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EXHIBIT 10.2
FIRST AMENDMENT
TO
CREDIT AGREEMENT
THIS FIRST AMENDMENT TO CREDIT AGREEMENT, effective as of June 11, 1999
(this "Amendment" or this "First 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)
(collectively, the "Lenders"), 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
UNION BANK OF CALIFORNIA, N.A., KEYBANK NATIONAL ASSOCIATION, and BANK OF
MONTREAL, CHICAGO BRANCH as co-agents ("Co-Agents").
This Amendment amends that certain Credit Agreement dated as of January
22, 1999, between the Borrower, the Lenders, the Administrative Agent, the
Documentation Agent and the Co-Agents (as amended hereby and as further
amended, modified, restated or supplemented from time to time, the "Credit
Agreement") and the other Credit Documents referred to therein. All capitalized
terms not otherwise defined in this Amendment shall have the meanings assigned
to them in the Credit Agreement.
RECITALS
A. Pursuant to the Credit Agreement, the Lenders have agreed, among
other things, to provide to the Borrower term and revolving credit facilities
in an aggregate principal amount of $325,000,000.
B. The Borrower intends to issue additional shares of its common stock
pursuant to an amended registration statement on Form S-1 or S-3 (originally
filed on April 9, 1998) (the "1999 Equity Issuance").
C. The Credit Agreement requires that 50% of the Net Cash Proceeds
received in connection with any Equity Issuance be used to prepay the Loans,
which prepayments are to be applied, (i) first, to the Term Loans, (ii) second,
to the extent of any excess remaining after such application, to reduce the
outstanding principal amount of Revolving Loans (with a corresponding reduction
to the Revolving Credit Commitments), and (iii) third, to the extent of any
excess remaining after such application, to pay any outstanding Reimbursement
Obligations (and thereafter to cash-collaterize any Letter of Credit Exposure)
(collectively, the "Prepayment Application Requirements").
D. The Borrower has requested certain amendments relating to the
financial covenants contained in the Credit Agreement and that certain of the
Prepayment Application Requirements be waived in connection with the 1999
Equity Issuance.
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E. The Lenders, the Administrative Agent, the Documentation Agent
and the Co-Agents are willing to agree to so amend the Credit Agreement and to
grant such waiver 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-Agents hereby agree as follows:
ARTICLE I.
AMENDMENTS TO CREDIT AGREEMENT AND CREDIT DOCUMENTS
1.1 The Credit Agreement is hereby amended as follows:
(a) NEW DEFINED TERMS. The following definitions are hereby added,
in the appropriate alphabetical order, to SECTION 1.1 of the Credit Agreement:
"1999 Special Charges" shall mean the one-time charges to earnings of
the Borrower ($1,600,000 of which may be taken for each of the fourth quarter of
1998 and the first quarter of 1999, and $4,000,000 of which may be taken for the
second quarter of 1999), in an amount not to exceed $7,200,000 in the aggregate,
comprised of: (a) a restructuring charge in respect of the implementation of its
Digital CentralCasting broadcasting system; (b) a charge as the result of a
decrease in the Borrower's NBC/TNT revenue attributable to the 1998-99 National
Basketball Association ("NBA") lockout (the "Lockout"); and (c) a charge as the
result of a decrease in the Borrower's share of NBA licensing fees attributable
to the Lockout.
"First Amendment" shall mean the First Amendment to Credit Agreement,
effective as of June 11, 1999, between the Borrower, the Administrative Agent,
the Documentation Agent, the Co-Agents and the Lenders.
(b) REVISED DEFINITIONS. The following definitions set forth in
SECTION 1.1 to the Credit Agreement are hereby amended as follows:
(i) The definition of "Consolidated EBITDA" shall be
deleted in its entirety and shall be replaced with the following:
"Consolidated EBITDA" shall mean, with respect to the Borrower and for
any period, the sum (without duplication) of (i) Consolidated Net Income
and (ii) the extent Consolidated Net Income has been reduced thereby,
(A) all income taxes of such Person and its Subsidiaries paid or accrued
in accordance with GAAP for such period (other than income taxes
attributable to extraordinary or non-recurring gains or losses), (B)
Consolidated Interest Expense and
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(C) Consolidated Non-Cash Charges, all as determined on a consolidated
basis for such Person and its Subsidiaries in conformity with GAAP.
