FIRST AMENDMENT TO CREDIT AGREEMENT
THIS FIRST AMENDMENT TO CREDIT AGREEMENT, dated as of March 20, 1996 (this
"Amendment"), is made by and between XXXXXXXX COMMUNICATIONS, INC. (the
"Company"), FIRST UNION NATIONAL BANK OF NORTH CAROLINA, as Documentation Agent,
NATWEST BANK N.A. as Administrative Agent and the Banks party to the Credit
Agreement (as hereinafter defined).
This Amendment amends that certain Credit Agreement dated as of February
17, 1995 (as amended, modified, restated or supplemented from time to time, the
"Credit Agreement"), between the Company, the Managing Agents and the Banks. 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 Banks have made available to the
Company certain Loans and Facility Letters of Credit in the aggregate principal
amount of up to $65,000,000 evidenced by Promissory Notes of the Company in the
aggregate principal amount of $65,000,000.
B. The Company has requested that the Managing Agents and the Banks (i)
modify certain definitions and covenants to account for a $14.2 million judgment
against the Company and (ii) make certain other conforming modifications to the
Credit Agreement.
C. The Company, the Managing Agents and the Banks have agreed to amend
the Credit Agreement as set forth herein.
STATEMENT OF AGREEMENT
NOW, THEREFORE, in consideration of these premises, and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Company, the Managing Agents and the Banks hereby agree as
follows:
ARTICLE I
AMENDMENTS
The Credit Agreement is hereby amended as follows:
1.1. DEFINED TERMS. Article I of the Credit Agreement is hereby amended
deleting the definitions of "Indebtedness" and "Operating Cash Flow" in their
entirety and replacing them with the following:
"Indebtedness" means the Company's and each Subsidiary's (i) obligations for
borrowed money, (ii) obligations representing the deferred purchase price of
property (other than accounts payable arising in connection with the purchase of
inventory on terms customary in the trade and Program Obligations), (iii)
obligations, whether or not assumed, secured by Liens or payable out of the
proceeds or production from property now or hereafter owned or acquired by the
Company or any Subsidiary, (iv) obligations which are evidenced by notes,
acceptances or other instruments, (v) Capitalized Lease Obligations, (vi)
obligations arising under or in connection with Guaranties, and (vii)
obligations for the payment of damages awarded to the plaintiffs in a lawsuit
against the Company on February 29, 1996 in the amount of $13,000,000 PLUS
$1,200,000 reserved for possible awards and legal expenses related to the same
lawsuit, resulting in an aggregate amount of $14,200,000.
"Operating Cash Flow" means, for any period of calculation, (i) pre-tax income
or deficit, as the case may be (excluding 50% of any National Basketball
Association expansion fee income recognized by the Company or any of its
Subsidiaries in any such period; excluding $13,000,000 in damages awarded to the
plaintiffs in a lawsuit against the Company on February 29, 1996, and $1,200,000
reserved for possible awards and legal expenses related to the same lawsuit in
an aggregate amount not to exceed $14,200,000, recognized as an expense by the
Company in any such period; and excluding extraordinary gains or losses and any
gain (or loss) from any sale, lease, transfer or other disposition of any
property, asset or business and excluding any income from equity investments)
plus, to the extent deducted in calculating pre-tax income or deficit, (a) all
depreciation and amortization expense (including the amortization of Program
Obligations), and (b) interest expense (net of interest income), minus (ii)
Program Obligation Payments, all calculated for such period for the Company and
the Subsidiaries on a consolidated basis in accordance with Generally Accepted
Accounting Principles consistently applied. In the case of any Sale or
Acquisition by the Company or any Subsidiary during any period of calculation,
the definition of Operating Cash Flow shall, for purposes of determining Total
Leverage Ratio, Senior Leverage Ratio and Applicable Margin, be adjusted to give
effect to such Sale or Acquisition, as if such Sale or Acquisition occurred on
the first day of such period, (x) in the case of a Sale, by decreasing, if
positive, or increasing, if negative, Operating Cash Flow by the Operating Cash
Flow in respect of such Sale during such period or (y) in the case of an
Acquisition, by increasing, if positive, or decreasing, if negative, Operating
Cash Flow by the Operating Cash Flow in respect of such Acquisition during such
period.
