EXECUTION COPY
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AMENDMENT AND RESTATEMENT
Dated as of May 9, 2001
to
CREDIT AGREEMENT
Dated as of May 28, 1998
between
XXXXXXXX BROADCAST GROUP, INC.,
The SUBSIDIARY GUARANTORS Party Hereto,
The LENDERS Party Hereto,
and
THE CHASE MANHATTAN BANK,
as Administrative Agent
--------------------------------
X.X. XXXXXX SECURITIES INC.,
as Advisor, Lead Arranger and Bookrunner
DEUTSCHE BANC ALEX. XXXXX INC., as Syndication Agent
THE BANK OF NOVA SCOTIA and FIRST UNION SECURITIES, INC.,
as Co-Documentation Agents
$1,100,000,000
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AMENDMENT AND RESTATEMENT
AMENDMENT AND RESTATEMENT dated as of May 9, 2001 between:
XXXXXXXX BROADCAST GROUP, INC., a corporation duly organized and validly
existing under the laws of the State of Maryland (the "BORROWER"); each of the
Subsidiaries of the Borrower identified under the caption "SUBSIDIARY
GUARANTORS" on the signature pages hereto (individually, a "SUBSIDIARY
GUARANTOR" and, collectively, the "SUBSIDIARY GUARANTORS" and, together with the
Borrower, the "OBLIGORS"); and THE CHASE MANHATTAN BANK, as agent for the
Lenders (in such capacity, together with its successors in such capacity, the
"ADMINISTRATIVE AGENT").
The Borrower, the Subsidiary Guarantors, the lenders party
thereto (the "LENDERS"), the Administrative Agent and NationsBank of Texas,
N.A., as Documentation Agent are parties to a Credit Agreement dated as of May
28, 1998 (as amended by Amendment No. 1 dated as of December 21, 1999 and
Amendment No. 2 dated as of July 21, 2000, the "CREDIT AGREEMENT"), providing,
subject to the terms and conditions thereof, for extensions of credit (by making
of loans and issuing letters of credit) to be made by the Lenders to the
Borrower in an original aggregate principal or face amount not exceeding
$1,750,000,000. The Borrower, the Lenders and the Administrative Agent wish to
amend the Credit Agreement in certain respects and to restate the Credit
Agreement in its entirety as so amended.
Accordingly, the parties hereto hereby agree to amend the
Credit Agreement as set forth herein and to restate the Credit Agreement in its
entirety to read as set forth in the Credit Agreement, which is incorporated
herein by reference, with the amendments specified in Section 2 below:
Section 1. DEFINITIONS. Except as otherwise defined in this
Amendment and Restatement, terms defined in the Credit Agreement are used herein
as defined therein.
Section 2. AMENDMENTS. Subject to the satisfaction of the
conditions precedent specified in Section 4 hereof, but effective as of the date
hereof, the Credit Agreement shall be amended as follows:
2.01. References in the Credit Agreement (including references
to the Credit Agreement as amended hereby) to "this Agreement" (and indirect
references such as "hereunder", "hereby", "herein" and "hereof") shall be
deemed to be references to the Credit Agreement as amended hereby.
2.02. Section 1.01 of the Credit Agreement is hereby amended
by adding the following new definitions (to the extent not already included in
said Section 1.01) and inserting the same in the appropriate alphabetical
locations and by amending in their entirety the following definitions (to the
extent already included in said Section 1.01), as follows:
AMENDMENT AND RESTATEMENT
NY3:#7267102v2
"AMENDMENT AND RESTATEMENT EFFECTIVE DATE" means May 16, 2001.
"APPLICABLE RATE" means, for any day, with respect to any ABR
Loan or Eurodollar Loan, or with respect to the commitment fees payable
hereunder, as the case may be, the applicable rate per annum set forth
below under the caption "ABR Spread", "Eurodollar Spread" or
"Commitment Fee Rate", respectively, based upon the Total Indebtedness
Ratio as of the most recent determination date; PROVIDED that until the
Quarterly Date on or immediately following the date of receipt of the
financial statements of the Borrower delivered pursuant to Section
6.01(b) (and the related Financial Officer's certificate) for the
fiscal quarter ending December 31, 2001 the "Applicable Rate" shall be
determined by reference to the certificate delivered pursuant to
Section 5.01(e)(ii) (but in no event shall the Applicable Rate be less
than the applicable rate per annum set forth in the first row from the
top of the table below):
===================================== ========================== ========================== ========================
Total Indebtedness Ratio: ABR Eurodollar Commitment
-------------------------
Spread (%) Spread (%) Fee Rate (%)
---------- ---------- ------------
------------------------------------- -------------------------- -------------------------- ------------------------
Greater than or equal to 6.50 to 1 1.75 3.00 0.50
------------------------------------- -------------------------- -------------------------- ------------------------
Less than 6.50 to 1 and greater 1.50 2.75 0.50
than or equal to 6.00 to 1
------------------------------------- -------------------------- -------------------------- ------------------------
Less than 6.00 to 1 and greater 1.25 2.50 0.50
than or equal to 5.50 to 1
------------------------------------- -------------------------- -------------------------- ------------------------
Less than 5.50 to 1 and greater 1.00 2.25 0.375
than or equal to 5.00 to 1
------------------------------------- -------------------------- -------------------------- ------------------------
Less than 5.00 to 1 and greater 0.50 1.75 0.375
than or equal to 4.50 to 1
------------------------------------- -------------------------- -------------------------- ------------------------
Less than 4.50 to 1 and greater 0.25 1.50 0.25
than or equal to 4.00 to 1
------------------------------------- -------------------------- -------------------------- ------------------------
Less than 4.00 to 1 0 1.25 0.25
===================================== ========================== ========================== ========================
For purposes of the foregoing (but subject to the proviso above), (i)
the Total Indebtedness Ratio shall be determined as of the end of each
fiscal quarter of the Borrower's fiscal year based upon the Borrower's
consolidated financial statements delivered pursuant to Section 6.01(a)
or (b) (and as set forth in the related certificate of a Financial
Officer delivered pursuant to Section 6.01(c)) and (ii) each change in
the Applicable Rate resulting from a change in the Total Indebtedness
Ratio shall be effective on the date three Business Days after the
receipt by the Administrative Agent of such
certificate and shall remain effective until the effective date of the
next such change; PROVIDED that, notwithstanding the foregoing, the
Applicable Rate shall not as a consequence of this proviso be reduced
for any period during which an Event of Default shall have occurred and
be continuing. Notwithstanding the foregoing, the Applicable Rate with
respect to any Incremental Term Loan and any Incremental Term Loan
Commitment means the rate per annum for such Incremental Term Loan and
Incremental Term Loan Commitment agreed to by the Borrower and the
respective Incremental Term Loan Lender in the related Incremental Term
Loan Activation Notice.
