Exhibit 10.2
WAIVER AND FOURTH AMENDMENT TO CREDIT AGREEMENT
THIS WAIVER AND FOURTH AMENDMENT TO CREDIT AGREEMENT ("Waiver") is made
this 15th day of November, 2001, by and among XXXXXX COMMUNICATIONS, INC,
formerly known as Xxxxxx Companies Inc. ("Borrower"), and BANK OF AMERICA, N.A.,
formerly known as Bank of America National Trust and Savings Association, and
U.S. BANK NATIONAL ASSOCIATION (each individually a "Bank" and collectively the
"Banks") and BANK OF AMERICA, N.A., formerly known as Bank of America National
Trust and Savings Association, as agent for Banks ("Agent").
Recitals
A. Borrower, Banks and Agent are parties to that certain Credit
Agreement dated as of May 26, 1998, as amended by that certain First Amendment
to Credit Agreement dated as of June 25, 1999, by that certain Second Amendment
to Credit Agreement dated as of September 30, 1999 and by that certain Third
Amendment to Credit Agreement dated as of January 29, 2001 (as amended, modified
or extended from time to time the "Credit Agreement") and the related Loan
Documents described therein.
B. The Credit Agreement contains certain financial covenants binding
upon Borrower, and it is known that Borrower was in breach of the Adjusted
Leverage Ratio and Interest Coverage Ratio set forth in the Credit Agreement as
of its fiscal quarter ended September 30, 2001.
C. Borrower has requested that Agent and Banks waive such defaults,
which Agent and Banks have agreed to do upon the terms and conditions set forth
in this Waiver.
NOW, THEREFORE, in consideration of the mutual agreements, provisions
and covenants contained herein, the parties agree as follows:
Agreement
1. Definitions. Capitalized terms used herein and not otherwise defined
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shall have the meanings given in the Credit Agreement.
2. Waiver of Defaults. Subject to the terms and conditions of this
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Waiver, Agent and Banks hereby waive Borrower's compliance with its obligations
under Section 7.2(a) and Section 7.2(b) of the Credit Agreement as of Borrower's
fiscal quarter ended September 30, 2001.
3. Consent to Dividends. Agent and Banks hereby acknowledge that
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Borrower has paid cash dividends in the approximate amount of $6,750,000 in the
calendar year 2001 prior to the date of this Waiver and intends to pay
additional cash dividends in the approximate amount of $2,250,000 on or about
December 7, 2001. To the extent required, Agent and Banks hereby consent to the
declaration and payment of such dividends.
4. Amendments to Credit Agreement. The Credit Agreement is amended as
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follows:
4.1 Amendments to Article 1. In Article 1, amendments are made to
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the definitions, as follows:
(a) The definition of "Adjusted Reference Rate" is added to
read as follows:
1.1b Adjusted Reference Rate shall mean for any day that per annum
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rate equal to the sum of (a) the Reference Rate Margin and (b) the
Reference Rate. The Adjusted Reference Rate shall change with any change in
the Reference Rate.
(b) The definition of "Floating Rate Loan" is amended and
restated to read as follows:
1.13 Floating Rate Loans shall mean those portions of principal of
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the Revolving Notes accruing interest at the Adjusted Reference Rate.
(c) The definition of "LIBOR Margin" is added to read as
follows:
1.19a LIBOR Margin means on any date, a per annum interest rate
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determined in accordance with the following table:
Borrower's
Leverage Rating LIBOR Margin
--------------- ------------
Xxxxx 0 2.25%
Xxxxx 0 2.50%
Xxxxx 0 2.75%
Xxxxx 0 3.00%
Xxxxx 0 3.25%
Level 6 3.50%
(d) The definition of "Margin" is amended and restated to read
as follows:
1.24 Fee Margin means on any date, a per annum interest rate
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determined in accordance with the following table:
Borrower's
Leverage Rating Fee Margin
--------------- ----------
Xxxxx 0 .250%
Xxxxx 0 .375%
Xxxxx 0 .375%
Xxxxx 0 .375%
Xxxxx 0 .500%
Xxxxx 0 .500%
(e) The definition of "Reference Rate Margin" is added to read
as follows:
1.29a Reference Rate Margin means on any date, a per annum interest
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rate determined in accordance with the following table:
Borrower's Reference
Leverage Rating Rate Margin
--------------- -----------
Xxxxx 0 0.00%
Xxxxx 0 0.00%
Xxxxx 0 0.25%
Xxxxx 0 0.50%
Xxxxx 0 0.75%
Xxxxx 0 1.00%
4.2 Amendments to Article 4. In Article 4, Sections 4.1 and 4.5 are
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amended and restated to read as follows:
4.1 Interest Rates and Payment Date. The Revolving Notes shall each
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bear interest from the date of Advance on the unpaid principal balance
outstanding from time to time at the Adjusted Reference Rate or Adjusted
LIBOR Rate as selected by Borrower and all accrued interest shall be
payable in arrears on each Interest Payment Date.