For purposes of this Agreement, calculations of Consolidated EBITDA for any
period shall (a) exclude net income from Investments in which the Borrower
or a Subsidiary holds a minority interest and (b) be adjusted with respect
to entities or assets that are acquired or disposed of during such period
as permitted under Sections 6.9, 6.10, 8.1 or 8.4 as if such transaction
had occurred as of the first day of such period (based on a certificate in
form and substance reasonably satisfactory to the Administrative Agent and
signed by a Financial Officer of the Borrower setting forth in reasonable
detail the portion of Consolidated EBITDA during such period attributable
to the entity or assets acquired or disposed of and stating that the
assumptions of the Borrower in respect thereof are reasonable).
Notwithstanding the foregoing, the calculation of Consolidated EBITDA shall
exclude (A) the operations and results thereof (whether positive or
negative) of FHS for the period from the Closing Date through the earlier
to occur of the following dates: (a) the end of the fiscal quarter
immediately preceding any fiscal quarter for which FHS EBITDA is greater
than zero; and (b) December 31, 1999 (the earlier of such dates, the "FHS
Covenant Calculation Date"); provided that from and after the FHS Covenant
Calculation Date, FHS EBITDA shall be included in the calculation of
Consolidated EBITDA only as follows: (i) for the fiscal quarter following
the fiscal quarter in which the FHS Covenant Calculation Date occurs,
Consolidated EBITDA shall include FHS EBITDA only for such quarter; (ii)
for the next succeeding fiscal quarter, Consolidated EBIDTA shall include
FHS EBITDA only for that quarter and the preceding fiscal quarter; (iii)
for the next succeeding fiscal quarter, Consolidated EBITDA shall include
FHS EBITDA only for that quarter and the preceding two fiscal quarters; and
(iv) thereafter, FHS EBITDA shall be treated in a manner consistent with
determining Consolidated EBITDA of the Borrower and its other Subsidiaries;
and (B) without duplication, the 1999 Special Charges.
(ii) The definition of "Consolidated Fixed Charges" shall be deleted
in its entirety and shall be replaced with the following:
"Consolidated Fixed Charges" shall mean, for any period, the aggregate
(without duplication) of the following, all determined on a consolidated
basis for the Borrower and its Subsidiaries in accordance with GAAP for
such period: (a) Consolidated Interest Expense for such period, (b)
aggregate cash expense for federal, state, local and other income taxes for
such period, (c) Capital Expenditures for such period, (d) the aggregate
(without duplication) of all scheduled payments of principal on
Consolidated Funded Debt required to have been made by the Borrower and its
Subsidiaries during such period (whether or not such payments are actually
made), including without limitation the aggregate principal amount of the
Term Loans due during
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such period under SECTION 2.6(a) (as such amounts may have been previously
adjusted in accordance with the terms of this Agreement as a result of
prior prepayments on the Term Loans, including adjustments made pursuant
to SECTION 2.6(h) or SECTION 2.7(b)) and (e) the amount of any payments
made under any LMA Agreements attributable to principal being paid by the
other parties to such LMA Agreements pursuant to their respective senior
credit facilities. Notwithstanding the foregoing, Consolidated Fixed
Charges shall not include (i) amounts of any Capital Expenditures in
respect of the Borrowers 1998 acquisition of its Seattle Supersonics
corporate jet or (ii) any amounts attributable to the Borrower's
$12,500,000 payment in connection with the satisfaction in full of its
10.48% Subordinated Notes due 2000.
(iii) The definition of "Credit Documents" is deemed to include the
First Amendment.
(c) SENIOR LEVERAGE RATIO. Section 7.1(b) of the Credit Agreement is
deleted in its entirety and is replaced with the following:
(c) Senior Leverage Ratio. The Borrower will not permit the Senior Leverage
Ratio as of the last day of any fiscal quarter during the periods set forth
below to be greater than the ratio set forth below opposite such period:
Date Maximum Senior Leverage Ratio
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Closing through September 29, 1999 4.50 to 1.00
September 30, 1999 through December 30, 1999 4.25 to 1.00
Thereafter 4.00 : 1.00
1.2. AMENDMENTS TO LOAN DOCUMENTS. As of the date hereof all references
to the Credit Agreement in any of the Credit Documents shall refer to the
Credit Agreement as amended prior to the date hereof and as amended by this
Amendment, and all references to any of the Credit Documents in any of the
other Credit Documents shall refer to such Credit Documents as amended prior to
the date hereof and as amended hereby or in connection herewith.
