EXHIBIT 4.7.1
AMENDMENT NO. 1
This Amendment No. 1, dated as of September 19, 2003 (this
"AMENDMENT"), between Xxxxxx Communications Corporation, a Delaware corporation
(the "BORROWER"), and the Administrative Agent (as defined below) amends certain
provisions of the Amended and Restated Credit Agreement, dated as of May 5, 2003
(the "CREDIT AGREEMENT"), among the Borrower, the Lenders (as defined in the
Credit Agreement), the Issuers (as defined in the Credit Agreement), Citicorp
USA, Inc., as administrative agent for the Lenders and the Issuers and as
collateral agent for the Secured Parties under the Collateral Documents (in each
such capacity, the "ADMINISTRATIVE AGENT"), Union Bank of California, N.A., as
syndication agent for the Lenders and the Issuers, and General Electric Capital
Corporation, as documentation agent for the Lenders and the Issuers.
W I T N E S S E T H:
WHEREAS, the Borrower, the Lenders and the Administrative
Agent are parties to the Credit Agreement and, as of the date hereof, the
Lenders consenting to this Amendment constitute the Requisite Lenders (as
defined in the Credit Agreement);
WHEREAS, the Borrower and the Administrative Agent, on behalf
of the Lenders constituting the Requisite Lenders, have agreed to make certain
amendments to the Credit Agreement as set forth herein; and
WHEREAS, pursuant to Section 11.1 of the Credit Agreement, the
consent of the Requisite Lenders is required to amend the provisions of the
Credit Agreement as set forth herein;
NOW, THEREFORE, in consideration of the foregoing, the mutual
covenants and obligations herein set forth and other good and valuable
consideration, the adequacy and receipt of which is hereby acknowledged, and in
reliance upon the representations, warranties and covenants herein contained,
the parties hereto, intending to be legally bound, hereby agree as follows:
SECTION 1. DEFINITIONS. Unless otherwise defined herein,
capitalized terms used herein shall have the meanings ascribed to such terms in
the Credit Agreement.
SECTION 2. AMENDMENTS TO CREDIT AGREEMENT. Effective as of the
Effective Date (as defined below) and subject to the terms and conditions set
forth herein, the Credit Agreement is hereby amended as follows:
(a) By amending and restating in its entirety the definition
of "Excess Cash Flow" in Section 1.1 (Defined Terms) of the Credit Agreement to
read as follows:
"Excess Cash Flow" means, for the Borrower for any period,
EBITDA of the Borrower for such period PLUS the sum of (without
duplication) (a) the excess, if any, of the Adjusted Working Capital of
the Borrower at the beginning of such period over the Adjusted Working
Capital of the Borrower at the end of such period and (b) the excess,
if any, of Programming Amortization Expense for such period over
Programming Rights Payments for such period LESS the sum of (without
duplication) (i) scheduled and mandatory cash interest and principal
payments on the Facilities during such period and optional cash
principal payments on the Facilities during such period (but, in the
case of the Revolving Credit Facility, only to the extent that the
Revolving Credit Commitments are permanently reduced by the amount of
such payments), (ii) scheduled cash principal payments and cash
payments of Preferred Stock dividends made by the Borrower or any of
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its Subsidiaries during such period on other Indebtedness or on
Preferred Stock (as the case may be) to the extent such other
Indebtedness, Preferred Stock and such payments in respect thereof are
permitted by this Agreement, (iii) taxes paid by the Borrower and its
Subsidiaries on a consolidated basis, (iv) Capital Expenditures made by
the Borrower or any of its Subsidiaries during such period to the
extent permitted by this Agreement, (v) Programming Rights Payments in
excess of Programming Amortization Expense, (vi) the excess, if any, of
the Adjusted Working Capital of the Borrower at the end of such period
over the Adjusted Working Capital of the Borrower at the beginning of
such period and (vii) scheduled and mandatory cash interest payments on
the New Senior Subordinated Notes to the extent such payments in
respect thereof are permitted by this Agreement.
(b) By amending and restating Section 2.11(c) (Minimum Net
Revenue Fee) of the Credit Agreement in its entirety to read as follows:
[Intentionally Omitted.]
