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EXHIBIT 10.3
SECOND AMENDMENT
TO
CREDIT AGREEMENT
THIS SECOND AMENDMENT TO CREDIT AGREEMENT, effective as of September 10,
1999 (this "Amendment" or this "Second Amendment"), is by and between The
Xxxxxxxx Group, Inc., a Delaware corporation (the "Borrower"), certain financial
institutions party to the Credit Agreement (as hereinafter defined)
(collectively the "Lenders"), FIRST UNION NATIONAL BANK, a national banking
association, as administrative agent for the Lenders (the "Administrative
Agent"), FLEET BANK, N.A. as documentation agent ("Documentation Agent") and
UNION BANK OF CALIFORNIA, N.A., KEYBANK NATIONAL ASSOCIATION, and BANK OF
MONTREAL, CHICAGO BANK as co-agents ("Co-Agents").
This Amendment amends that certain Credit Agreement dated as of January
22, 1999, between the Borrower, the Lenders, the Administrative Agent, the
Documentation Agent and the Co-Agents (as previously amended, as amended hereby
and as further amended, modified, restated or supplemented from time to time,
the "Credit Agreement") and the other Credit Documents referred to therein. All
capitalized terms not otherwise defined in this Amendment shall have the
meanings assigned to them in the Credit Agreement.
RECITALS
A. Pursuant to the Credit Agreement, the Lenders have agreed, among other
things, to provide to the Borrower term and revolving credit facilities in an
aggregate principal amount of $325,000,000.
B. The Borrower has requested that Section 8.5 of the Credit Agreement
be amended to enable the Borrower to make additional miscellaneous investments
of an amount up to $5,000,000 in the aggregate.
C. The Lenders, the Administrative Agent, the Documentation Agent and
the Co-Agents are willing to agree to so amend the Credit Agreement on the
terms and conditions set forth herein.
STATEMENT OF AGREEMENT
NOW, THEREFORE, in consideration of the mutual covenants contained herein
and in the Credit Agreement, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, each of the Borrower,
the Lenders, the Administrative Agent, the Documentation Agent and the
Co-Agents hereby agree as follows:
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ARTICLE I.
AMENDMENTS TO CREDIT AGREEMENTS AND CREDIT DOCUMENTS
1.1. The Credit Agreement is hereby amended as follows:
(a) NEW DEFINED TERMS. The following definitions are hereby added, in the
appropriate alphabetical order, to SECTION 1.1 of the Credit Agreement:
"Second Amendment" shall mean the Second Amendment to Credit Agreement,
effective as of September 10, 1999, between the Borrower, the Administrative
Agent, the Documentation Agent, the Co-Agents and the Lenders.
(b) REVISED DEFINITIONS. The following definitions set forth in SECTION
1.1 to the Credit Agreement are hereby amended as follows:
(i) The definition of "Credit Documents" is deemed to include the
Second Amendment.
(c) INVESTMENTS. Section 8.5(a) of the Credit Agreement is hereby amended
by the deletion of the word "and" at the end of clause (vii) thereof, the
replacement of the period (".") at the end of clause (viii) thereof with ";
and" and the addition of the following as new clause (ix) thereof:
(ix) Other Investments not to exceed $5,000,000 in the aggregate at
any time.
1.2 AMENDMENTS TO LOAN DOCUMENTS. As of the date hereof all references to
the Credit Agreement in any of the Credit Documents shall refer to the Credit
Agreement as amended prior to the date hereof and as amended by this Amendment,
and all references to any of the Credit Documents in any of the other Credit
Documents shall refer to such Credit Documents as amended prior to the date
hereof and as amended hereby or in connection herewith.
ARTICLE II.
REPRESENTATIONS AND WARRANTIES
The Borrower hereby represents and warrants that:
2.1 COMPLIANCE WITH CREDIT AGREEMENT. After giving effect to this
Amendment, the Borrower is in compliance with all terms and provisions set
forth in the Credit Agreement to be observed or performed by it.
2.2 REPRESENTATIONS IN CREDIT AGREEMENT. The representations and
warranties of the Borrower set forth in the Credit Agreement are true and
correct as of the date hereof, except
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to the extent such representations and warranties relate solely to or are
specifically expressed as of a particular date or period.