ARTICLE II.
WAIVER
The Administrative Agent, the Documentation Agent and the Lenders hereby
waive, on a one-time basis only, the Prepayment Application Requirements (as
defined in the Recitals), such that the required prepayment of Loans with 50%
of Net Cash Proceeds of such issuance shall be applied only to the Revolving
Loans (and not to the Term Loans), with no permanent reduction in the Revolving
Credit Commitments; provided, however, that such waiver shall become void and
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of no force or effect as of the close of business on December 31, 1999 if the
1999 Equity Issuance shall not have been consummated as of such time. This
waiver is limited to the express terms hereof and to the 1999 Equity Issuance
and shall not be deemed to apply to any other prepayment of Loans by the
Borrower.
ARTICLE III.
REPRESENTATIONS AND WARRANTIES
The Borrower hereby represents and warrants that:
3.1 COMPLIANCE WITH CREDIT AGREEMENT. After giving effect to this
Amendment, the Borrower is in compliance with all terms and provisions set
forth in the Credit Agreement to be observed or performed by it.
3.2 REPRESENTATIONS IN CREDIT AGREEMENT. The representations and
warranties of the Borrower set forth in the Credit Agreement are true and
correct as of the date hereof, except to the extent such representations and
warranties relate solely to or are specifically expressed as of a particular
date or period.
3.3 NO EVENT OF DEFAULT. After giving effect to this Amendment and the
transactions contemplated hereby, no Event of Default or Default exists under
the Credit Agreement.
3.4 CONTINUING SECURITY INTERESTS. All Loans and advances by the Lenders
to the Borrower under the Credit Agreement, as amended hereby, and the Notes
will continue to be secured by the Administrative Agent's security interest in
all of the Collateral granted under the Credit Agreement or other Credit
Documents, and nothing herein will affect the validity, perfection or
enforceability of such security interests.
3.5 CONSENTS. The execution and delivery of this Amendment and the
Borrower's performance hereunder does not require the consent of approval of
any Person (other than the Lenders pursuant to the Credit Agreement).
ARTICLE IV.
CONDITIONS PRECEDENT
The effectiveness of the foregoing amendments, consents and waivers are
subject to the fulfillment of the following condition precedent:
4.1 AMENDMENT. The Borrower and the Required Lenders shall have executed
and delivered to the Administrative Agent this Amendment (in a sufficient
number of execution originals for each Lender).
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ARTICLE V.
GENERAL
5.1. FULL FORCE AND EFFECT. The Credit Agreement, as expressly amended
hereby, shall continue in full force and effect in accordance with the
provisions thereof on the date hereof. As used in the Credit Agreement,
"hereinafter," "hereto," "hereof," and words of similar import shall, unless
the context otherwise requires, mean the Credit Agreement after amendment by
this Amendment.
5.2. 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.
5.3. 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.
5.4. EXPENSES. 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.
5.5. FURTHER ASSURANCES. Each 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.
5.6. HEADINGS. The headings of this Amendment are for the purposes of
reference only and shall not affect the construction of this Amendment.
(signatures begin on next page)
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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: [Signature illegible]
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Title: Senior Vice President & CIO
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(signatures continued)
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FIRST UNION NATIONAL BANK,
as Administrative Agent and as Lender
By: /s/ [Signature Illegible]
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Title: V.P.
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(signatures continued)
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FLEET BANK, N.A.
By: /s/ XXXXXX XXXXXXXX
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Xxxxxx Xxxxxxxx
Title: Vice President
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(signatures continued)
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XXXX XX XXXXXXXX, XXXXXXX
BRANCH
By: /s/ XXX XXXXXXXXX
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Xxx Xxxxxxxxx
Title: Director
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(signatures continued)
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KEYBANK NATIONAL ASSOCIATION
By: /s/ XXXX X. XXXXX
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Xxxx X. Xxxxx
Title: Assistant Vice President
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(signatures continued)
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XXXXX XXXX XX XXXXXXXXXX, N.A.