(c) By amending and restating Section 5.1 (Minimum Net
Revenue) of the Credit Agreement in its entirety to read as follows:
The Borrower will have, as of the last day of each Fiscal
Quarter set forth below, Net Revenue for the four Fiscal Quarters
ending on such day of not less than the following:
--------------------------------------- --------------------------------
FISCAL QUARTER ENDING MINIMUM NET REVENUE
--------------------------------------- --------------------------------
June 30, 2001 $230,000,000
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September 30, 2001 $230,000,000
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December 31, 2001 $230,000,000
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March 31, 2002 $240,000,000
--------------------------------------- --------------------------------
June 30, 2002 $240,000,000
--------------------------------------- --------------------------------
September 30, 2002 $245,000,000
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December 31, 2002 $250,000,000
--------------------------------------- --------------------------------
March 31, 2003 $260,000,000
--------------------------------------- --------------------------------
June 30, 2003 $270,000,000
--------------------------------------- --------------------------------
September 30, 2003 $250,000,000
--------------------------------------- --------------------------------
December 31, 2003 $250,000,000
--------------------------------------- --------------------------------
March 31, 2004 $250,000,000
--------------------------------------- --------------------------------
June 30, 2004 $250,000,000
--------------------------------------- --------------------------------
September 30, 2004 $250,000,000
--------------------------------------- --------------------------------
December 31, 2004 $250,000,000
--------------------------------------- --------------------------------
March 31, 2005 $250,000,000
--------------------------------------- --------------------------------
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(d) By amending and restating Section 5.2 (Minimum EBITDA) of
the Credit Agreement in its entirety to read as follows:
The Borrower will have, as of the last day of each Fiscal
Quarter set forth below, EBITDA for the four Fiscal Quarters ending on
such day of not less than the following:
--------------------------------------- --------------------------------
FISCAL QUARTER ENDING MINIMUM EBITDA
--------------------------------------- --------------------------------
June 30, 2001 $3,000,000
--------------------------------------- --------------------------------
September 30, 2001 $12,000,000
--------------------------------------- --------------------------------
December 31, 2001 $15,000,000
--------------------------------------- --------------------------------
March 31, 2002 $18,000,000
--------------------------------------- --------------------------------
June 30, 2002 $19,000,000
--------------------------------------- --------------------------------
September 30, 2002 $11,000,000
--------------------------------------- --------------------------------
December 31, 2002 $14,000,000
--------------------------------------- --------------------------------
March 31, 2003 $20,000,000
--------------------------------------- --------------------------------
June 30, 2003 $34,000,000
--------------------------------------- --------------------------------
September 30, 2003 $45,000,000
--------------------------------------- --------------------------------
December 31, 2003 $50,000,000
--------------------------------------- --------------------------------
March 31, 2004 $50,000,000
--------------------------------------- --------------------------------
June 30, 2004 $50,000,000
--------------------------------------- --------------------------------
September 30, 2004 $50,000,000
--------------------------------------- --------------------------------
December 31, 2004 $50,000,000
--------------------------------------- --------------------------------
March 31, 2005 $50,000,000
--------------------------------------- --------------------------------
(e) By amending Section 5.3 (Maximum Senior Debt Leverage
Ratio) of the Credit Agreement by deleting the reference to "March 31, 2005" and
the ratio set forth opposite such date.
(f) By amending Section 5.4 (Maximum Leverage Ratio) of the
Credit Agreement by deleting the reference to "March 31, 2005" and the ratio set
forth opposite such date.
(g) By amending Section 5.5 (Minimum Interest Coverage Ratio)
of the Credit Agreement by deleting the reference to "March 31, 2005" and the
ratio set forth opposite such date.
(h) By amending Section 5.6 (Minimum Fixed Charge Coverage
Ratio) of the Credit Agreement by deleting the reference to "March 31, 2005" and
the ratio set forth opposite such date.