"INCREMENTAL TERM LOAN COMMITMENT" means, with
respect to each Lender, the commitment, if any, of such Lender to make
one or more Incremental Term Loans on and after the related Incremental
Term Loan Activation Date in an aggregate principal amount up to but
not exceeding the amount set opposite the name of such Lender on the
Incremental Term Loan Activation Notice under the caption "Incremental
Term Loan Commitment" or in the Assignment and Acceptance pursuant to
which such Lender shall have assumed such Incremental Term Loan
Commitment, as applicable. The aggregate principal amount of the
Incremental Term Loan Commitments and the Incremental Term Loans on the
Effective Date is zero and shall not exceed $500,000,000.
"INCREMENTAL TERM LOAN COMMITMENT TERMINATION DATE"
means the Amendment and Restatement Effective Date.
"INCREMENTAL TERM LOAN MATURITY DATE" means the
Quarterly Date falling on or nearest to September 30, 2009.
"INCREMENTAL TERM LOAN PRINCIPAL PAYMENT DATES" means
the Quarterly Dates falling on or nearest to March 31, June 30,
September 30 and December 31 of each year, commencing with March 31,
2003, through and including the Incremental Term Loan Maturity Date.
"INTEREST EXPENSE" means, for any period, the sum,
for the Borrower and its Subsidiaries (determined on a consolidated
basis without duplication in accordance with GAAP), of the following
(subject to paragraphs (d) and (e) of Section 1.05): (a) all interest
in respect of Indebtedness accrued or capitalized during such period
(whether or not actually paid during such period) PLUS (b) the net
amounts payable (or MINUS the net amounts receivable) under Interest
Rate Protection Agreements accrued during such period (whether or not
actually paid or received during such period) MINUS (c) all cash
interest income received during such period; PROVIDED that the
calculation of Interest Expense for any period shall not be increased
or decreased by any amount reflected on the Borrower's relevant income
statement with respect to changes in the fair value of derivative
instruments during such period. Any reference herein to calculating
Interest Expense for any period on a "pro forma" basis means that, for
purposes of the preceding clause (a), (i) the Indebtedness on the basis
of which Interest Expense is so calculated shall mean Indebtedness
outstanding as of the relevant date of calculation after giving effect
to any repayments and any incurrence of Indebtedness on such date and
(ii) such
calculation shall be made applying the respective rates of interest in
effect for such Indebtedness on such date.
"LENDER AFFILIATE" means (a) with respect to any
Lender, (i) an Affiliate of such Lender or (ii) any Person (whether a
corporation, partnership, trust or otherwise) that is engaged in
making, purchasing, holding or otherwise investing in bank loans and
similar extensions of credit in the ordinary course of its business and
is administered or managed by a Lender or an Affiliate of such Lender
and (b) with respect to any Lender that is a fund that invests in bank
loans, any other fund or trust or entity that invests in bank loans and
is advised or managed by the same investment advisor as such Lender or
by an Affiliate of such investment advisor.
"OTHER PREFERRED STOCK" means (a) Preferred Stock
issued by the Borrower, but if and only to the extent that (i) the
dividend for each share thereof shall not exceed 15% per annum of the
liquidation preference of such share and (ii) neither the Borrower nor
any of its Subsidiaries may be required to repurchase, redeem or make
sinking fund payments with respect thereto at any time or under any
circumstances prior to September 30, 2010 and (b) New HYTOPs Preferred
Stock.
"REVOLVING COMMITMENT" means, with respect to each
Lender, the commitment, if any, of such Lender to make Revolving Loans
and to acquire participations in Letters of Credit hereunder, expressed
as an amount representing the maximum aggregate amount of such Lender's
Revolving Exposure hereunder, as such commitment may be (a) reduced
from time to time pursuant to Section 2.07 or 2.09(b) and (b) reduced
or increased from time to time pursuant to assignments by or to such
Lender pursuant to Section 10.04. The initial amount of each Lender's
Revolving Commitment is set forth on Schedule 1.01 or in the Assignment
and Acceptance pursuant to which such Lender shall have assumed its
Revolving Commitment, as applicable. The original aggregate amount of
the Lenders' Revolving Commitments is $1,000,000,000 and on the
Amendment and Restatement Effective Date, the aggregate amount of the
Lenders' Revolving Commitments is $600,000,000.
"SENIOR SUBORDINATED NOTES DUE 2005 AND 2007" means,
collectively, the Senior Subordinated Notes issued by the Borrower
under the Existing Senior Subordinated Notes Indentures.
2.03. Clause (b) of Section 2.07 of the Credit
Agreement is hereby amended by adding at the end of such clause the following
new sentence:
"Notwithstanding anything to the contrary in this Agreement,
if on any date (the "TEST DATE"), the maturity date for any of
the then outstanding Senior Subordinated Notes due 2005 and
2007 or the Existing HYTOPs shall fall within six months of
the Test Date, then the Revolving Commitments shall
automatically reduce to zero on the Test Date."
