Exhibit 10.44
EXECUTION
GRANITE BROADCASTING CORPORATION
THIRD AMENDMENT TO FOURTH AMENDED
AND RESTATED CREDIT AGREEMENT
This THIRD AMENDMENT TO FOURTH AMENDED AND RESTATED CREDIT
AGREEMENT (this "AMENDMENT") is dated as of March __, 2000 and entered into by
and among GRANITE BROADCASTING CORPORATION, a Delaware corporation ("COMPANY"),
the financial institutions listed on the signature pages hereof ("LENDERS") and
BANKERS TRUST COMPANY ("BANKERS"), as administrative agent for Lenders
("ADMINISTRATIVE AGENT"), and, for purposes of Section 3 hereof, the Credit
Support Parties (as defined in Section 3 hereof) listed on the signature pages
hereof, and is made with reference to that certain Fourth Amended and Restated
Credit Agreement dated as of June 10, 1998 by and among Company, Lenders,
Administrative Agent, The Bank of New York as Documentation Agent, and Xxxxxxx
Xxxxx Credit Partners L.P., Union Bank of California, N.A. and ABN-Amro Bank
N.V., as Co-Agents, as amended by that certain First Amendment dated as of March
23, 1999, and that certain Second Amendment dated as of February 16, 2000 (as so
amended, the "CREDIT AGREEMENT"). Capitalized terms used herein without
definition shall have the same meanings herein as set forth in the Credit
Agreement.
RECITALS
WHEREAS, Company has requested that Requisite Lenders (i)
amend the leverage ratio contained in Section 7.6A of the Credit Agreement for
each of the fiscal quarters in the fiscal year ending December 31, 2000 and (ii)
make certain other amendments as set forth herein; and
WHEREAS, Agent and Requisite Lenders are willing to make such
amendments, but only on the terms and conditions set forth herein:
NOW, THEREFORE, in consideration of the premises and the
agreements, provisions and covenants herein contained, and in reliance on the
representations and warranties of Company and the Credit Support Parties herein
contained, the parties hereto agree as follows:
SECTION 1. AMENDMENTS TO THE CREDIT AGREEMENT
1.1 AMENDMENTS TO SECTION 1.1: CERTAIN DEFINED TERMS.
(a) The definition of "Applicable Margin" contained in Section 1.1 of
the Credit Agreement is hereby amended and restated in its entirety as follows:
`"APPLICABLE MARGIN" means, for each Loan, a percentage per
annum determined by reference to the Leverage Ratio as set forth below:
----------------------------------------- --------------------------- --------------------------------
PRICE LEVERAGE RATIO BASE RATE LOANS EURODOLLAR RATE LOANS
----------------------------------------- --------------------------- --------------------------------
=> 7.0 to 1 1.50% 2.75%
----------------------------------------- --------------------------- --------------------------------
=> 6.5 to 1 and < 7.0 to 1 1.25% 2.50%
----------------------------------------- --------------------------- --------------------------------
=> 6.0 to 1 and < 6.5 to 1 1.00% 2.25%
----------------------------------------- --------------------------- --------------------------------
=> 5.5 to 1 and < 6.0 to 1 0.75% 2.00%
----------------------------------------- --------------------------- --------------------------------
=> 5.0 to 1 and < 5.5 to 1 0.50% 1.75%
----------------------------------------- --------------------------- --------------------------------
< 5.0 to 1 0.25% 1.50%"
----------------------------------------- --------------------------- --------------------------------
(b) Notwithstanding anything in Section 2.2A of the Credit Agreement to
the contrary, from and after the Third Amendment Effective Date (as defined
below) until the first day following delivery to Administrative Agent of the
first Compliance Certificate delivered to Administrative Agent after the Third
Amendment Effective Date pursuant to Section 6.1 of the Credit Agreement, the
Applicable Margin shall be that determined with reference to the most recent
Compliance Certificate delivered to Administrative Agent by Company on or before
the Third Amendment Effective Date (as defined below) pursuant to Section 6.1 of
the Credit Agreement.
(c) Section 1.1 of the Credit Agreement is hereby further amended by
adding the following definition of "Third Amendment Effective Date" thereto in
alphabetical order:
`"THIRD AMENDMENT EFFECTIVE DATE" has the meaning assigned to
that term in the Third Amendment to Fourth Amended and Restated Credit
Agreement dated as of March __, 2000 by and among Company, Lenders and
Administrative Agent."
1.2 AMENDMENTS TO SECTION 2.3A: COMMITMENT FEES.
Section 2.3A of the Credit Agreement is hereby amended and
restated in its entirety as follows:
"A. COMMITMENT FEES.