SECTION 3. CONDITIONS PRECEDENT TO THE EFFECTIVENESS OF THIS
AMENDMENT. This Amendment shall become effective as of the date the following
conditions precedent have been satisfied (the "EFFECTIVE DATE"):
(a) CERTAIN DOCUMENTS. The Administrative Agent shall have
received on or before the Effective Date all of the following, all of which
shall be in form and substance satisfactory to the Administrative Agent:
(i) this Amendment, executed by the Borrower;
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(ii) the Consent, Agreement and Affirmation of Guaranty,
in the form attached hereto as ANNEX A, executed by
the Subsidiary Guarantors;
(iii) an executed Acknowledgment and Consent, in the form
attached hereto as ANNEX B, from Lenders constituting
the Requisite Lenders; and
(iv) such additional documentation as the Administrative
Agent or the Requisite Lenders may reasonably
require.
(b) AMENDMENT FEE. The Administrative Agent shall have
received from the Borrower, for the ratable benefit of the Lenders party hereto
on or prior to the Effective Date, an amendment fee equal to 0.25% of the sum of
each such Lender's (i) Commitment as of the Effective Date and (ii) Ratable
Portion of the principal amount of Term A Loans and Term B Loans outstanding on
the Effective Date.
(c) OTHER FEES. The Administrative Agent shall have received
from the Borrower for its own account the fees described in that certain letter
agreement, dated as of the dated hereof, between the Borrower and the
Administrative Agent.
(d) REPRESENTATIONS AND WARRANTIES. Each of the
representations and warranties made by the Borrower or any Subsidiary Guarantor
in or pursuant to the Credit Agreement and the other Loan Documents to which the
Borrower or any Subsidiary Guarantor is a party or by which the Borrower or any
Subsidiary Guarantor is bound, shall be true and correct in all material
respects, after giving effect to the terms of this Amendment, on and as of the
Effective Date (except to the extent such representations and warranties in any
such Loan Document expressly relate to an earlier date).
(e) NO EVENTS OF DEFAULT. No Event of Default or Default shall
have occurred and be continuing on the Effective Date after giving effect to the
terms of this Amendment.
SECTION 4. REPRESENTATIONS AND WARRANTIES. The Borrower hereby
represents and warrants to the Administrative Agent and the Lenders that as of
the date hereof, (a) no Event of Default or Default under the Credit Agreement
shall have occurred and be continuing and (b) all of the representations and
warranties of the Loan Parties contained in Article IV of the Credit Agreement
and in any other Loan Document continue to be true and correct in all material
respects, as though made on and as of such date (except to the extent such
representations and warranties in any such Loan Document expressly relate to an
earlier date).
SECTION 5. COSTS AND EXPENSES. The Borrower agrees to pay on
demand in accordance with the terms of Section 11.3 of the Credit Agreement all
costs and expenses of the Administrative Agent in connection with the
preparation, reproduction, execution and delivery of this Amendment and all
other Loan Documents entered into in connection herewith, including the
reasonable fees, expenses and disbursements of Weil, Gotshal & Xxxxxx LLP,
counsel for the Administrative Agent with respect thereto.
SECTION 6. REFERENCE TO AND EFFECT ON THE LOAN DOCUMENTS.
(a) Upon the effectiveness of this Amendment, on and after the
Effective Date, each reference in the Credit Agreement to "THIS AGREEMENT",
"HEREUNDER", "HEREOF" or words of like import, and each such reference in each
other Loan Document, shall mean and be a reference to the Credit Agreement as
amended hereby.
(b) Except as specifically amended hereby, all of the terms of
the Credit Agreement and all other Loan Documents shall remain unchanged and in
full force and effect.
(c) The execution, delivery and effectiveness of this
Amendment shall not, except as expressly provided herein, operate as an
amendment or waiver of any right, power or remedy of any Lender or the
Administrative Agent under the Credit Agreement or any of the Loan Documents,
nor
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constitute an amendment or waiver of any provision of the Credit Agreement
or any of the Loan Documents.
(d) This Amendment is a Loan Document.
SECTION 7. TITLES. The Section titles contained in this
Amendment are and shall be without substantive meaning or content of any kind
whatsoever and are not a part of the agreement between the parties hereto.
SECTION 8. EXECUTION IN COUNTERPARTS. This Amendment may be
executed and delivered in any number of counterparts and by different parties
hereto in separate counterparts, each of which when so executed and delivered
shall be deemed an original and all of which taken together shall constitute one
and the same original agreement.