2.04. Clause (a)(iii) of Section 2.08 of the Credit
Agreement is hereby amended in its entirety to read as
follows:
"(iii) to the Administrative Agent for the
account of each Incremental Term Loan Lender the outstanding
principal amount of each Incremental Term Loan of such Lender
on each Incremental Term Loan Principal Payment Date set forth
below in the principal amount equal to the percentage set
forth opposite such Incremental Term Loan Principal Payment
Date of the principal amount of such Incremental Term Loan
outstanding on the Incremental Term Loan Commitment
Termination Date (subject to adjustment pursuant to paragraph
(b) of this Section):
Incremental Term Loan Percentage (%):
---------------
Principal Payment Date
Falling on or Nearest to:
------------------------
March 31, 2003 0.25
June 30, 2003 0.25
September 30, 2003 0.25
December 31, 2003 0.25
March 31, 2004 0.25
June 30, 2004 0.25
September 30, 2004 0.25
December 31, 2004 0.25
March 31, 2005 0.25
June 30, 2005 0.25
September 30, 2005 0.25
December 31, 2005 0.25
March 31, 2006 0.25
June 30, 2006 0.25
September 30, 2006 0.25
December 31, 2006 0.25
March 31, 2007 0.25
June 30, 2007 0.25
September 30, 2007 0.25
December 31, 2007 0.25
March 31, 2008 0.25
June 30, 2008 0.25
September 30, 2008 0.25
December 31, 2008 0.25
March 31, 2009 0.25
June 30, 2009 0.25
September 30, 2009 93.5"
2.05. Clause (b) of Section 2.08 of the Credit Agreement is
hereby amended in its entirety to read as follows:
"(b) ADJUSTMENT OF AMORTIZATION SCHEDULE. (i) Notwithstanding
anything to the contrary in this Agreement, if on any date (the "TEST
DATE"), the maturity date for any of the then outstanding Senior
Subordinated Notes due 2005 and 2007 or the Existing HYTOPs shall fall
within six months of the Test Date, then the Revolving Maturity Date
and the Incremental Term Loan Maturity Date shall be accelerated to the
Test Date and all of the Loans shall thereupon be due and payable on
the Test Date, together with all interest and fees accrued thereon or
in respect thereof and any amounts payable pursuant hereto, including,
without limitation, Sections 2.13, 2.14 and 2.15.
(ii) Any prepayment of a Term Loan or an Incremental
Term Loan shall be applied to reduce the remaining scheduled
installments thereof in inverse order of maturity. To the
extent not previously paid, all Term Loans shall be due and
payable on the Term Loan Maturity Date. To the extent not
previously paid, all Incremental Term Loans shall be due and
payable on the Incremental Term Loan Maturity Date."
2.06. The third sentence of Section 6.08 of the Credit
Agreement is hereby amended in its entirety to read as follows:
"The proceeds of the Incremental Term Loans will be used by
the Borrower solely for the purpose of making a prepayment of
the Term Loans."
2.07. Section 7.01 of the Credit Agreement is hereby amended
in its entirety to read as follows:
"SECTION 7.01. INDEBTEDNESS. The Borrower will not, nor will
it permit any of its Subsidiaries to, create, incur, assume or permit
to exist any Indebtedness, except:
(a) Indebtedness to the Lenders hereunder (including
in respect of Incremental Term Loans);
(b) Indebtedness outstanding on the Amendment and
Restatement Effective Date and identified in Schedule 7.01(b);
(c) Indebtedness of the Borrower evidenced by senior
subordinated notes and subordinated guarantees thereof by
Subsidiary Guarantors issued after the date hereof (such
Indebtedness and guarantees being collectively referred to as
the "ADDITIONAL SENIOR SUBORDINATED NOTES"), PROVIDED that (i)
such notes are issued at not less than 97% of par, (ii) such
notes and guarantees shall be unsecured and such notes shall
bear interest at a fixed rate not greater than 12% per annum
on the face amount thereof, (iii) no scheduled payments,
prepayments, redemptions or sinking fund or like payments on
such notes shall be required before the tenth anniversary of
the date of issuance of such notes, (iv) the terms and
conditions of such notes shall not be more restrictive on the
Borrower and its Subsidiaries than the terms and conditions
customarily found in senior subordinated notes of similar
issuers issued under Rule 144A of the Securities Act of 1933
("RULE 144A") or in a public offering as reasonably determined
by the Administrative Agent, and the terms of subordination
thereof shall also extend to cover obligations of the Borrower
and its Subsidiaries in respect of any Hedging Agreements to
which the Borrower and any of the Lenders and their respective
Affiliates are parties and (v) no Default shall have occurred
and be continuing at the time of incurrence of such
Indebtedness or would result therefrom;
(d) Indebtedness of the Borrower evidenced by senior
subordinated notes and subordinated guarantees thereof by
Subsidiary Guarantors (such Indebtedness and guarantees being
collectively referred to as the "CONVERTED SENIOR SUBORDINATED
NOTES"), PROVIDED that (i) such notes and guarantees shall be
unsecured and such notes shall bear interest at a fixed rate
not greater than 15% per annum, (ii) no scheduled payments,
prepayments, redemptions or sinking fund or like payments on
such notes shall be required before the tenth anniversary of
the date of issuance of the Other Preferred Stock, (iii) the
terms and conditions of such notes shall not be more
restrictive on the Borrower and its Subsidiaries than the
terms and conditions customarily found in senior subordinated
notes of similar issuers issued under Rule 144A or in a public
offering as reasonably determined by the Administrative Agent,
and the terms of subordination thereof shall also extend to
cover obligations of the Borrower and its Subsidiaries in
respect of any Hedging Agreements to which the Borrower and
any Lender are parties, (iv) the Borrower shall issue such
notes pursuant to the conversion of all, but not less than
all, of the Other Preferred Stock into such notes in an
aggregate principal amount not exceeding the aggregate
liquidation preference of the Other Preferred Stock so
converted and (v) both immediately prior to such conversion of
the Other Preferred Stock and, after giving pro forma effect
thereto, no Default shall have
occurred and be continuing;
(e) Indebtedness of Subsidiaries of the Borrower to