(i) Company agrees to pay to Administrative Agent,
for distribution to each Lender in proportion to that Lender's
Pro Rata Share, commitment fees for the period from and
including the Closing Date to and excluding the Revolving Loan
Commitment Termination Date equal to (a) the average of the
daily excess of the Revolving Loan Commitments over the sum of
(x) the aggregate principal amount of Revolving Loans
outstanding PLUS (y) the Letter of Credit Usage, MULTIPLIED BY
(b) 1/4 of 1% per annum, such commitment fees to be calculated
on the basis of a 360-day year and the actual number of days
elapsed and to be payable quarterly in arrears on January 31,
April 30, July 31 and October 31 of each year, commencing on
the first such date to occur after the Closing Date, and on
the Revolving Loan Commitment Termination Date; PROVIDED
HOWEVER that from and after the Third Amendment Effective
Date, such per annum percentage shall be 1/2 of 1% per annum
(PROVIDED FURTHER HOWEVER that such per annum percentage shall
be
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decreased to 3/8 of 1% per annum during any period in which
the Pricing Leverage Ratio is less than 5.00:1.00); and
(ii) Company agrees to pay to Administrative Agent,
with respect to the Additional Credit Commitments made under
each Additional Credit Facility Supplement, for distribution
to each Additional Credit Lender in proportion to that
Additional Credit Lender's Pro Rata Share, commitment fees for
the period from and including the applicable Additional Credit
Closing Date to and excluding the Revolving Loan Commitment
Termination Date (a) the average of the daily excess of the
applicable Additional Credit Commitments over the aggregate
principal amount of Additional Credit Loans outstanding
thereunder, MULTIPLIED BY (b) 1/2 of 1% per annum, such
commitment fees to be calculated on the basis of a 360-day
year and the actual number of days elapsed and to be payable
quarterly in arrears on January 31, April 30, July 31 and
October 31 of each year, commencing on the first such date to
occur after the applicable Additional Credit Facility Closing
Date, and on the Revolving Loan Commitment Termination Date
(PROVIDED HOWEVER that such per annum percentage shall be
decreased to 3/8 of 1% per annum during any period in which
the Pricing Leverage Ratio is less than 5.00:1.00)."
1.3 AMENDMENTS TO SECTION 7.6A: MAXIMUM TOTAL DEBT RATIO.
Section 7.6A of the Credit Agreement is hereby amended by
inserting the following proviso at the end thereof:
"; PROVIDED STILL FURTHER, HOWEVER, that notwithstanding
anything in the foregoing to the contrary, for any fiscal
quarter ending during any period set forth below, the
following ratios shall apply:
------------------------------------------------ -----------------------------------------------
PERIOD MAXIMUM TOTAL DEBT RATIO
------------------------------------------------ -----------------------------------------------
1/01/2000-3/31/2000 7.25 to 1
------------------------------------------------ -----------------------------------------------
4/01/2000-6/30/2000 7.25 to 1
------------------------------------------------ -----------------------------------------------
7/01/2000-9/30/2000 6.75 to 1
------------------------------------------------ -----------------------------------------------
10/01/2000-12/31/2000 6.50 to 1"
------------------------------------------------ -----------------------------------------------
1.4 AMENDMENTS TO SECTION 7.8: RESTRICTION ON LEASES.
Section 7.8 of the Credit Agreement is hereby amended and
restated in its entirety as follows:
"7.8 RESTRICTION ON LEASES.
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Company shall not, and shall not permit any of its
Subsidiaries to, become or remain liable in any way, whether
directly or by assignment or as a guarantor or other surety,
for the obligations of the lessee under any Capital Lease
(other than intercompany leases between Company and its
wholly-owned Subsidiaries), unless the aggregate portion of
the obligations with respect to all Capital Leases of Company
and its Subsidiaries at any time in effect that is properly
classified as a liability on a balance sheet in conformity
with GAAP does not exceed $20,000,000."
1.5 AMENDMENTS TO SCHEDULE 5.1: SUBSIDIARIES OF COMPANY.
Schedule 5.1 of the Credit Agreement is hereby amended and
restated in its entirety as set forth on Exhibit A hereto.
SECTION 2. COMPANY'S REPRESENTATIONS AND WARRANTIES
In order to induce Lenders to enter into this Amendment and to
amend the Credit Agreement in the manner provided herein, Company represents and
warrants to each Lender that the following statements are true, correct and
complete:
A. CORPORATE POWER AND AUTHORITY. Company has all requisite
corporate power and authority to enter into this Amendment and to carry out the
transactions contemplated by, and perform its obligations under, the Credit
Agreement as amended by this Amendment (the "AMENDED AGREEMENT").
B. AUTHORIZATION OF AGREEMENTS. The execution and delivery of
this Amendment and the performance of the Amended Agreement have been duly
authorized by all necessary corporate action on the part of Company.
