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EXHIBIT 10.6
THIS FIFTH AMENDMENT TO CREDIT AGREEMENT, dated as of July 31, 2000
(this "Amendment" or this "Fifth 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), 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 KEYBANK NATIONAL ASSOCIATION, as co-agent (the
"Co-Agent").
This Amendment amends and waives that certain Credit Agreement dated as
of January 22, 1999, between the Borrower, the Lenders, the Administrative
Agent, the Documentation Agent and the Co-Agent (as previously amended, the
"Credit Agreement"). All capitalized terms not otherwise defined in this
Amendment shall have the meanings assigned to them in the Credit Agreement.
RECITALS
A. The Borrower intends to acquire Station KJEO-TV, the CBS affiliate
television broadcast station licensed for Fresno, California (the "Station") by
its wholly owned subsidiary AK Media Group, Inc. (the "Buyer") entering into a
transaction (the "Fresno Station Transaction") with Xxxxxx Broadcasting, Inc.,
pursuant to which the Buyer will acquire all the membership interests (the
"Membership Interests") in Xxxxxx Broadcasting-Fresno LLC (the "Company"), the
licensee and operator of the Station.
B. The Borrower has requested certain waivers of the Credit Agreement as
provided herein, together with an amendment to the "Applicable Margin
Percentage".
C. The Required Lenders, the Administrative Agent, the Documentation
Agent and the Co-Agent are willing to agree to so amend and waive 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-Agent hereby agree as follows:
ARTICLE I.
AMENDMENTS AND WAIVERS OF THE CREDIT AGREEMENT
1.1 Leverage Ratio. As of the Effective Date (as defined in Section
3.7), the Required Lenders and the Borrower agree that with respect to Section
7.1(a) of the Credit Agreement: (a) compliance by the Borrower with the
requirements of Section 7.1(a) (and any Default or Event of Default with respect
thereto) are waived for the period from June 30, 2000, to but not including
December 15, 2000; (b) on December 15, 2000, the Borrower shall provide to the
Administrative Agent a certificate executed by a Financial Officer of the
Borrower satisfactory in form and substance
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to the Administrative Agent, setting forth a pro forma calculation of the
Leverage Ratio using for purposes of this Section 1.1: (i) Consolidated Funded
Debt as of December 15, 2000, and (ii) pro forma Consolidated EBITDA for the
four consecutive fiscal quarters ended September 30, 2000, taking into account
(x) the Fresno Station Transaction and (y) all other Acquisitions and any Asset
Dispositions by the Borrower and its Subsidiaries prior to December 15, 2000,
and such pro forma calculation of the Leverage Ratio shall be no greater than
6.25:1.00, in which case the Borrower shall be deemed to be in compliance with
Section 7.1(a) for the period from and including December 15, 2000, to but not
including December 31, 2000; and (c) the Borrower shall be in compliance with
Section 7.1(a) as in effect immediately prior to the Effective Date during all
periods from and after December 31, 2000. The failure of the Borrower to be in
full and timely compliance with clauses (b) and (c) of this Section 1.1 shall be
an immediate Event of Default for all purposes of the Credit Documents.
1.2. Permitted Acquisition Covenant. As of the Effective Date, the
Required Lenders agree that with respect to Section 6.9 of the Credit Agreement:
(a) Section 6.9(a) (i) and (ii) of the Credit Agreement are hereby waived to the
extent necessary to permit the Fresno Station Transaction; and (b) the Borrower
shall not be required to provide the certificate to be delivered under Section
6.9(b)(iii) for the Fresno Station Transaction.
1.3. Applicable Margin Percentage. During the period from the Effective
Date to but not including December 15, 2000 only, the Applicable Margin
Percentage for Base Rate Term and Revolving Loans shall be 2.250% and the
Applicable Margin Percentage for LIBOR Term and Revolving Loans shall be 3.250%.
From and after December 15, 2000, the Applicable Margin Percentage for Base Rate
Term and Revolving Loans and the Applicable Margin Percentage for LIBOR Term and
Revolving Loans shall be determined under the definition of "Applicable Margin
Percentage" as in effect immediately prior to the Effective Date.
1.4 No Other Waivers or Modifications. Except as expressly waived and
modified in Sections 1.1, 1.2 and 1.3 of this Fifth Amendment, the Credit
Documents shall continue in full force and effect in the form in effect
immediately prior to the Effective Date and no other modification or waiver of
the Credit Documents shall be deemed effected hereby.
ARTICLE II.
REPRESENTATIONS AND WARRANTIES
The Borrower hereby certifies and warrants to the Administrative Agent
and the Lenders that after giving effect to the amendments and waivers effected
hereby and the Fresno Station Transaction: (a) each of the representations and
warranties contained in ARTICLE V of the Credit Agreement and in the other
Credit Documents are true and correct as of the Effective Date with the same
effect as though made on the date hereof, (except to the extent any such
representation or warranty is expressly stated to have been made as of a
specific date, in which case such representation or warranty shall be true and
correct as of such specified date), and (b) no Default or Event of Default shall
have occurred and be continuing on the Effective Date.
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ARTICLE III.