the Borrower or to other Subsidiaries of the Borrower;
(f) Subordinated Film Indebtedness of the Borrower
and its Subsidiaries in an aggregate principal amount not
exceeding $30,000,000 at any one time outstanding, PROVIDED
that the terms and conditions of each agreement or instrument
evidencing or governing such Indebtedness shall be
satisfactory to the Administrative Agent;
(g) Indebtedness of the Borrower owing to any of the
Designated HYTOPs Subsidiaries that is subordinated on terms
satisfactory to the Administrative Agent to the obligations of
the Borrower hereunder, under the notes (if any) issued as
provided in Section 2.08(g) and under any Hedging Agreements
to which the Borrower and any of the Lenders and their
respective Affiliates are parties;
(h) Guarantees by one or more of the Obligors of the
obligations of other Persons (including, without limitation,
Affiliates); PROVIDED that the aggregate principal amount of
Indebtedness so guaranteed may not exceed $75,000,000 at any
one time outstanding;
(i) Indebtedness (including Indebtedness of the
Receivables Subsidiary) incurred in connection with any
Receivables Financing on terms satisfactory to the
Administrative Agent, PROVIDED that after giving effect
thereto the aggregate face amount of Receivables of the
Borrower and its Subsidiaries (other than any Receivables
Subsidiary) that have not been sold or financed shall be at
least $100,000,000;
(j) Indebtedness incurred in connection with capital
leases in respect of broadcast towers or equipment of the
Borrower or any of its Subsidiaries; PROVIDED that the
aggregate principal amount of such Indebtedness may not exceed
$50,000,000 at any one time outstanding;
(k) off-balance sheet Indebtedness incurred by the
Borrower or any of its Subsidiaries to finance broadcast
towers or equipment on terms satisfactory to the
Administrative Agent; PROVIDED that the aggregate principal
amount of such Indebtedness may not exceed $100,000,000 at any
one time outstanding; and
(l) additional unsecured Indebtedness of the Borrower
in an aggregate principal amount not exceeding $100,000,000 at
any one time outstanding, PROVIDED that no Default shall have
occurred and be continuing at the time of incurrence of such
Indebtedness or would result therefrom."
2.08. Clause (f) of Section 7.04 of the Credit Agreement is
hereby amended by
deleting the "and" after clause (viii) thereof and adding a new clause (x)
immediately after clause (ix) thereof to read in its entirety as follows:
"(x) in connection with any Other
Acquisition made after the Amendment and Restatement Effective
Date, if the Total Indebtedness Ratio as of the date of such
acquisition shall be greater than 5.5 to 1.0, then the
aggregate amount of Other Acquisitions made by the Borrower or
any of its Subsidiaries since the Amendment and Restatement
Effective Date shall not exceed $30,000,000 in Aggregate
Consideration unless the Borrower shall have otherwise
received the written consent of the Required Lenders; and"
2.09. Section 7.05 of the Credit Agreement is hereby amended
by redesignating clause (j) as clause (k) and inserting a new clause (j) as
follows:
"(j) the Borrower or any of its Subsidiaries may sell
the Broadcast License relating to KETK under the terms and
conditions contained in the Asset Purchase Agreement dated as
of February 24, 1999 by and among Xxxxxxxx Properties LLC,
KETK Licensee, L.P. and Comcorp Broadcasting, Inc.; and"
2.10. Section 7.07 of the Credit Agreement is hereby amended
by (x) amending clause (i) in its entirety to read "intentionally deleted" and
(y) amending clause (o) to read in its entirety as follows:
"(o) additional Investments made after the Amendment
and Restatement Effective Date either (A) identified on Schedule 7.07
or (B) in an amount up to but not exceeding (i) $15,000,000 in the
aggregate if at the time of the making of such Investment, the Total
Indebtedness Ratio is greater than 5.5 to 1.0 or (ii) $100,000,000 in
the aggregate if at the time of the making of such Investment, the
Total Indebtedness Ratio is less than or equal to 5.5 to 1.0, provided
that, in each case, no Default shall have occurred and be continuing at
the time of the making of such Investment or would result therefrom;
and"
2.11. Clause (e) of Section 7.08 of the Credit Agreement is
hereby amended in its entirety to read as follows:
"(e) the Borrower may purchase, in one transaction or
a series of transactions, its Class A Common Stock and its Class B
Common Stock, PROVIDED that (i) the aggregate purchase price
(including, without limitation, cash payments, the principal amount of
promissory notes and Indebtedness assumed, cash payments under Hedging
Agreements relating to capital stock of the Borrower, and the fair
market value of property delivered) paid, delivered or assumed in
respect of such purchases by the Borrower therefor subsequent to the
Amendment and Restatement Effective Date shall not exceed $175,000,000
and (ii) as at the date of the making of such Restricted Payment, the
Total Indebtedness Ratio is not greater than (A) 5.5 to 1.0 or (B) the
maximum ratio permitted under Section 7.11(d) on such date minus 0.25;
PROVIDED FURTHER that if the
Borrower is unable to comply with the requirements of clause (ii)(A)
above, then the aggregate purchase price of purchases permitted under
this clause (e) shall be permitted only to the extent that the Borrower
receives Net Available Proceeds of any Equity Issuance (not otherwise
applied as permitted under this Agreement) subsequent to the Amendment
and Restatement Effective Date;"
2.12. Section 7.11 of the Credit Agreement is hereby amended
in its entirety to read as follows:
"SECTION 7.11. CERTAIN FINANCIAL COVENANTS.
(a) INTEREST COVERAGE RATIO. The Borrower will not
permit the Interest Coverage Ratio on any date to be less than the
ratio set forth below opposite the period during which such date falls:
Period Ratio
------ -----
From the Effective
Date through June 30, 2002 1.70 to 1
From July 1, 2002
through December 31, 2003 1.80 to 1
From January 1, 2004
through December 31, 2004 2.20 to 1
From January 1, 2005
and at all times thereafter 2.50 to 1
(b) FIXED CHARGES RATIO. The Borrower will not permit
the Fixed Charges Ratio to be less than or equal to 1.05 to 1 at any
time.
