EXHIBIT 4.7.3
AMENDMENT NO. 3
This Amendment No. 3, dated as of November 4, 2002 (this "AMENDMENT"),
among Xxxxxx Communications Corporation, a Delaware corporation (the
"BORROWER"), the Lenders (as defined below) party hereto and the Administrative
Agent (as defined below) amends certain provisions of the Credit Agreement,
dated as of July 12, 2001, among the Borrower, the Lenders (as defined in the
Credit Agreement referred to below), Citicorp USA, Inc., as administrative agent
for the Lenders 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 CIBC, Inc.
and General Electric Capital Corporation, each as co-documentation agents for
the Lenders, as amended by Amendment No. 1, dated as of January 7, 2002, and
Amendment Xx. 0, xxxxx xx xx Xxxx 00, 0000 (xx amended, the "CREDIT AGREEMENT").
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, the Lenders party hereto and the Administrative
Agent 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
"EBITDA" in Section 1.1 (Defined Terms) of the Credit Agreement to read as
follows:
"EBITDA" means for any period, the sum (without duplication)
of the amounts for such period of (a) Consolidated Net Income, (b)
Interest Expense (including, for this purpose, dividends and accretions
on Preferred Stock to the extent deducted in the calculation of
Consolidated Net Income), (c) taxes payable by the Borrower and its
Subsidiaries on a consolidated basis to the extent deducted from
Consolidated Net Income, (d) total depreciation expense, (e) total
amortization expense (excluding Programming Amortization Expense), (f)
(to the extent included in such Consolidated Net Income for such
period) losses on sales of assets, (g) non-recurring restructuring
charges related to the implementation of joint sales agreements, (h)
restructuring charges incurred during the twelve months ended June 30,
2003 in an aggregate amount not to exceed $10,000,000, losses on
Pre-Approved Securitization Transactions in an aggregate amount not to
exceed $3,500,000 for any twelve-month period, and costs incurred to
execute Pre-Approved Securitization Transactions in an aggregate amount
not to exceed $1,600,000, and (i) other non-cash items reducing
Consolidated Net Income, including (without limitation) stock based
compensation, non-cash write-offs of syndicated programming rights
contracts entered into before December 31, 2000, non-cash write-offs of
programming rights contracts to their net realizable value in an
aggregate amount not to exceed $40,000,000 and incurred during the
twelve months ended June 30, 2003, and equity losses from any equity
Investments resulting from the operation of such business in ordinary
course, without giving effect to any extraordinary unusual and
non-recurring gains less the sum (without duplication) of the amounts
for such period of (x) non-cash items increasing Consolidated Net
Income, including (without limitation) equity gains from any equity
Investments resulting from the operation of such business in ordinary
course and (y) (to the extent included in such Consolidated Net Income
for such period) gains on the sales of assets, all of the foregoing as
determined on a consolidated basis for the Borrower and its
Subsidiaries and (unless otherwise defined) in conformity with GAAP.
For the purposes of calculating EBITDA for any period, any Permitted
Acquisition shall be deemed to have occurred on the first day of such
period, any Asset Sale shall be deemed to have occurred as of the day
before the first day of such period, and EBITDA shall be adjusted to
give effect to such Permitted Acquisition or Asset Sale in accordance
with the foregoing.
(b) By amending and restating in its entirety the definition of
"Interest Expense" in Section 1.1 (Defined Terms) of the Credit Agreement to
read as follows:
"INTEREST EXPENSE" means, for any period, the sum of (a) total
interest expense (including that portion attributable to Capital Leases
in accordance with GAAP and capitalized interest and the net cash costs
associated with Hedging Contracts) of the Borrower and its Subsidiaries
on a consolidated basis for such period with respect to all outstanding
Indebtedness of the Borrower and its Subsidiaries, including, without
limitation, (i) all interest payable to the Senior Lenders and all
commissions, discounts and other fees and charges owed with respect to
letters of credit and bankers' acceptance financing and (ii) time
brokerage and affiliate fees under LMA Agreements relating to the
financing of radio or television stations as to which the Borrower or
any of its Subsidiaries has an agreement or option to acquire if such
Station is not owned by the Borrower at the end of such period, plus
(b) losses on Pre-Approved Securitization Transactions, less (c) total
interest income of the Borrower and its Subsidiaries on a consolidated
basis for such period. In determining Interest Expense for any period,
there shall be (x) included all interest expense attributable to
Indebtedness incurred or assumed by the Borrower or any of their
Subsidiaries during the period in connection with any Permitted
Acquisition as if such Indebtedness was incurred or assumed on the day
before the first day of such period and bore interest from the first
day of such period until the date of such incurrence or assumption at a
rate per annum equal to the weighted average rate of interest on the
other Indebtedness outstanding during such period and (y) excluded
Interest Expense attributable to that portion of the principal amount
of Indebtedness repaid in connection with an Asset Sale as if such
portion of the principal amount of Indebtedness was prepaid on the day
before the first day of such period.
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"):
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(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, in sufficient executed
copies for each of the Lenders:
(i) this Amendment executed by the Borrower;
(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 0.125% 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 Guarantor in or pursuant to the Credit
Agreement and the other Loan Documents to which the Borrower or any Guarantor is
a party or by which the Borrower, or any 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 13.3 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.
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(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 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:
---------------------------------------------
Name: Xxxxxx Xxxxxxxx, Xx.
Title: Senior Vice President, Chief Financial
Officer and Treasurer
CITICORP USA, INC.,
as Administrative Agent
By:
---------------------------------------------
Name:
Title:
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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:
---------------------------------------------
Name: Xxxxxx 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
ACKNOWLEDGEMENT 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 Credit Agreement, dated as of July 12,
2001, among Xxxxxx Communications Corporation, a Delaware corporation (the
"BORROWER"), the Lenders (as defined in the Credit Agreement), Citicorp USA,
Inc., as administrative agent for the Lenders 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 CIBC, Inc. and General Electric Capital Corporation, each
as co-documentation agents for the Lenders, as amended by Amendment No. 1, dated
as of January 7, 2002, and Amendment Xx. 0, xxxxx xx xx Xxxx 00, 0000 (xx
amended, the "CREDIT AGREEMENT"). 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 Amendment No. 3 to
Credit Agreement (the "AMENDMENT"), a form of which is attached as EXHIBIT A
hereto.
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 October __, 2002