4.5 Conversion to Reference Rate. The Revolving Notes shall each
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bear interest at the Adjusted Reference Rate unless an Adjusted LIBOR Rate
is specifically selected. At the termination of any Interest Period, each
LIBOR Rate Loan shall convert to a Floating Rate Loan unless Borrower
directs otherwise pursuant to Section 4.2.
2
5. Delivery of Compliance Certificate. Borrower hereby agrees to furnish
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to Agent on or before January 31, 2002, with sufficient copies for Agent and
each Bank a certificate of the chief financial officer of Borrower, in the form
of Exhibit A attached, certifying that as of the fiscal year ended December 31,
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2001 no Default and no event which, with notice or lapse of time or both, would
constitute a Default, had occurred and was continuing, and, further, setting
forth calculations demonstrating compliance as at the end of such fiscal year
with the financial covenants set forth in Section 7.2. Borrower expressly agrees
that it shall be an additional Default under the Credit Agreement if any
representation or warranty made hereunder shall prove to have been incorrect in
any material respect when made.
6. Payment of Waiver Fee. Borrower hereby agrees to pay to Agent for the
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account of Banks a waiver fee equal to one-tenth of one percent (0.10%) of the
amount of such Bank's Pro Rata Share of the Credit Limit. The waiver fee
described in this Section 6 shall be payable to each Bank (other than Bank of
America, N.A.) on the Closing Date (as defined below) and (b) to Bank of
America, N.A. on January 31, 2002 if on such date any lender that is a party to
that certain Credit Agreement dated as of June 24, 1999 by and among Borrower,
as borrower, Agent, as agent, and the various lenders a party thereto, shall
have any commitment to extend credit under such Credit Agreement, or any loan or
other obligation of Borrower thereunder or under any other agreement, instrument
or document executed by Borrower in connection therewith shall remain unpaid or
unsatisfied, other than obligations arising under swap contracts permitted under
such Credit Agreement. The waiver fees payable under this Section 6 shall be
deemed fully earned when due and non-refundable when paid.
7. Effective Date. This Waiver will become effective as of November 1,
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2001 (the "Closing Date"); provided that each of the following conditions
precedent is satisfied:
7.1 Delivery of Waiver. Agent has received from Borrower and each
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Bank a duly executed original (or, if elected by Agent, an executed facsimile
copy) of this Waiver.
7.2 Waiver Fee. Agent (for the account of Banks) has received from
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Borrower the waiver fees set forth in Section 6 hereof.
7.3 Guarantors' Consent. Xxxxxx Broadcasting Inc., Xxxxxx Xxxxx, Inc.
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and Xxxxxx Properties Inc. shall have each executed the subjoined Guarantors'
Consent; and
7.4 Other Documents. Agent and each Bank shall have received such
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other documents, instruments, and undertakings as Agent and such Bank may
reasonably request.
8. Representations and Warranties. Borrower hereby represents and
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warrants to Banks and Agent that each of the representations and warranties set
forth in Article 6 of the Credit Agreement is true and correct in each case as
if made on and as of the date of this Waiver and Borrower expressly agrees that
it shall be an additional Default under the Credit Agreement if any
representation or warranty made hereunder shall prove to have been incorrect in
any material respect when made.
9. No Further Amendment. Except as expressly modified by this Waiver, the
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Credit Agreement and the other Loan Documents shall remain unmodified and in
full force and effect and the parties hereby ratify their respective obligations
thereunder. Without limiting the foregoing, Borrower expressly reaffirms and
ratifies its obligation to pay or reimburse Agent and each Bank on request for
all reasonable expenses, including legal fees, actually incurred by Agent or
such Bank in connection with the preparation of this Waiver and the closing of
the transactions contemplated hereby and thereby.
10. Reservation of Rights. Borrower acknowledges and agrees that the
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execution and delivery by Agent and Banks of this Waiver shall not be deemed to
create a course of dealing or otherwise obligate Agent or any Bank to forbear or
execute similar amendments under the same or similar circumstances in the
future.
3
11. Borrower Resolutions. Borrower agrees to deliver to Agent on or before
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December 11, 2001 a copy of a resolution passed by the board of directors of
Borrower, certified by the Secretary or an Assistant Secretary of Borrower,
ratifying the execution, delivery and performance of this Waiver. Borrower
further agrees that it shall be an additional Default under the Credit Agreement
if Borrower shall fail to deliver such resolutions to Agent on or before such
date.