(c) SENIOR INDEBTEDNESS RATIO. The Borrower will not
permit the Senior Indebtedness Ratio on any date to be greater than the
ratio set forth below opposite the period during which such date falls:
Period Ratio
------ -----
From the Effective
Date through June 30, 2002 4.50 to 1
From July 1, 2002
through December 31, 2003 4.00 to 1
From January 1, 2004
and at all times thereafter 3.50 to 1
(d) TOTAL INDEBTEDNESS RATIO. The Borrower will not
permit the Total Indebtedness Ratio on any date to be greater than the
ratio set forth below opposite the period during which such date falls:
Period Ratio
------ -----
From the Effective
Date through June 30, 2002 7.00 to 1
From July 1, 2002
through December 31, 2003 6.50 to 1
From January 1, 2004
through December 31, 2004 5.50 to 1
From January 1, 2005
and at all times thereafter 5.00 to 1
(e) FILM OBLIGATIONS. The Borrower will not, nor will
it permit any of its Subsidiaries to, purchase, redeem, retire or
otherwise acquire for value, or set apart any money for a sinking,
defeasance or other analogous fund for, the purchase, redemption,
retirement or other acquisition of, or make any voluntary payment or
prepayment of the principal of or interest on, or any other amount
owing in respect of, any Film Obligations, except for (a) regularly
scheduled payments in respect thereof required pursuant to the
instruments evidencing such Film Obligations and (b) with the consent
of the Administrative Agent, prepayments of Film Obligations not
exceeding $50,000,000 in the aggregate after the date hereof."
2.13. Clause (ii) of Section 10.04(b) of the Credit Agreement
is hereby amended in its entirety to read as follows:
"(ii) except in the case of an assignment to a Lender or a Lender
Affiliate or an assignment of the entire remaining amount of the
assigning Lender's Commitment(s) and/or Loan(s), the amount of the
Commitment(s) and/or Loan(s) of the assigning Lender subject to each
such assignment (determined as of the date the Assignment and
Acceptance with respect to such assignment is delivered to the
Administrative Agent) shall not be less than $5,000,000 and, after
giving effect to such assignment, the assigning Lender shall not have
Commitment(s) and/or Loan(s) less than $5,000,000, in each case unless
each of the Borrower (except if an Event of Default as described in
clauses (a), (b), (g) or (h) of Article VIII occurs and is continuing)
and the Administrative Agent otherwise consent,".
2.14. Clause (b)(vi) of Section 10.12 of the Credit Agreement
is hereby amended in its entirety to read as follows:
"(vi) subject to an agreement containing provisions
substantially the same as those of this paragraph (b), to (A)
any assignee of or Participant in, or any prospective assignee
of or Participant in, any of its rights or obligations under
this Agreement or (B) any actual or prospective counterparty
(or its advisors) to any swap or derivative transaction
relating to the Borrower and its obligations,".
2.15. Schedules 4.15(b) and 7.04 of the Credit Agreement are
hereby replaced in their entirety with Schedules 4.15(b) and 7.04 attached to
this Amendment and Restatement and each reference in the Credit Agreement to
such Schedules shall be deemed to refer to the replacement Schedules attached to
this Amendment and Restatement. Schedules 7.01(b) and 7.07 attached to this
Amendment and Restatement shall be incorporated into the table of contents of
the Credit Agreement and deemed attached thereto.
Section 3. REPRESENTATIONS AND WARRANTIES. The Borrower
represents and warrants to the Lenders that (a) the representations and
warranties set forth in Article IV of the Credit Agreement are true and complete
on the date hereof as if made on and as of the date hereof and as if each
reference in said Article IV to "this Agreement" included reference to this
Amendment and Restatement and (b) both immediately prior to and after giving
effect to this Amendment and Restatement, no Default shall have occurred and be
continuing.
Section 4. CONDITIONS PRECEDENT. The amendments to the Credit
Agreement set forth in Section 2 shall become effective, as of the date hereof,
upon receipt by the Administrative Agent of each of the following documents,
each of which shall be satisfactory to the Administrative Agent in form and
substance:
(1) AMENDMENT AND RESTATEMENT. The written consent of the
Required Lenders to this Amendment and Restatement and one or more
counterparts of this Amendment and Restatement duly executed and
delivered by each party hereto.
(2) CORPORATE DOCUMENTS. Certified copies of all corporate
authority for each Obligor (including board of director resolutions and
evidence of the incumbency of officers for each Obligor) with respect
to the execution, delivery and performance of this Amendment and
Restatement and the Credit Agreement as amended hereby and extensions
of credit under the Credit Agreement as amended hereby and each other
document to be delivered by each Obligor from time to time in
connection with the Credit Agreement as amended hereby (and the
Administrative Agent and each Lender may conclusively rely on such
certificate until it receives notice in writing from each Obligor to
the contrary).
(3) OPINION OF COUNSEL TO THE OBLIGORS. A favorable written
opinion (addressed to the Administrative Agent and the Lenders and
dated as of a date acceptable to the Administrative Agent) of Xxxxxx &
Xxxxxxxx, P.A., counsel for the Obligors in form and
substance satisfactory to the Administrative Agent covering such
matters relating to the Obligors and this Amendment and Restatement as
the Administrative Agent shall reasonably request (and each Obligor
hereby instructs such counsel to deliver such opinion to the Lenders
and the Administrative Agent).
(4) EVIDENCE OF REDUCTION IN REVOLVING COMMITMENTS. Evidence
that the aggregate Revolving Commitments of the Revolving Lenders shall
have been permanently reduced to $600,000,000 (it being agreed by the
parties hereto that Section 2.07(d) of the Credit Agreement shall not
be operative as to such reduction).
(5) OTHER DOCUMENTS. Such other documents as the
Administrative Agent or any Lender or Milbank, Tweed, Xxxxxx & XxXxxx
LLP, special
New York counsel to Chase, may reasonably request.