C. NO CONFLICT. The execution and delivery by Company of this
Amendment and the performance by Company of the Amended Agreement do not and
will not (i) violate any provision of any law or any governmental rule or
regulation applicable to Company or any of its Subsidiaries, the Certificate of
Incorporation or Bylaws of Company or any of its Subsidiaries or any order,
judgment or decree of any court or other agency of government binding on Company
or any of its Subsidiaries, (ii) conflict with, result in a breach of or
constitute (with due notice or lapse of time or both) a default under any
Contractual Obligation of Company or any of its Subsidiaries, (iii) result in or
require the creation or imposition of any Lien upon any of the properties or
assets of Company or any of its Subsidiaries (other than Liens created under any
of the Loan Documents in favor of Administrative Agent on behalf of Lenders), or
(iv) require any approval of stockholders or any approval or consent of any
Person under any Contractual Obligation of Company or any of its Subsidiaries.
D. GOVERNMENTAL CONSENTS. The execution and delivery by
Company of this Amendment and the performance by Company of the Amended
Agreement do not and will not require any registration with, consent or approval
of, or notice to, or other action to, with or by, any federal, state or other
governmental authority or regulatory body.
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E. BINDING OBLIGATION. This Amendment and the Amended
Agreement have been duly executed and delivered by Company and are the legally
valid and binding obligations of Company, enforceable against Company in
accordance with their respective terms, except as may be limited by bankruptcy,
insolvency, reorganization, moratorium or similar laws relating to or limiting
creditors' rights generally or by equitable principles relating to
enforceability.
F. INCORPORATION OF REPRESENTATIONS AND WARRANTIES FROM CREDIT
AGREEMENT. The representations and warranties contained in Section 5 of the
Credit Agreement are and will be true, correct and complete in all material
respects on and as of the date hereof to the same extent as though made on and
as of that date, except to the extent such representations and warranties
specifically relate to an earlier date, in which case they were true, correct
and complete in all material respects on and as of such earlier date.
G. ABSENCE OF DEFAULT. After giving effect to the amendment
set forth herein, no event has occurred and is continuing or will result from
the consummation of the transactions contemplated by this Amendment that would
constitute an Event of Default or a Potential Event of Default.
SECTION 3. ACKNOWLEDGEMENT AND CONSENT
Company is a party to the Borrower Pledge and Security
Agreement and the Borrower Mortgage, in each case as amended through the date
hereof, pursuant to which Company has created Liens in favor of Agent on certain
Collateral to secure the Obligations. Each of Company's Subsidiaries is a party
to the Subsidiary Guaranty and the Subsidiary Pledge Agreement and each of
Company's Subsidiaries (other than the License Cos. and Granite Response
Television Inc.) is a party to one or more Subsidiary Mortgages, in each case as
amended through the date hereof, pursuant to which such Subsidiary has (i)
guarantied the Obligations and (ii) created Liens (subject to Liens permitted by
the Credit Agreement) in favor of Administrative Agent on certain Collateral
(except to the extent prohibited by the FCC or the Communications Act) to secure
the obligations of such Subsidiary under the Subsidiary Guaranty. Company, and
each Subsidiary Guaranty are collectively referred to herein as the "CREDIT
SUPPORT PARTIES", and the Borrower Pledge and Security Agreement, the Borrower
Mortgage, the Subsidiary Guaranty, the Subsidiary Pledge Agreement and the
Subsidiary Mortgages are collectively referred to herein as the "CREDIT SUPPORT
DOCUMENTS".
Each Credit Support Party hereby acknowledges that it has
reviewed the terms and provisions of the Credit Agreement and this Amendment and
consents to the amendment of the Credit Agreement effected pursuant to this
Amendment. Each Credit Support Party hereby confirms that each Credit Support
Document to which it is a party or otherwise bound and all Collateral encumbered
thereby will continue to guaranty or secure, as the case may be, to the fullest
extent possible the payment and performance of all "Guarantied Obligations" and
"Secured Obligations," as the case may be (in each case as such terms are
defined in the applicable Credit Support Document), including without limitation
the payment and performance of all such "Guarantied Obligations" or "Secured
Obligations," as the case may
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be, in respect of the Obligations of Company now or hereafter existing under or
in respect of the Amended Agreement and the Notes defined therein.
Each Credit Support Party acknowledges and agrees that any of
the Credit Support Documents to which it is a party or otherwise bound shall
continue in full force and effect and that all of its obligations thereunder
shall be valid and enforceable and shall not be impaired or limited by the
execution or effectiveness of this Amendment. Each Credit Support Party
represents and warrants that all representations and warranties contained in the
Amended Agreement and the Credit Support Documents to which it is a party or
otherwise bound are true, correct and complete in all material respects on and
as of the date hereof to the same extent as though made on and as of that date,
except to the extent such representations and warranties specifically relate to
an earlier date, in which case they were true, correct and complete in all
material respects on and as of such earlier date.