2.3 NO EVENT OF DEFAULT. After giving effect to this Amendment and the
transactions contemplated hereby, no Event of Default exists under the Credit
Agreement.
2.4 CONTINUING SECURITY INTERESTS. All Loans and advances by the
Lenders to the Borrower under the Credit Agreement, as amended hereby, and the
Notes will continue to be secured by the Administrative Agent's security
interest in all of the Collateral granted under the Credit Agreement or other
Credit Documents, and nothing herein will affect the validity, perfection or
enforceability of such security interests.
2.5 CONSENTS. The execution and delivery of this Amendment and the
Borrower's performance hereunder does not require the consent or approval of
any Person (other than the Lenders pursuant to the Credit Agreement).
ARTICLE III.
CONDITIONS PRECEDENT
The effectiveness of the foregoing amendments, consents and waivers are
subject to the fulfillment of the condition precedent that the Borrower and the
Required Lenders shall have executed and delivered to the Administrative Agent
this Amendment (in a sufficient number of execution originals for each Lender).
ARTICLE IV.
GENERAL
4.1 FULL FORCE AND EFFECT. The Credit Agreement, as expressly amended
hereby, shall continue in full force and effect in accordance with the
provisions thereof on the date hereof. As used in the Credit Agreement,
"hereinafter," "hereof," and words of similar import shall, unless the context
otherwise requires, mean the Credit Agreement after amendment by this Amendment.
4.2 APPLICABLE LAW. This Amendment shall be governed by and construed
in accordance with the internal laws and judicial decisions of the State of
North Carolina.
4.3 COUNTERPARTS. This Amendment may be executed in two or more
counterparts, each of which shall constitute an original, but all of which when
taken together shall constitute but one instrument.
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4.4 EXPENSES. Borrower agrees to pay all reasonable out-of-pocket
expenses incurred by the Administrative Agent in connection with the
preparation, execution and delivery of this Amendment, including, without
limitation, all reasonable attorneys' fees.
4.5 FURTHER ASSURANCES. Each Borrower shall execute and deliver to
Administrative Agent such documents, certificates and opinions as the
Administrative Agent may reasonably request to effect the amendment
contemplated by this Amendment and to continue the existence, perfection and
first priority of the Administrative Agent's security interests in the
Collateral.
4.6 HEADINGS. The headings of this Amendment are for the purposes of
reference only and shall not affect the construction of this Amendment.
(signatures begin on next page)
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed and delivered by their duly authorized officers all as of the date
first above written.
THE XXXXXXXX GROUP, INC.
By: /s/ XXXXX XXXXXXXX
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Title: Xxxxx Xxxxxxxx -- Senior VP & CIO
(signatures continued)
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FIRST UNION NATIONAL BANK,
as Administrative Agent and as Lender
By: [SIGNATURE ILLEGIBLE]
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Title: Director
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(signatures continued)
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FLEET BANK, N.A.
By: /s/ Xxxxxx Xxxxxxxx
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Xxxxxx Xxxxxxxx
Title: Vice President
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(signatures continued)
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BANK OF MONTREAL, CHICAGO
BRANCH
By: /s/ XXX XXXXXXXXX
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Xxx Xxxxxxxxx
Title: Director
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(signatures continued)
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KEYBANK NATIONAL ASSOCIATION
By: /s/ XXXX X. XXXXX
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Xxxx X. Xxxxx
Title: Assistant Vice President
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(signatures continued)
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XXXXX XXXX XX XXXXXXXXXX, N.A.
By: /s/ XXXX XXXXXXX
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Xxxx Xxxxxxx
Title: Assistant Vice President
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(signatures continued)
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U.S. BANK NATIONAL ASSOCIATION
By: /s/ [Signature Illegible]
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Title: Vice President
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(signatures continued)
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BANK OF AMERICA, NT & SA
By: /s/ XXXXXX X. XXXXXXX
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Xxxxxx X. Xxxxxxx
Title: Vice President
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(signatures continued)
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XXX XXXX XX XXXX XXXXXX
By: /s/ XXX X. XXXXXXX
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Xxx X. Xxxxxxx
Title: Authorized Signatory
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(signatures continued)
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DRESDNER BANK AG, NEW YORK &
GRAND CAYMAN BRANCHES
By: /s/ XXXXX X. XXXXX
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Xxxxx X. Xxxxx
Title: First Vice President
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By: /s/ XXXXXXXXX XXXXXXXXX
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Xxxxxxxxx Xxxxxxxxx
Title: Assistant Vice President
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(signatures continued)
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THE CIT GROUP/EQUIPMENT
FINANCING, INC.