(6) AMENDMENT FEE. The Administrative Agent shall have
received for account of each Lender that has consented in writing to
the draft Amendment No. 3 dated as of May 9, 2001 by 5:00 p.m.,
New
York City time, May 9, 2001 an amendment fee in an amount equal to
0.25% of the sum of Revolving Exposures and unused Revolving
Commitments and outstanding Term Loans and unused Term Loan Commitments
of each such Lender on the Amendment and Restatement Effective Date.
Section 5. CONFIRMATION OF COLLATERAL SECURITY. Each Obligor
hereby confirms that each of the Security Documents shall continue in effect for
the benefit of the Administrative Agent and the Lenders with respect to the
obligations of the Obligors under the Credit Agreement as amended hereby.
Section 6. MISCELLANEOUS. Except as herein provided, the
Credit Agreement shall remain unchanged and in full force and effect. This
Amendment and Restatement may be executed in any number of counterparts, all of
which taken together shall constitute one and the same amendatory instrument and
any of the parties hereto may execute this Amendment and Restatement by signing
any such counterpart. This Amendment and Restatement shall be governed by, and
construed in accordance with, the law of the State of
New York.
[remainder of page intentionally left blank]
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment and Restatement to be duly executed and delivered as of the day and
year first above written.
XXXXXXXX BROADCAST GROUP, INC.
By:_______________________________________
Name: Xxxxx X. Xxx
Title: Executive Vice President
SUBSIDIARY GUARANTORS
CHESAPEAKE TELEVISION, INC.
KSMO, INC.
XXXXXXXX RADIO OF BUFFALO, INC.
XXXXXXXX RADIO OF LOS ANGELES, INC.
XXXXXXXX RADIO OF MEMPHIS, INC.
XXXXXXXX RADIO OF NASHVILLE, INC.
XXXXXXXX RADIO OF ST. LOUIS, INC.
XXXXXXXX RADIO OF XXXXXX-XXXXX, INC.
TUSCALOOSA BROADCASTING, INC.
WCGV, INC.
XXXXXXXX ACQUISITION IV, INC.
WLFL, INC.
XXXXXXXX MEDIA I, INC.
WSMH, INC.
XXXXXXXX MEDIA II, INC.
WSTR LICENSEE, INC.
WGME, INC.
XXXXXXXX MEDIA III, INC.
WTTE, CHANNEL 28 LICENSEE, INC.
WTTO, INC.
WTVZ, INC.
WYZZ, INC.
KOCB, INC.
FSF-TV, INC.
KSMO LICENSEE, INC.
XXXXXXXX RADIO OF GREENVILLE LICENSEE, INC.
XXXXXXXX RADIO OF LOS ANGELES LICENSEE, INC.
XXXXXXXX RADIO OF MEMPHIS LICENSEE, INC.
XXXXXXXX RADIO OF NASHVILLE LICENSEE, INC.
WDKY, INC.
WYZZ LICENSEE, INC.
KLGT, INC.
XXXXXXXX ACQUISITION II, INC.
XXXXXXXX COMMUNICATIONS, INC.
XXXXXXXX RADIO OF PORTLAND LICENSEE, INC.
XXXXXXXX RADIO OF ROCHESTER LICENSEE, INC.
TUSCALOOSA BROADCASTING LICENSEE, INC.
WNNE LICENSEE, INC.
WPTZ LICENSEE, INC.
WSYX LICENSEE, INC.
WGGB, INC.
WTWC, INC.
XXXXXXXX COMMUNICATIONS II, INC.
XXXXXXXX HOLDINGS I, INC.
XXXXXXXX HOLDINGS II, INC.
XXXXXXXX HOLDINGS III, INC.
XXXXXXXX TELEVISION COMPANY, INC.
XXXXXXXX TELEVISION OF BUFFALO, INC.
XXXXXXXX TELEVISION OF CHARLESTON, INC.
XXXXXXXX TELEVISION OF NASHVILLE, INC.
XXXXXXXX TELEVISION OF NEVADA, INC.
XXXXXXXX TELEVISION OF OKLAHOMA, INC.
XXXXXXXX TELEVISION OF TENNESSEE, INC.
XXXXXXXX TELEVISION OF UTICA, INC.
XXXXXXXX TELEVISION OF LICENSE HOLDER, INC.
XXXXXXXX TELEVISION OF DAYTON, INC.
XXXXXXXX MEDIA IV, INC.
XXXXXXXX MEDIA V, INC.
CASCOM INTERNATIONAL, INC.
XXXXXXXX COMMUNICATIONS OF PORTLAND, INC.