SECTION 9. NOTICES. All communications and notices to the
Administrative Agent hereunder shall be given as provided in the Credit
Agreement.
SECTION 10. SEVERABILITY. If any term or provision set forth
in this Amendment shall be invalid or unenforceable, the remainder of this
Amendment, or the application of such term or provision to persons or
circumstances, other than those to which it is held unenforceable, shall not in
any way be affected or impaired thereby.
SECTION 11. SUCCESSORS. The terms of this Amendment shall be
binding upon, and shall inure to the benefit of, the parties hereto and their
respective successors or assigns.
SECTION 12. GOVERNING LAW. This Amendment shall be
interpreted, and the rights and liabilities of the parties determined, in
accordance with the internal law of the State of New York.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be executed by their respective officers thereunto duly authorized,
as of the date first above written.
XXXXXX COMMUNICATIONS CORPORATION,
as Borrower
By: /s/ Xxxxxx X. Xxxxxxxx, Xx.
-------------------------------------
Name: Xxxxxx X. Xxxxxxxx, Xx.
Title: Senior Vice President and
Chief Financial Officer
CITICORP USA, INC.,
as Administrative Agent
By: /s/ Xxxxxx X. Xxxxxx
-------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President
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[SIGNATURE PAGE TO AMENDMENT NO. 1]
ANNEX A
CONSENT, AGREEMENT AND AFFIRMATION OF GUARANTY
Each of the undersigned Subsidiary Guarantors hereby consents
to the terms of the foregoing Amendment in its capacity as a guarantor under the
Guaranty and agrees that the terms of the foregoing Amendment shall not affect
in any way its obligations and liabilities under its guaranty, all of which
obligations and liabilities shall remain in full force and effect and each of
which is hereby reaffirmed.
On behalf of each of the Subsidiary
Guarantors under the Loan Documents
By: /s/ Xxxxxx X. Xxxxxxxx, Xx.
-------------------------------------
Name: Xxxxxx X. Xxxxxxxx, Xx.
Title: Vice President and Treasurer
and, with respect to America 51,
L.P., Vice President and Treasurer
of its General and Limited Partners
ANNEX B
ACKNOWLEDGMENT AND CONSENT
Xxxxxx Communications Corporation
000 Xxxxxxxxxx Xxxx Xxxx
Xxxx Xxxx Xxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxxx, Xx., Chief Financial Officer,
with a copy to Xxxxxxx X. Xxxxxxxx, Esq., Chief Legal Officer
Telecopy no: (000) 000-0000
Citicorp USA, Inc., as Administrative Agent
000 Xxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxx X. Judge
Telecopy no: (000) 000-0000
RE: XXXXXX COMMUNICATIONS CORPORATION
Ladies and Gentlemen:
Reference is made to Amended and Restated Credit Agreement,
dated as of May 5, 2003 (the "CREDIT AGREEMENT"), among Xxxxxx Communications
Corporation, a Delaware corporation (the "BORROWER"), the Lenders (as defined in
the Credit Agreement), the Issuers (as defined in the Credit Agreement),
Citicorp USA, Inc., as administrative agent for the Lenders and the Issuers and
as collateral agent for the Secured Parties under the Collateral Documents (in
each such capacity, the "ADMINISTRATIVE AGENT"), Union Bank of California, N.A.,
as syndication agent for the Lenders and the Issuers, and General Electric
Capital Corporation, as documentation agent for the Lenders and the Issuers.
Unless otherwise defined herein, capitalized terms used herein and defined in
the Credit Agreement are used herein as therein defined.
The Borrower has requested that the Lenders consent to an
amendment to the Credit Agreement on the terms described in the Amendment No. 1
(the "AMENDMENT") to which this ANNEX B is attached.
Pursuant to Section 11.1 of the Credit Agreement, the
undersigned Lender hereby consents to the amendments of, and modifications to,
the Credit Agreement contained in the Amendment and authorizes the
Administrative Agent to execute the Amendment on its behalf.
Very truly yours,
-------------------------------------
(NAME OF LENDER)
By:
----------------------------------
Name:
Title:
Dated as of September __, 2003