By: /s/ XXXXX DONAO
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Xxxxx Donao
Title: Assistant Vice President
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(signatures continued)
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U.S. BANK NATIONAL ASSOCIATION
By: /s/ XXXXXXX X. XXXXXXXX
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Xxxxxxx X. Xxxxxxxx
Title: Vice President
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(signatures continued)
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BANK OF AMERICA, NT & SA
By: /s/ XXXXXX X. XXXXXXX
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Xxxxxx X. Xxxxxxx
Title: Vice President
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(signatures continued)
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XXX XXXX XX XXXX XXXXXX
By: /s/ XXX X. XXXXXXX
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Xxx X. Xxxxxxx
Title: Authorized Signatory
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(signatures continued)
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DRESDNER BANK AG, NEW YORK &
GRAND CAYMAN BRANCHES
By: /s/ XXXX X. XXXXXXX
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Xxxx X. Xxxxxxx
Title: First Vice President
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By: /s/ XXXXXXX X. XXXXXXX
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Xxxxxxx X. Xxxxxxx
Title: Vice President
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(signatures continued)
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THE CIT GROUP/EQUIPMENT
FINANCING, INC.
By: /s/ X.X. XXXXXX
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X.X. Xxxxxx
Title: Assistant Vice President
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(signatures continued)
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BANQUE NATIONALE DE PARIS
By: /s/ XXXXX XXXXXXXXX
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Xxxxx Xxxxxxxxx
Title: Vice President
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By: /s/ XXXXXXXXX XXXXXX
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Xxxxxxxxx Xxxxxx
Title: Vice President
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(signatures continued)
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CITY NATIONAL BANK
By: /s/ XXXXX X. XXXXXX
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Xxxxx X. Xxxxxx
Title: Senior Vice President
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(signatures continued)
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FIRST HAWAIIAN BANK
By: /s/ XXXXXX XXXXXXXX
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Xxxxxx Xxxxxxxx
Title: Corporate Banking Officer
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(signatures continued)
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THE FUJY BANK, LIMITED,
LOS ANGELES AGENCY
By: /s/ XXXXXXXX XXXXXX
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Xxxxxxxx Xxxxxx
Title: Senior Vice President
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(signatures continued)
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XXXXX XXXXXX BANK AND TRUST
COMPANY
By: /s/ XXXXX X. XXXXXX
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Xxxxx X. Xxxxxx
Title: Vice President
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(signatures continued)
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COMPAGNIE FINANCIERE DE CIC ET
DE I'UNION EUROPEENNE
By: /s/ XXXXXX XXXXXX
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Xxxxxx Xxxxxx
Title: Vice President
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By: /s/ XXXXX X'XXXXX
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Xxxxx X'Xxxxx
Title: Vice President
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(signatures continued)
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MICHIGAN NATIONAL BANK
By: /s/ XXXXXXX X. XXXXXX
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Xxxxxxx X. Xxxxxx
Title: Relationship Manager
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(signatures continued)
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WASHINGTON MUTUAL BANK
(dba WESTERN BANK)
By: /s/ [Signature illegible]
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Title: Vice President
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(signatures continued)
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NATEXIS BANQUE
By: /s/ XXXX X. XXXXX
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Xxxx X. Xxxxx
Title: Assistant Vice President
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By: /s/ XXXXXXX X. XXXXX
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Xxxxxxx X. Xxxxx
Title: VP, Group Manager
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(signatures continued)
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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 Union Bank of California, N.A.,
KeyBank National association and Bank of Montreal, Chicago Branch, as co-agents
(the "Credit Agreement"), hereby consents to the foregoing First Amendment to
Credit Agreement, and further waives any defense to its guaranty liability
occasioned by such amendment (including without limitation the extension of the
maturity of the Loans as contemplated thereby). The foregoing consent and
waiver of the undersigned is made as of the date of the First Amendment.
XXXXXXXX AIRPORT ADVERTISING, INC. XXXXXXXX COMMUNICATIONS OF
MASSACHUSETTS, INC.
By: /s/ [Signature Illegible] By: /s/ [Signature Illegible]
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Title: Assistant Secretary Title: Assistant Secretary
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AK MEDIA GROUP, INC. CENTRAL NEW YORK NEWS, INC.
By: /s/ [Signature Illegible] By: /s/ [Signature Illegible]
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Title: Assistant Secretary Title: Assistant Secretary
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KVOS TV, LTD. TC AVIATION, INC.
By: /s/ [Signature Illegible] By: /s/ [Signature Illegible]
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Title: Assistant Secretary Title: Assistant Secretary
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