By: ______________________________________
Name: Xxxxx X. Xxx
Title: Secretary (As to All)
WGME LICENSEE, LLC
By: WGME, INC. - Member
By: ______________________________________
Name: Xxxxx X. Xxx
Title: Secretary
WICD LICENSEE, LLC
WICS LICENSEE, LLC
KGAN LICENSEE, LLC
By: XXXXXXXX ACQUISITION IV, INC. - Member
By: ______________________________________
Name: Xxxxx X. Xxx
Title: Secretary
WSMH LICENSEE, LLC
By: WSMH, INC. - Member
By: ______________________________________
Name: Xxxxx X. Xxx
Title: Secretary
XXXXXXXX RADIO OF NEW ORLEANS, LLC
By: XXXXXXXX COMMUNICATIONS, INC. - Member
By: ______________________________________
Name: Xxxxx X. Xxx
Title: Secretary
WPGH LICENSEE, LLC
KDNL LICENSEE, LLC
By: XXXXXXXX MEDIA I, INC. - Member
By: ______________________________________
Name: Xxxxx X. Xxx
Title: Secretary
WTVZ LICENSEE, LLC
By: WTVZ, INC. - Member
By: ______________________________________
Name: Xxxxx X. Xxx
Title: Secretary
CHESAPEAKE TELEVISION LICENSEE, LLC
KABB LICENSEE, LLC
SCI - SACRAMENTO LICENSEE, LLC
WLOS LICENSEE, LLC
By: CHESAPEAKE TELEVISION, INC. - Member
By: ______________________________________
Name: Xxxxx X. Xxx
Title: Secretary
XXXXXXXX RADIO OF BUFFALO LICENSEE, LLC
By: XXXXXXXX RADIO OF BUFFALO, INC. -
Member
By: ______________________________________
Name: Xxxxx X. Xxx
Title: Secretary
XXXXXXXX PROPERTIES, LLC
By: XXXXXXXX COMMUNICATIONS, INC. -
Member
By: ______________________________________
Name: Xxxxx X. Xxx
Title: Secretary
XXXXXXXX RADIO OF NEW ORLEANS LICENSEE, LLC
By: XXXXXXXX RADIO OF NEW ORLEANS, LLC -
Member
By: XXXXXXXX COMMUNICATIONS, INC. - Member
By: ______________________________________
Name: Xxxxx X. Xxx
Title: Secretary
XXXXXXXX RADIO OF ST. LOUIS LICENSEE, LLC
By: XXXXXXXX RADIO OF ST. LOUIS, INC. -
Member
By: ______________________________________
Name: Xxxxx X. Xxx
Title: Secretary
KLGT LICENSEE, LLC
By: KLGT, INC. - Member
By: ______________________________________
Name: Xxxxx X. Xxx
Title: Secretary
WCGV LICENSEE, LLC
XXXXXXXX RADIO OF MILWAUKEE LICENSEE, LLC
By: WCGV, INC. - Member
By: ______________________________________
Name: Xxxxx X. Xxx
Title: Secretary
XXXXXXXX RADIO OF NORFOLK LICENSEE, LLC
By: TUSCALOOSA BROADCASTING, INC. -
Member
By: ______________________________________
Name: Xxxxx X. Xxx
Title: Secretary
XXXXXXXX RADIO OF KANSAS CITY LICENSEE, LLC
WCHS LICENSEE, LLC
By: XXXXXXXX MEDIA III, INC. - Member
By: ______________________________________
Name: Xxxxx X. Xxx
Title: Secretary
SCI - INDIANA LICENSEE, LLC
KUPN LICENSEE, LLC
WEAR LICENSEE, LLC
By: XXXXXXXX MEDIA II, INC. - Member
By: ______________________________________
Name: Xxxxx X. Xxx
Title: Secretary
WLFL LICENSEE, LLC
By: WLFL, INC. - Member
By: ______________________________________
Name: Xxxxx X. Xxx
Title: Secretary
WTTO LICENSEE, LLC
By: WTTO, INC. - Member
By: ______________________________________
Name: Xxxxx X. Xxx
Title: Secretary
WTWC LICENSEE, LLC
By: WTWC, INC. - Member
By: ______________________________________
Name: Xxxxx X. Xxx
Title: Secretary
WGGB LICENSEE, LLC
By: WGGB, INC. - Member
By: ______________________________________
Name: Xxxxx X. Xxx
Title: Secretary
XXXXXXXX RADIO OF XXXXXX-XXXXX, LLC
BY: XXXXXXXX RADIO OF XXXXXX-XXXXX, INC. -
Member
By: ______________________________________
Name: Xxxxx X. Xxx
Title: Secretary
KOCB LICENSEE, LLC
By: KOCB, INC. - Member
By: ______________________________________
Name: Xxxxx X. Xxx
Title: Secretary
WDKY LICENSEE, LLC
By: WDKY, INC.
By: ______________________________________
Name: Xxxxx X. Xxx
Title: Secretary
KOKH LICENSEE, LLC
By: Xxxxxxxx Television of Oklahoma, Inc.
By:_______________________________________
Name: Xxxxx X. Xxx
Title: Secretary
XXXXXXXX ACQUISITION VII, INC.
XXXXXXXX ACQUISITION VIII, INC.
XXXXXXXX ACQUISITION IX, INC.
XXXXXXXX ACQUISITION X, INC.
XXXXXXXX ACQUISITION XI, INC.
XXXXXXXX ACQUISITION XII, INC.
By:_______________________________________
Name: Xxxxx X. Xxx
Title: Secretary (as to all)
WCWB LICENSEE, LLC
By: Xxxxxxxx Media, I - Member
By:_______________________________________
Name: Xxxxx X. Xxx
Title: Secretary
WUPN LICENSEE, LLC
By: Xxxxxxxx Television of Buffalo, Inc.
By:_______________________________________
Name: Xxxxx X. Xxx
Title: Secretary
WUPX LICENSEE, LLC
By: Xxxxxxxx Television of Tennessee, Inc.
