties have caused this Seventh
Amendment to be duly executed and delivered by their respective proper and duly
authorized officers as of the day and year first above written.
SUNRISE TELEVISION CORP.
By: /s/ Xxxxx X Xxxx
-------------------------------
Name: Xxxxx X Xxxx
Title: Chief Financial Officer
STC BROADCASTING, INC.
By: /s/ Xxxxx X. Xxxx
-------------------------------
Name: Xxxxx X. Xxxx
Title: Chief Financial Officer
JPMORGAN CHASE BANK (formerly known as
The Chase Manhattan Bank), as
Administrative Agent and as a Lender
By: /s/ Xxxxxx Xxxxx
-------------------------------
Name: Xxxxxx Xxxxx Xxxxx
Title: Vice President
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BANK OF AMERICA, N.A., as Documentation
Agent and as a Lender
By: /s/ Xxxxxxx X. Xxxx
-------------------------------
Name: Xxxxxxx X. Xxxx
Title: Principal
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CITICORP USA, INC., as Syndication Agent
and as a Lender
By: /s/ Xxxx X. Xxxxx
-------------------------------
Name: Xxxx X. Xxxxx
Title: Vice President
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FINOVA CAPITAL CORPORATION, as a Lender
By: /s/ Xxxxxxx Xxxxxx
-------------------------------
Name: Xxxxxxx Xxxxxx
Title: Senior Vice President
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THE CIT GROUP/EQUIPMENT FINANCING, INC.,
as a Lender
By: /s/ Xxxxxxx X. Xxxxxxx
-------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
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BNP PARIBAS, as a Lender
By: /s/ Xxx Xxxxxx
-------------------------------
Name: Xxx Xxxxxx
Title: Director
By: /s/ Xxxxx Xxxxxxxxx
-------------------------------
Name: Xxxxx Xxxxxxxxx
Title: Head of Asset Management
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NATEXIS BANQUE BFCE, as a Lender
By: /s/ Xxxx Xxxxx
-------------------------------
Name: Xxxx X. Xxxxx
Title: Vice President
By: /s/ Xxxxxxx X. Xxxxxxxxx
-------------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: Vice President
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GENERAL ELECTRIC CAPITAL CORPORATION, as
a Lender
By: /s/ Xxxxxxx X. Xxxx
-------------------------------
Name: Xxxxxxx X. Xxxx
Title: Authorized Signatory
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FLEET NATIONAL BANK (successor by merger
to SUMMIT BANK), as a Lender
By: /s/ Xxxxxxx X. Xxxxxxx
-------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Director
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BANK OF HAWAII, as a Lender
By: /s/ J. Xxxxx Xxxxxxx
-------------------------------
Name: J. Xxxxx Xxxxxxx
Title: Vice President
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SUNTRUST BANK, as a Lender
By: /s/ J. Xxxx Xxxxxxx
-------------------------------
Name: J. Xxxx Xxxxxxx
Title: Director
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COOPERATIEVE CENTRALE RAIFFEISEN-
BOERENLEENBANK B.A., "RABOBANK
NEDERLAND",
NEW YORK BRANCH, as a Lender
By: /s/ Xxxx Xxxxxxxx
-------------------------------
Name: Xxxx Xxxxxxxx
Title: Executive Director
By: /s/ Xxxxx X. Xxxxxxxxxx
-------------------------------
Name: Xxxxx X. Xxxxxxxxxx
Title: Managing Director
PB CAPITAL CORPORATION
By: /s/ Xxxxxxxx Xx
-------------------------------
Name: Xxxxxxxx Xx
Title: Associate
By: /s/ Xxxxxxx Xxxxx
-------------------------------
Name: Xxxxxxx Xxxxx
Title: Managing Director
Portfolio Management
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Exhibit A
to
Waiver and Seventh Amendment
FORM OF MANAGEMENT SERVICES AGREEMENT
[Intentionally Omitted]
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Exhibit B
to
Waiver and Seventh Amendment
ACKNOWLEDGMENT AND CONSENT
Reference is made to the Waiver and Seventh Amendment, dated
as of December 7, 2001 (the "Seventh Amendment"), to the Amended and Restated
Credit Agreement, dated as of July 2, 1998 (as heretofor amended, supplemented
or otherwise modified, the "Credit Agreement"), among SUNRISE TELEVISION CORP.
("Holdings"), STC BROADCASTING, INC. (the "Borrower"), the several banks and
other financial institutions from time to time parties thereto (the "Lenders"),
BANK OF AMERICA, N.A., as documentation agent, CITICORP USA, INC. (formerly
known as Salomon Brothers Holding Company Inc), as syndication agent, and
JPMORGAN CHASE BANK (formerly known as THE CHASE MANHATTAN BANK), as
administrative agent (in such capacity, the "Administrative Agent").
Each of the undersigned Loan Parties hereby (i) acknowledges
the terms and provisions of the Seventh Amendment and consents thereto and (ii)
confirms and agrees that each Security Document to which it is a party is, and
shall continue to be, in full force and effect after giving effect to the
Seventh Amendment and all prior modifications to the Credit Agreement.
Capitalized terms not otherwise defined herein shall have the meanings assigned
to them in the Credit Agreement.
STC BROADCASTING, INC.
SUNRISE TELEVISION CORP.
XXXXX ACQUISITION COMPANY
STC LICENSE COMPANY
XXXXX ACQUISITION LICENSE COMPANY
STC BROADCASTING OF ABILENE, INC.
WJAC, INCORPORATED
By: s/ Xxxxx X. Xxxx
-------------------------------------
Name: Xxxxx X. Xxxx
Title: Chief Financial Officer
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