________________________________________________________________________________
FOURTH AMENDMENT
Dated as of December 10, 2003
TO
THE AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT
Dated as of March 27, 2001
Among
XXXXXXXXXX COMMUNICATIONS COMPANY,
as the Borrower,
THE PLEDGORS AND GUARANTORS NAMED HEREIN,
THE FINANCIAL INSTITUTIONS PARTY HERETO,
as the Banks,
FLEET NATIONAL BANK,
as the Agent, and
DEUTSCHE BANK SECURITIES INC.,
as the Documentation Agent
________________________________________________________________________________
FOURTH AMENDMENT
This FOURTH AMENDMENT is entered into as of December 10, 2003 (this
"Amendment") by and among XXXXXXXXXX COMMUNICATIONS COMPANY, a Delaware
corporation (the "Borrower"), the Banks parties hereto (the "Banks"), FLEET
NATIONAL BANK, as Agent (the "Agent"), XXXXXXXXXX GROUP, INC. ("Xxxxxxxxxx
Group"), ALLFINCO, INC. ("Allfinco"), KATV, LLC ("KATV"), KTUL, LLC ("KTUL"),
WSET, INCORPORATED ("WSET"), XXXXXXXXXX TELEVISION PRODUCTIONS, INC. ("ATP"), TV
ALABAMA, INC. ("TV AL"), HARRISBURG TELEVISION, INC. ("HTI"), ACC LICENSEE, INC.
("ACCLI") and WCIV, LLC. ("WCIV"; and, together with Allfinco, KATV, KTUL, WSET,
ATP, TV AL, ACCLI and HTI, the "Subsidiary Guarantors"; the Borrower, Xxxxxxxxxx
Group and the Subsidiary Guarantors are referred to herein collectively as the
"Loan Parties") in order to amend as set forth herein the Amended and Restated
Revolving Credit Agreement, dated as of March 27, 2001 (as amended and otherwise
modified by the First Amendment, dated as of December 19, 2001, the Letter
Waiver, dated as of March 4, 2002, the Second Amendment dated as of May 15,
2002, and the Third Amendment and Consent, dated as of December 6, 2002, the
"Credit Agreement"), among the Borrower, the Banks, the Agent and the
Documentation Agent.
Recitals
WHEREAS, the Borrower has requested that the Credit Agreement be
amended, and the Banks and the Agent are willing, on the terms and conditions
set forth herein, to amend the Credit Agreement, as provided herein.
NOW, THEREFORE, subject to the satisfaction of the conditions to
effectiveness specified in Section 4, the parties hereto hereby agree as
follows:
Agreement
Section 1. Definitions. All capitalized terms used herein and not
otherwise defined herein shall have the meanings ascribed thereto in the Credit
Agreement.
Section 2. Amendments to the Credit Agreement.
(a) Section 8.2 of the Credit Agreement is hereby amended and
restated in its entirety to read as follows:
"Section 8.2 Total Leverage Ratio. The Borrower will not
permit as of any date of determination, the ratio of (a) Total Debt as
at such date to (b) Consolidated EBITDA for the period of four (4)
consecutive fiscal quarters most recently ended for which Borrower has
supplied or is required to supply financial statements pursuant to
ss.6.4(a), and following the Closing, a Compliance Certificate, to
exceed the ratio set forth opposite such period in the table below:
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Period Ratio
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-------------------------------------- ----------------------------------
Closing Date to 12/31/01 7.00
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1/1/02 to 9/30/02 6.75
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10/1/02 to 9/30/03 7.00
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10/1/03 to 12/31/03 7.50
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1/1/04 to 3/31/04 7.25
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-------------------------------------- ----------------------------------
4/1/04 to 9/30/04 6.75
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-------------------------------------- ----------------------------------
10/1/04 and thereafter 6.50
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Section 3. Consents by the other Loan Parties to the Amendment of the
Credit Agreement.
(a) Each of the Pledgors (as defined in the Pledge Agreement)
hereby confirms and agrees that (i) the Pledge Agreement is, and shall continue
to be, in full force and effect and is hereby ratified and confirmed in all
respects, and (ii) the Pledge Agreement and all of the Collateral described
therein does, and shall continue to, secure the payment and performance of all
of the Obligations.
(b) Each of the Subsidiary Guarantors hereby confirms and
agrees that the Guaranty is, and shall continue to be, in full force and effect
and is hereby ratified and confirmed in all respects.
Section 4. Effectiveness; Conditions to Effectiveness. This Amendment
shall become effective as of the date first written above on the first date
(such date, the "Effective Date") on which: (a) the Agent shall have received
counterparts of this Amendment executed by each Loan Party and (b) each of the
Banks shall have received an amendment fee by wire transfer of immediately
available funds in an amount equal to 0.1% of its Commitment.