GENERAL
3.1. FULL FORCE AND EFFECT. The Credit Agreement, as expressly amended,
modified and waived hereby, shall continue in full force and effect in
accordance with the provisions thereof as in effect immediately prior to the
Effective Date. As used in the Credit Agreement, "hereinafter," "hereto,"
"hereof," and words of similar import shall from and after the Effective Date,
unless the context otherwise requires, mean the Credit Agreement after amendment
by this Amendment.
3.2 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.
3.3 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.
3.4 EXPENSES. The 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.
3.5 FURTHER ASSURANCES. The 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, including
the assets acquired in the Fresno Station Transaction.
3.6 HEADINGS. The headings of this Amendment are for the purposes of
reference only and shall not affect the construction of this Amendment.
3.7 EFFECTIVENESS. This Amendment shall become effective (the date the
following conditions are first satisfied being the "Effective Date") upon (i)
the execution of a counterpart hereof by the Borrower, the Administrative Agent
and the Required Lenders, (ii) the execution of the Acknowledgement of Guaranty
attached hereto by each of the Guarantors, (iii) the execution by the Borrower
of a fee letter with the Administrative Agent, satisfactory in form and
substance to the Administrative Agent, (iv) receipt by the Administrative Agent
of such executed counterparts, acknowledgement and fee letter, (v) receipt by
the Administrative Agent of the items referred to in Section 6.9(b) of the
Credit Agreement, as modified and waived hereby, with respect to the Fresno
Station Transaction and (vi) compliance by the Borrower with the requirements of
Section 6.10 of the Credit Agreement with respect to the acquisition of the
Company, including (x) execution and delivery by the Company of joinders to the
Subsidiary Guaranty and to the Security Agreement, (y) the valid pledge by the
Buyer to the Administrative Agent of the Membership Interests pursuant to the
Pledge Agreement, and (z) evidence in form and substance satisfactory to the
Administrative Agent that any necessary filings, recordings, registrations and
other actions (including without limitation delivery to the Administrative Agent
of certificates for any certificated Membership Interests and the filing of duly
completed and executed UCC-1 financing statements) necessary, or
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in the reasonable opinion of the Administrative Agent desirable, to perfect the
Liens under the Security Documents in the Membership Interests and the assets of
the Company in accordance with Section 6.10 of the Credit Agreement shall have
been completed, or that arrangements satisfactory to the Administrative Agent
for the completion thereof shall have been made.
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:
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Name:
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Title:
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(signatures continued)
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FIRST UNION NATIONAL BANK,
as Administrative Agent and as a Lender
By:
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Name:
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Title:
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(signatures continued)
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FLEET BANK, N.A.,
as Documentation Agent and a Lender
By:
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Name:
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Title:
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(signatures continued)
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KEYBANK NATIONAL ASSOCIATION,
as Co-Agent and as a Lender
By:
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Name:
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Title:
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(signatures continued)
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U.S. BANK NATIONAL ASSOCIATION
By:
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Name:
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Title:
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(signatures continued)
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BANK OF AMERICA, N.A.
By:
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Name:
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Title:
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(signatures continued)
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XXX XXXX XX XXXX XXXXXX
By:
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Name:
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Title:
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(signatures continued)
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DRESDNER BANK AG, NEW YORK & GRAND CAYMAN
BRANCHES
By:
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Name:
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Title:
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By:
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Name:
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Title:
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(signatures continued)
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THE CIT GROUP/EQUIPMENT FINANCING, INC.
By:
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Name:
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Title:
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(signatures continued)
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BNP PARIBAS
By:
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Name:
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Title:
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By:
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Name:
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Title:
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(signatures continued)
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FIRST HAWAIIAN BANK
By:
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Name:
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Title:
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(signatures continued)
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CITIZENS BANK OF MASSACHUSETTS
By:
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Name:
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Title:
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(signatures continued)
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CREDIT INDUSTRIEL ET COMMERCIAL
By:
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Name:
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Title:
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By:
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Name:
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Title:
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(signatures continued)
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MICHIGAN NATIONAL BANK
By:
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Name:
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Title:
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(signatures continued)
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WASHINGTON MUTUAL BANK
(DBA WESTERN BANK)
By:
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Name:
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Title:
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(signatures continued)
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NATEXIS BANQUE
By:
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Name:
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Title:
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By:
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Name:
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Title:
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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 of 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 KeyBank National Association, as
Co-Agent (as amended, the "Credit Agreement"), hereby consents to the foregoing
Fifth Amendment to Credit Agreement, and further waives any defense to its
guaranty liability occasioned by such amendment. The foregoing consent and
waiver of the undersigned is made as of effective date of the date of the Fifth
Amendment.
AK MEDIA GROUP, INC. XXXXXXXX COMMUNICATIONS OF
MASSACHUSETTS, INC.
By: By:
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Name: Name:
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Title: Title:
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KVOS TV, LTD. CENTRAL NEW YORK NEWS, INC.
By: By:
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Name: Name:
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Title: Title:
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AK FLORIDA OUTDOOR, INC. TC AVIATION, INC.
By: By:
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Name: Name:
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Title: Title:
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XXXXXXXX INTERACTIVE MEDIA, INC. AK MOBILE TELEVISION, INC.
By: By:
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Name: Name:
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Title: Title:
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XXXXXXXX VENTURES, INC.
By:
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Name:
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Title:
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