-2-
1.2. NEGATIVE COVENANTS. Effective as of December 31, 1995, Article VI of
the Credit Agreement is hereby amended as follows:
(a) Section 6.16 of the Credit Agreement is hereby amended by deleting the
last sentence of subsection (v) of such Section and replacing it with the
following:
"All such capital contributions to New Century shall be limited to an
aggregate amount of $1,200,000 per annum in addition to the capital
contribution required pursuant to Section 3(g)(i) of the Amended
Partnership Agreement, which required capital contribution shall not
exceed $600,000."
(b) Section 6.17 of the Credit Agreement is hereby amended by adding the
following subsection (iv) to the end of such Section:
(iv) Guaranties of obligations of other Persons up to an aggregate
amount for all such Guaranties of $6,000,000.
(c) Section 6.25 of the Credit Agreement is hereby amended by deleting
such Section in its entirety and replacing it with the following:
6.25. FIXED CHARGE COVERAGE RATIO. The Company will maintain, as at
the last day of each fiscal quarter, a Fixed Charge Coverage Ratio of
not less than the ratio set forth below opposite each such period:
Period Ratio
------ -----
The Closing through September 30, 1996 1.00 to 1.00
At all times thereafter 1.25 to 1.00
1.3. EXHIBITS AND SCHEDULES. The Schedules to the Credit Agreement are
hereby amended by adding to the appropriate Schedule the information contained
on the schedules attached hereto. The schedules attached hereto shall have the
same numbers as the corresponding Schedule to the Credit Agreement.
ARTICLE II
REPRESENTATIONS AND WARRANTIES
The Company hereby represents and warrants that:
2.1. COMPLIANCE WITH CREDIT AGREEMENT. The Company is in compliance with
all terms and provisions set forth in the Credit Agreement to be observed or
performed, except where the Company's failure to comply has been waived in
writing by the Managing Agents or the Banks, as the case may be.
-3-
2.2. REPRESENTATIONS IN CREDIT AGREEMENT. The representations and
warranties of the Company set forth in the Credit Agreement are true and
correct.
2.3. NO EVENT OF DEFAULT. No Default or Event of Default has occurred or
is continuing other than those, if any, waived in writing by the Managing
Agents or the Banks, as the case may be.
ARTICLE III
MODIFICATION OF LOAN DOCUMENTS AND CONDITIONS
3.1. OMNIBUS AMENDMENT. The other Loan Documents, as defined in the Credit
Agreement, are amended as follows:
In accordance with this Amendment, any references in any Loan Documents to
definitions or covenants in the Credit Agreement are hereby modified to
reflect the modifications set forth in this Amendment.
Any individual or collective reference to any of the Loan Documents in any
of the other Loan Documents shall mean, unless otherwise specifically
provided, such Loan Documents as amended by this Amendment, and as it is
further amended, restated, supplemented or modified from time to time and
any substitute or replacement therefor or renewals thereof. Without
limiting the foregoing, all references to the Credit Agreement shall mean
the Credit Agreement as amended hereby and as further amended from time to
time. All Loan Documents, as amended hereby, are in full force and effect
and are enforceable against the Company in accordance with their terms.