Section 5. Representations and Warranties; No Default. The Borrower
hereby confirms to the Agent, the Banks and the Documentation Agent, that, after
giving effect to this Amendment, the representations and warranties of the
Borrower set forth in Section 5 (other than Section 5.4.2) of the Credit
Agreement (as amended hereby) as of the Effective Date (except to the extent of
changes resulting from transactions contemplated or permitted by the Credit
Agreement and changes occurring in the ordinary course of business that singly
or in the aggregate are not materially adverse, and to the extent that such
representations and warranties relate expressly to an earlier date), as if set
forth herein in full. The Borrower hereby certifies that no Default or Event of
Default has occurred and is continuing under the Credit Agreement.
Section 6. Reference to and Effect on the Loan Documents.
(a) On and after the effectiveness of this Amendment, each
reference in the Credit Agreement, Pledge Agreement, Guaranty and each of the
other Loan Documents to (i) the "Credit Agreement", "thereunder", "thereof" or
words of like import referring to the Credit Agreement, shall mean and be a
reference to the Credit Agreement, as amended by this Amendment, (ii) the
"Pledge Agreement", "thereunder", "thereof" or words of like import referring to
the Pledge Agreement, shall mean and be a reference to the Pledge Agreement, as
amended by this Amendment, and (iii) the "Guaranty", "Guaranty Agreement",
"thereunder", "thereof" or words of like import referring to the Guaranty, shall
mean and be a reference to the Guaranty, as amended by this Amendment.
(b) The Credit Agreement, the Notes, and each of the other
Loan Documents, in each case, as amended hereby, are and shall continue to be in
full force and effect and are hereby ratified and confirmed in all respects.
(c) The execution, delivery and effectiveness of this
Amendment shall not, except as expressly provided herein, operate as a waiver of
any right, power or remedy of any Bank or the Agent under any of the Loan
Documents, nor constitute a waiver of any provision of the Loan Documents,
except as expressly set forth herein.
Section 7. Fees and Expenses. The Borrower agrees to pay on demand all
the Agent's reasonable expenses in preparing, executing and delivering this
Amendment, and all related instruments and documents, including, without
limitation, the reasonable fees and out-of-pocket expenses of the Agent's
special counsel, Xxxxxxx Procter LLP.
Section 8. Execution in Counterparts. This Amendment may be executed in
any number of counterparts and by different parties hereto in separate
counterparts, each of which when so executed and delivered shall be deemed to be
an original and all of which counterparts taken together shall constitute but
one and the same instrument. Delivery of an executed counterpart of a signature
page to this Amendment by telecopier shall be effective as delivery of a
manually executed counterpart of a signature page to this Amendment.
Section 9. Governing Law. This Amendment shall be a Loan Document and
shall be governed by and construed and enforced under the laws of The
Commonwealth of Massachusetts.
[Signature Page(s) Follow]
IN WITNESS WHEREOF, the Borrower, Xxxxxxxxxx Group and the Subsidiary
Guarantors, the Banks, the Agent and the Documentation Agent have caused this
Amendment to be executed by their duly authorized officers as of the date first
set forth above.
XXXXXXXXXX COMMUNICATIONS
COMPANY, as Borrower and Pledgor
By /s/ Xxxxxxx X. Xxxxxx
---------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Senior Vice President
XXXXXXXXXX GROUP, INC., as Pledgor
By /s/ Xxxxxxx X. Xxxxxx
---------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
ALLFINCO, INC., as Pledgor and
Guarantor
By /s/ Xxxxxxx X. Xxxxxx
---------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
KATV, LLC, as Pledgor and Guarantor
By /s/ Xxxxxxx X. Xxxxxx
---------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
KTUL, LLC, as Pledgor and Guarantor
By /s/ Xxxxxxx X. Xxxxxx
---------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
WSET, INCORPORATED, as Pledgor and
Guarantor
By /s/ Xxxxxxx X. Xxxxxx
---------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
XXXXXXXXXX TELEVISION PRODUCTIONS,
INC., as Pledgor and Guarantor
By /s/ Xxxxxxx X. Xxxxxx
---------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
TV ALABAMA, INC., as Pledgor and
Guarantor
By /s/ Xxxxxxx X. Xxxxxx
---------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
HARRISBURG TELEVISION, INC., as
Pledgor and Guarantor
By /s/ Xxxxxxx X. Xxxxxx
---------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
WCIV, LLC, as Pledgor and Guarantor
By /s/ Xxxxxxx X. Xxxxxx
---------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
ACC LICENSEE, INC., as Pledgor and
Guarantor
By /s/ Xxxxxxx X. Xxxxxx
---------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
FLEET NATIONAL BANK, individually
and as Agent
By /s/ Xxx X. Xxxxxxxx
---------------------------------
Name: Xxx X. Xxxxxxxx
Title: Director
DEUTSCHE BANK TRUST COMPANY
AMERICAS
By /s/ Xxxxxxx Xxxxxxx
---------------------------------
Name: Xxxxxxx Xxxxxxx
Title: Director