By: /s/ XXXXXX X. X. XXXXXXX
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Xxxxxx X. X. Xxxxxxx
Title: Assistant Vice President
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(signatures continued)
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BANQUE NATIONALE DE PARIS
By: /s/ XXXXX XXXXXXXXX
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Xxxxx Xxxxxxxxx
Title: VP / Team Leader
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By: /s/ XXXXX X. XXXXXXX
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Xxxxx X. Xxxxxxx
Title: Vice President
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(signatures continued)
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CITY NATIONAL BANK
By:
---------------------------------
Title:
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(signatures continued)
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FIRST HAWAIIAN BANK
By: /s/ XXXXXX XXXXXXXX
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Xxxxxx Xxxxxxxx
Title: Assistant Vice President
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(signatures continued)
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THE FUJI BANK, LIMITED
By: /s/ XXXXXXXX XXXXXX
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Xxxxxxxx Xxxxxx
Title: Senior Vice President
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(signatures continued)
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STATE STREET BANK AND TRUST COMPANY
By: /s/ XXXXX X. XXXXXX
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Xxxxx X. Xxxxxx
Title: Vice President
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(signatures continued)
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COMPAGNIE FINANCIERE DE CIC ET
DE I'UNION EUROPEENNE
By: /s/ XXXXXX XXXXXX
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Xxxxxx Xxxxxx
Title: Vice President
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By: /s/ XXXXX X'XXXXX
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Xxxxx X'Xxxxx
Title: Vice President
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(signatures continued)
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MICHIGAN NATIONAL BANK
By: /s/ XXXXXXX X. XXXXXX
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Xxxxxxx X. Xxxxxx
Title: Commercial Relationship Manager
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(signatures continued)
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WASHINGTON MUTUAL BANK
(DBA WESTERN BANK)
By: /s/ XXXXX X. XXXXXXX
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Xxxxx X. Xxxxxxx
Title: Vice President
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(signatures continued)
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NATEXIS BANQUE BFCE
By: /s/ XXXX X. XXXXX
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Xxxx X. Xxxxx
Title: Assistant Vice President
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By: /s/ XXXXXXX X. XXXXX
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Xxxxxxx X. Xxxxx
Title: VP, Group Manager
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Acknowledgement of Guaranty
Each of the undersigned, as a guarantor of the Obligations of The Xxxxxxxx
Group, Inc. (the "Company") under the Credit Agreement, dated as January 22,
1999, among the Company, certain financial institutions party thereto, First
Union National Bank, in its capacity as administrative agent, Fleet Bank, N.A.,
in its capacity as documentation agent, and Union Bank of California, N.A.,
KeyBank National Association and Bank of Montreal, Chicago Branch, as co-agents
(the "Credit Agreement"), hereby consents to the foregoing Second Amendment to
Credit Agreement, and further waives any defense to its guaranty liability
occasioned by such amendment (including without limitation the extension of the
maturity of the Loans as contemplated thereby). The foregoing consent and
waiver of the undersigned is made as of the date of the First Amendment.
XXXXXXXX AIRPORT ADVERTISING, INC. XXXXXXXX COMMUNICATIONS OF
MASSACHUSETTS, INC.
By: /s/ XXXXX XXXXXXXX By: /s/ XXXXX XXXXXXXX
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Title: Xxxxx Xxxxxxxx - Asst. Secretary Title: Xxxxx Xxxxxxxx - Asst. Secretary
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AK MEDIA GROUP, INC. CENTRAL NEW YORK NEWS, INC.
By: /s/ XXXXX XXXXXXXX By: /s/ XXXXX XXXXXXXX
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Title: Xxxxx Xxxxxxxx - Asst. Secretary Title: Xxxxx Xxxxxxxx - Asst. Secretary
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KVOS TV, LTD TC AVIATION, INC.
By: /s/ XXXXX XXXXXXXX By: /s/ XXXXX XXXXXXXX
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Title: Xxxxx Xxxxxxxx - Asst. Secretary Title: Xxxxx Xxxxxxxx - Asst. Secretary
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