3.2. CONDITIONS PRECEDENT. This Amendment shall become effective upon
the satisfaction of the following conditions precedent:
(a) CERTIFICATE OF COMPANY. The Managing Agents shall have received from
the Company a Certificate of Company, in a form satisfactory to the Managing
Agents, certifying (i) that the articles of incorporation of the Company have
not been amended since the Closing Date, (ii) that the bylaws of the Company
have not been amended since the Closing Date, (iv) that attached thereto is a
true and correct copy of the resolutions adopted by the Board of Directors of
the Company authorizing the execution and delivery by the Company of this
Amendment and all of the documents executed in connection therewith, and (v) as
to the incumbency and genuineness of the signatures of each officer of the
Company executing on behalf of the Company, any documents relating to the
transactions contemplated in this Amendment.
-4-
(b) OTHER DOCUMENTS. The Managing Agents and the Banks shall receive from
the Company such other documents, opinions of counsel and certificates as they
shall reasonably deem necessary and request in connection with the execution of
this Amendment and the closing of the transactions contemplated herein.
(c) FEES AND EXPENSES. The Company agrees to pay all out-of-pocket
expenses incurred by the Agent in connection with the preparation, execution and
delivery of this Amendment, including, without limitation, all reasonable
attorneys' fees.
ARTICLE IV
GENERAL
4.1. FULL FORCE AND EFFECT. As expressly amended hereby, the Credit
Agreement and the other Loan Documents shall continue in full force and effect
in accordance with the provisions thereof. As used in the Credit Agreement and
the Loan Documents, "hereinafter," "hereto," "hereof," and words of similar
import shall, unless the context otherwise requires, mean the Credit Agreement
as amended 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.
4.4. FURTHER ASSURANCE. The Company shall execute and deliver to the
Managing Agents and the Banks such documents, certificates and opinions as the
Managing Agents may reasonably request to effect the amendment contemplated by
this Amendment.
4.5. HEADINGS. The headings of this Amendment are for the purposes of
reference only and shall not affect the construction of this Amendment.
4.6. VALID AMENDMENT. The parties acknowledge that this Amendment
complies in all respects with Section 8.2 of the Credit Agreement, which sets
forth the requirements for amendments thereto.
-5-
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.
XXXXXXXX COMMUNICATIONS, INC.
By: /s/ Xxxxx X. Xxxxxx
-----------------------------------
Xxxxx X. Xxxxxx,
Senior Vice President and Chief
Financial officer
000 Xxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attn: Xx. Xxxxx X. Xxxxxx
Senior Vice President and
Chief Financial Officer
-6-
NATWEST BANK N.A.,
Individually and as Administrative
Agent
By: /s/ Xxxxxxx Xxxx
-------------------------------------
Title: Vice President
----------------------------------
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attn: Xx. Xxxxxxxxx Sade
Media Division
-7-
FIRST UNION NATIONAL BANK OF NORTH
CAROLINA, Individually and as
Documentation Agent
By: /s/ Xxx Xxxxxx
-------------------------------------
Title: SVP
----------------------------------
One First Union Center
000 Xxxxx Xxxxxxx Xxxxxx
Xxxxxxxxx, X.X. 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attn: Xx. Xxxxx X. Xxxx
Capital Markets Group
-8-
SEATTLE-FIRST NATIONAL BANK
By:
-------------------------------------
Title:
----------------------------------
Columbia SeaFirst Center
00xx Xxxxx
000 0xx Xxxxxx
Xxxxxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attn: Xx. Xxxx Xxxxxxx
Northwest National
Division
-9-
THE LONG-TERM CREDIT BANK OF JAPAN,
LTD., Los Angeles Agency
By:
-------------------------------------
Title:
----------------------------------
000 Xxxxx Xxxxxx Xxxxxx
Xxxxx 0000
Xxx Xxxxxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attn: Xx. Xxxxxx Xxxxxxxx
-00-
XXXXX XXXX
By: /s/ Xxxxxx X. Xxxxx
-------------------------------------
XXXXXX X. XXXXX
Title: VICE PRESIDENT
----------------------------------
000 Xxxxx Xxxxxxxx Xxxxxx
Xxx Xxxxxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attn: XXXXXX X. XXXXX
VICE PRESIDENT
Communications/Media Group
-11-