12. Miscellaneous.
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12.1 Entire Agreement. This Amendment comprises the entire agreement
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of the parties with respect to the subject matter hereof and supersedes all
prior oral or written agreements, representations or commitments.
12.2 Counterparts. This Amendment may be executed in any number of
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counterparts and by different parties hereto in separate counterparts, each of
which when so executed shall be deemed to be an original, and all of which taken
together shall constitute one and the same Amendment.
12.3 Governing Law. This Amendment and the rights and obligations of
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the parties hereto shall be construed and interpreted in accordance with the
internal laws of the State of Washington.
12.4 Oral Agreements Not Enforceable.
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ORAL AGREEMENTS OR ORAL COMMITMENTS TO LOAN MONEY, EXTEND CREDIT, OR TO
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FOREBEAR FROM ENFORCING REPAYMENT OF A DEBT ARE NOT ENFORCEABLE UNDER
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WASHINGTON LAW.
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EXECUTED AND DELIVERED by the duly authorized officers of the parties as of
the date first above written.
Borrower: Agent:
XXXXXX COMMUNICATIONS, INC., formerly BANK OF AMERICA, N.A., formerly
known as Xxxxxx Companies Inc. known as Bank of America National
Trust and Savings Association
By ___________________________________ By ______________________________
Title ________________________________ Title ___________________________
Banks:
BANK OF AMERICA, N.A., formerly known U.S. BANK NATIONAL ASSOCIATION
as Bank of America National Trust and
Savings Association
By ___________________________________ By ______________________________
Title ________________________________ Title ___________________________
4
GUARANTORS' CONSENT
Xxxxxx Broadcasting Company, Xxxxxx Xxxxx Inc. and Xxxxxx Properties
Inc. ("Guarantors") are guarantors of the indebtedness, liabilities and
obligations of Xxxxxx Companies Inc. ("Borrower") under the Credit Agreement and
the other Loan Documents referred to in the within and foregoing Waiver and
Fourth Amendment to Credit Agreement ("Waiver"). The Guarantors hereby
acknowledge that they have received a copy of the Waiver and hereby consent to
its contents (notwithstanding that such consent is not required). Each Guarantor
hereby confirms that its guarantee of the obligations of Borrower remains in
full force and effect, and that the obligations of Borrower under the Loan
Documents shall include the obligations of Borrower under the Loan Documents as
amended by the Waiver.
Guarantors:
XXXXXX BROADCASTING COMPANY, formerly XXXXXX XXXXX INC.
known as Xxxxxx Broadcasting Inc.
By _______________________________________ By __________________________
Title ____________________________________ Title _______________________
XXXXXX PROPERTIES INC.
By _______________________________________
Title ____________________________________
EXHIBIT A
TO WAIVER AND FOURTH AMENDMENT TO CREDIT AGREEMENT
January ___, 2002
Bank of America, N.A.
Commercial Agency Management
WA1-501-37-20
000 Xxxxx Xxxxxx, Xxxxx 00
Xxxxxxx XX 00000-0000
Attention: Xxxx Xxxxx
Re: Certificate of Chief Financial Officer
Ladies and Gentlemen:
With respect to that certain Credit Agreement between Xxxxxx Communications
Inc., formerly known as Xxxxxx Companies Inc. ("Borrower"), Bank of America,
N.A., formerly known as Bank of America National Trust and Savings Association,
as Agent, U.S. Bank National Association and Bank of America, N.A., formerly
known as Bank of America National Trust and Savings Association, as Banks, dated
May 26, 1998 (as amended, the "Agreement"), we hereby represent to you the
following (capitalized terms used in this certificate shall have the same
meaning as in the Agreement):
[1. Enclosed is (a) the unaudited consolidated balance sheet of Borrower
and its consolidated Subsidiaries as of the end of the fiscal year
ended December 31, 2001, and (b) the related unaudited consolidated
statements of income, shareholders' equity and retained earnings for
such fiscal year.]
2. As of the date of such financial statements, Borrower's Adjusted
Leverage Ratio, as described in Section 7.2(a) of the Agreement, is
____________.
3. As of the date of such financial statements, Borrower's Interest
Coverage Ratio, as described in Section 7.2(b) of the Agreement, is
____________.
4. As of the date of such financial statements, Borrower's Fixed Charge
Coverage Ratio, as described in Section 7.2(c) of the Agreement, is
____________.
5. To the best of my knowledge, such financial statements are complete and
correct, fairly present, without qualification, the financial condition
of Borrower for such period, and are prepared in accordance with GAAP;
6. To the best of my knowledge, no Default exists, nor does any event
exist which, with lapse of time or upon the giving of notice would
constitute a Default under the Agreement.
Sincerely,
XXXXXX COMMUNICATIONS INC., formerly
known as Xxxxxx Companies Inc.
By ____________________________________________
Chief Financial Officer
