Exhibit 10.12
SECOND AMENDMENT TO CREDIT AGREEMENT
THIS SECOND AMENDMENT TO CREDIT AGREEMENT ("Amendment") is made effective
as of September 30, 1999, by and among XXXXXX COMPANIES INC. ("Borrower"), and
BANK OF AMERICA, N. A. and U.S. BANK NATIONAL ASSOCIATION (each individually a
"Bank" and collectively the "Banks") and BANK OF AMERICA, N. A., as agent for
Banks ("Agent").
Recitals
A. Borrower, Banks and Agent are parties to that certain Credit Agreement
dated as of May 26, 1998 as the same was amended pursuant to that certain First
Amendment to Credit Agreement by and among the parties hereto as of June 25,
1999 ("Credit Agreement") and the related Loan Documents described therein.
B. The parties hereto now desire to make certain changes to the Credit
Agreement and the other Loan Documents all on the terms and conditions that
follow.
NOW, THEREFORE, the parties agree as follows:
Agreement
1. Definitions. Capitalized terms used herein and not otherwise defined
shall have the meanings given in the Credit Agreement.
2. Amendment to Section 7.2 of the Credit Agreement. Section 7.2(b) of
the Credit Agreement is hereby deleted and the following substituted in its
stead:
(b) Interest Coverage Ratio. Borrower shall maintain on a
consolidated basis for each period of four consecutive fiscal
quarters, an Interest Coverage Ratio of not less than the
applicable minimum ratio set forth below:
Period Minimum Ratio
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For the periods of four consecutive fiscal 1.80 to 1
quarters ending on or before December 31,
2000
For the periods of four consecutive fiscal 1.90 to 1
quarters ending after December 31, 2000
and on or before December 31, 2001
For the periods of four consecutive fiscal 2.00 to 1
quarters ending after December 31, 2001
and on or before December 31, 2002
For the periods of four consecutive fiscal 2.25 to 1
quarters ending after December 31, 2002
As used herein, "Interest Coverage Ratio" means, for any period, the
ratio of (a) Adjusted Cash Flow of Borrower and its Subsidiaries for
such period to (b) interest expense (including capitalized interest
and the interest component of rentals paid or accrued under capital
leases) of Borrower and its Subsidiaries for such period, provided,
however, that for purposes of this subsection and subsection 6.15(c),
"interest expense" for the four consecutive fiscal quarters ending on
September 30, 1999, December 31, 1999 and March 31, 2000 shall be
calculated in accordance with the following formula: (i) interest
expense for the four quarter period ending on September 30, 1999,
shall be four times Borrower's consolidated interest expense for the
quarter ending on September 30, 1999; (ii) interest expense for the
four quarter period ending on December 31, 1999, shall be two times
Borrower's consolidated interest expense for the two quarter period
ending on December 31, 1999; and (iii) interest expense for the four
quarter period ending on March 31, 2000, shall be four-thirds (4/3) of
Borrower's consolidated interest expense for the three quarter period
ending on March 31, 2000.
4. Conditions to Effectiveness. Notwithstanding anything contained
herein to the contrary, this Amendment shall not become effective until each of
the following conditions is fully and simultaneously satisfied:
4.1 Delivery of Amendment. Borrower, Agent and each Bank shall have
executed and delivered counterparts of this Amendment to Agent;
4.2 Corporate Authority. Agent shall have received in form and
substance reasonably satisfactory to it such evidence of corporate authority and
action as Agent or any Bank shall request demonstrating that the execution,
delivery and performance of this Amendment has been duly authorized by Borrower;
4.3 Consent of Guarantors. Xxxxxx Broadcasting Inc., Xxxxxx Xxxxx
Inc. and Xxxxxx Properties Inc. shall each have executed the subjoined
Guarantors' Consent;
4.4 Representations True; No Default. The representations of
Borrower as set forth in Article 6 of the Credit Agreement shall be true on and
as of the date of this Amendment with the same force and effect as if made on
and as of this date. No Event of Default and no event which, with notice or
lapse of time or both, would constitute an Event of Default, shall have occurred
and be continuing or will occur as a result of the execution of this Amendment;
4.5 Other Documents. Agent and Banks shall have received such other
documents, instruments, and undertakings as Agent and such Bank may reasonably
request.
5. No Further Amendment. Except as expressly modified by this Amendment,
the Credit Agreement and the other Loan Documents shall remain unmodified and in
full force and effect and the parties hereby ratify their respective obligations
thereunder. Without limiting the foregoing, Borrower expressly reaffirms and
ratifies its obligation to pay or reimburse Agent and Banks on request for all
reasonable expenses, including legal fees, actually incurred by Agent or such
Bank in connection with the preparation of this Amendment and the closing of the
transactions contemplated hereby and thereby.
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6. Miscellaneous.
6.1 Entire Agreement. This Amendment comprises the entire agreement
of the parties with respect to the subject matter hereof and supersedes all
prior oral or written agreements, representations or commitments.
6.2 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 shall be deemed to be an original, and all of which taken
together shall constitute one and the same Amendment.
6.3 Governing Law. This Amendment and the rights and obligations of
the parties hereto shall be construed and interpreted in accordance with the
internal laws of the State of Washington.
6.4 Oral Agreements Not Enforceable.
ORAL AGREEMENTS OR ORAL COMMITMENTS TO LOAN MONEY, EXTEND CREDIT, OR
TO FOREBEAR FROM ENFORCING REPAYMENT OF A DEBT ARE NOT ENFORCEABLE
UNDER WASHINGTON LAW.
EXECUTED AND DELIVERED by the duly authorized officers of the parties as of
the date first above written.
Guarantors:
XXXXXX COMPANIES INC. BANK OF AMERICA, N. A.
By_________________________________ By__________________________________
Title______________________________ Title_______________________________
Banks:
BANK OF AMERICA, X.X. X.X. BANK NATIONAL ASSOCIATION
By_________________________________ By__________________________________
Title______________________________ Title_______________________________
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GUARANTORS' CONSENT
Xxxxxx Broadcasting Inc., Xxxxxx Xxxxx Inc. and Xxxxxx Properties Inc.
("Guarantors") are guarantors of the indebtedness, liabilities and obligations
of Xxxxxx Companies Inc. ("Borrower") under the Credit Agreement and the other
Loan Documents referred to in the within and foregoing Second Amendment to
Credit Agreement ("Amendment"). The Guarantors hereby acknowledge that they have
received a copy of the Amendment and hereby consent to its contents
(notwithstanding that such consent is not required). Each Guarantor hereby
confirms that its guarantee of the obligations of Borrower remains in full force
and effect, and that the obligations of Borrower under the Loan Documents shall
include the obligations of Borrower under the Loan Documents as amended by the
Amendment.
Guarantors:
XXXXXX BROADCASTING INC. XXXXXX XXXXX INC.
By_________________________________ By__________________________________
Title______________________________ Title_______________________________
XXXXXX PROPERTIES INC.
By_________________________________
Title______________________________
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