By:_______________________________________
Name: Xxxxx X. Xxx
Title: Secretary
ADMINISTRATIVE AGENT
THE CHASE MANHATTAN BANK,
as Administrative Agent
By:_______________________________________
Name:
Title:
SCHEDULE 4.15(b)
INVESTMENTS
NOTES RECEIVABLE
XXXXXXXX $ 45,575,535
Xxxxxxx Xxxxx $ 6,598,411
Gerstell $ 1,642,251
G1440, Inc. $ 7,083,784
Acrodyne Communications, Inc. $ 1,341,247
PURCHASE OPTIONS BY THIRD PARTIES
KETK/KLSB Licenses $ 1,822,457
INVESTMENTS
Allegiance Capital, LP. $ 5,351,598
Appforge $ 500,000
Auburn Tower $ 2,136,324
Chatfish $ 625,000
G1440, Inc. $ 8,113,083
XxxXxxxxXxxxx.xxx $ 525,000
Investments in Licensees $ 712,230
Sterling Venture partners, LP. $ 1,250,000
Synergy Brands, Inc. $ 764,101
WPTT - CRI Subordinated Debenture $ 94,432
VisionAir $ 3,000,000
SCHEDULE 7.01(b)
EXISTING INDEBTEDNESS
Amended & Restated Bank Credit Facility $ 867,000,000
Indenture dated August 28, 1995 $ 300,000,000
United States Trust Company of NY, as Trustee
10% Senior Subordinated Notes due 0000
Xxxxxxxxx dated July 2, 1997 $ 200,000,000
First Union National Bank of NC, as Trustee
9% Senior Subordinated Notes due 0000
Xxxxxxxxx dated December 12, 1997 $ 250,000,000
United States Trust Company of NY, as Trustee
8-3/4% Senior Subordinated Notes due 2007
Xxxxx Loan $ 6,542,083
Note - KABB Land $ 78,777
Note - WBFF Tower $ 3,004,876
Note - WBFF Building $ 517,062
Capitalized Lease - Acrodyne Building $ 3,765,404
Capitalized Lease - SBG Corporate Headquarters Building $ 7,716,360
Capitalized Lease - WPGH Studio $ 1,476,036
Capitalized Lease - KRRT LMA $ 1,016,302
Capitalized Lease - WFBC LMA $ 1,048,687
Capitalized Lease - WTTA LMA $ 10,575,312
Capitalized Lease - WTTE LMA $ 2,171,998
Capitalized Lease - AS400 Equipment $ 429,427
Capitalized Lease - KMWB Tower $ 5,535,884
Capitalized Lease - KVWB Tower $ 1,125,406
Capitalized Lease - American Tower $ 21,060,516
Capitalized Lease - WPGH Tower $ 12,768,154
Guarantee of G1440 San Francisco Building Lease $ 384,970
Guarantee of G1440 Baltimore Building Lease $ 581,299
Guarantee of G1440 Computer Equipment $ 4,663
Guarantee of G1440 Office Furniture $ 6,886
Letter of Credit for KMWB Tower Lease $ 200,000
Letter of Credit for WTTA Building Lease $ 1,225,000
Debt Discounts - Swap Terminations $ (3,465,582)
Debt Discounts - 97 Notes $ (657,416)
SCHEDULE 7.04
APPROVED ACQUISITIONS
1. Xxxxxxxx Communications, Inc. or its subsidiary intends to acquire the assets
of television broadcast station WCWB-TV pursuant to that certain Asset Purchase
Agreement dated November 15, 1999 between WPTT, Inc. and Xxxxxxxx
Communications, Inc. FCC approval is pending.
2. A subsidiary of Xxxxxxxx Broadcast Group, Inc. ("Xxxxxxxx") intends to
acquire WABM-TV, Birmingham, Alabama from a subsidiary of Glencairn, Ltd.
pursuant to that certain Plan and Agreement of Merger dated November 15, 1999.
FCC approval is pending.
3. A subsidiary of Xxxxxxxx intends to acquire television broadcast station
KRRT-TV, San Antonio, Texas from a subsidiary of Glencairn pursuant to that
certain Plan and Agreement of Merger dated November 15, 1999. FCC approval is
pending.
4. A subsidiary of Xxxxxxxx intends to acquire television broadcast station
WVTV-TV, Milwaukee, Wisconsin from a subsidiary of Glencairn pursuant to that
certain Plan and Agreement of Merger dated November 15, 1999. FCC approval is
pending.
5. A subsidiary of Xxxxxxxx intends to acquire television broadcast station
WRDC-TV, Raleigh, North Carolina pursuant to that certain Plan and Agreement of
Merger dated November 15, 1999. FCC approval is pending.
6. A subsidiary of Xxxxxxxx intends to acquire television broadcast station
WBSC-TV (formerly WFBC-TV), Anderson, South Carolina from a subsidiary of
Glencairn pursuant to that certain Plan and Agreement of Merger dated November
15, 1999. FCC approval is pending.
7. A subsidiary of Xxxxxxxx intends to acquire television broadcast station
KOKH-TV, Oklahoma City, Oklahoma from Xxxxxxxx Broadcasting Company IV, Inc.
pursuant to that certain Merger Agreement dated March 27, 2000. FCC approval is
pending.
8. A subsidiary of Xxxxxxxx intends to acquire all of the assets, including the
FCC licenses of Grant Television II LLC with respect to WNYO-TV, Buffalo,
New
York. Xxxxxxxx'x ability to close on such acquisition is subject to FCC
approval. No such filing at the FCC is pending.
9. Xxxxxxxx has exercised its option to acquire the assets of television
broadcast station WUXP-TV, Nashville, Tennessee. FCC approval is pending.
10. Xxxxxxxx has exercised its option to acquire the assets of television
broadcast station WUPN-TV, Greensboro, North Carolina. FCC approval is pending.
11. Xxxxxxxx intends to acquire television broadcast stations WUTV-TV, Buffalo,
New York;
WUHF-TV, Rochester,
New York; WMSN-TV, Madison, Wisconsin; WZTV-TV, Nashville,
Tennessee; WRLH-TV, Richmond, Virginia; and WXLV-TV, Winston-Salem, North
Carolina pursuant to an Agreement and Plan of Merger effective as of February
23, 1998 by and among Xxxxxxxx and Xxxxxxxx Broadcasting Company II, Inc. FCC
approval is pending.
12. WPTT OPTION - Xxxxxxxx Broadcast Group, Inc. ("Xxxxxxxx") has an option to
convert non-voting shares of WPTT pursuant to that certain Twenty Year 8.5%
Subordinated Debenture due 2011.
13. WDBB LICENSE OPTION - Pursuant to three (3) Option Agreements dated November
9, 1995, Xxxxxxxx has an option to acquire all of the stock of WDBB-TV, Inc.
14. WFGX-TV OPTION - Pursuant to an Option Agreement dated February 7, 1996,
Xxxxxxxx has an option to acquire all of the Assets, including the FCC licenses
of television broadcast station WFGX-TV.
15. GLENCAIRN OPTION - Pursuant to five (5) Option Agreements dated May 3, 1995,
Xxxxxxxx has an option to acquire a total of 97 shares of convertible non-voting
capital stock of Glencairn, Ltd.
SCHEDULE 7.07
CONTEMPLATED INVESTMENTS
Acrodyne Communications, Inc. $ 2,658,753
G1440, Inc. $ 916,216
Allegiance Capital, LP. $ 9,233,510
Sterling Venture Partners, LP. $ 3,750,000
------------
Total $ 16,558,479