Each Credit Support Party (other than Company) acknowledges
and agrees that (i) notwithstanding the conditions to effectiveness set forth in
this Amendment, such Credit Support Party is not required by the terms of the
Credit Agreement or any other Loan Document to consent to the amendments to the
Credit Agreement effected pursuant to this Amendment and (ii) nothing in the
Credit Agreement, this Amendment or any other Loan Document shall be deemed to
require the consent of such Credit Support Party to any future amendments to the
Credit Agreement.
SECTION 4. MISCELLANEOUS
A. REFERENCE TO AND EFFECT ON THE CREDIT AGREEMENT AND THE
OTHER LOAN DOCUMENTS.
(i) On and after the date hereof, each reference in the Credit
Agreement to "this Agreement", "hereunder", "hereof", "herein" or
words of like import referring to the Credit Agreement, and each
reference in the other Loan Documents to the "Credit Agreement",
"thereunder", "thereof" or words of like import referring to the
Credit Agreement shall mean and be a reference to the Amended
Agreement.
(ii) Except as specifically amended by this Amendment, the Credit
Agreement and the other Loan Documents shall remain in full force
and effect and are hereby ratified and confirmed.
(iii) The execution, delivery and performance of this Amendment
shall not, except as expressly provided herein, constitute a
waiver of any provision of, or operate as a waiver of any right,
power or remedy of Administrative Agent or any Lender under, the
Credit Agreement or any of the other Loan Documents.
B. FEES AND EXPENSES. Company acknowledges that all costs,
fees and expenses as described in Section 10.2 of the Credit Agreement incurred
by Administrative Agent and its counsel with respect to this Amendment and the
documents and transactions contemplated hereby shall be for the account of
Company.
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C. HEADINGS. Section and subsection headings in this Amendment
are included herein for convenience of reference only and shall not constitute a
part of this Amendment for any other purpose or be given any substantive effect.
D. APPLICABLE LAW. THIS AMENDMENT AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE GOVERNED BY, AND SHALL BE
CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW
YORK (INCLUDING WITHOUT LIMITATION SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW
OF THE STATE OF NEW YORK), WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES.
E. COUNTERPARTS; EFFECTIVENESS; AMENDMENT FEE. 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 an original, but all such counterparts together shall constitute but one
and the same instrument; signature pages may be detached from multiple separate
counterparts and attached to a single counterpart so that all signature pages
are physically attached to the same document. This Amendment shall become
effective (the "THIRD AMENDMENT EFFECTIVE DATE") upon (i) the execution of a
counterpart hereof by Company, Requisite Lenders and each of the Credit Support
Parties and receipt by Company and Administrative Agent of written or telephonic
notification of such execution and authorization of delivery thereof and (ii)
the payment by Company to Administrative Agent, for distribution to the Lenders
that have executed this Amendment, of a non-refundable amendment fee in
immediately available funds in an amount equal to 0.125% of each such Lender's
Commitment.
[Remainder of page intentionally left blank]
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IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be duly executed and delivered by their respective officers
thereunto duly authorized as of the date first written above.
ADMINISTRATIVE AGENT:
BANKERS TRUST COMPANY, individually
and as Administrative Agent and
Collateral Agent
By:
----------------------------------
Name:
Title:
LENDERS:
THE BANK OF NEW YORK,
as Documentation Agent and a Lender
By:
-------------------------------------
Name:
--------------------------------
Title:
-------------------------------
XXXXXXX SACHS CREDIT PARTNERS L.P.,
as a Co-Agent and a Lender
By:
-------------------------------------
Name:
--------------------------------
Title:
-------------------------------
UNION BANK OF CALIFORNIA, N.A.,
as a Co-Agent and a Lender
By:
-------------------------------------
Name:
--------------------------------
Title:
-------------------------------
S-1
ABN AMRO BANK N.V., NEW YORK BRANCH,
as a Co-Agent and a Lender
By:
-------------------------------------
Name:
--------------------------------
Title:
-------------------------------
NATEXIS BANQUE BFCE,
as a Lender
By:
--------------------------------------
Name:
--------------------------------
Title:
-------------------------------
CREDIT INDUSTRIEL ET COMMERCIAL
as a Lender
By:
-------------------------------------
Name:
--------------------------------
Title:
-------------------------------
By:
------------------------------------
Name:
--------------------------------
Title:
------------------------------
XXXXXX FINANCIAL, INC.,
as a Lender
By:
-------------------------------------
Name:
--------------------------------
Title:
-------------------------------
S-2
PARIBAS,
as a Lender
By:
-------------------------------------
Name:
-------------------------------
Title:
------------------------------
By:
------------------------------------
Name:
-------------------------------
Title:
------------------------------
THE BANK OF NOVA SCOTIA,
as a Lender
By:
-----------------------------------
Name:
------------------------------
Title:
-----------------------------
BANQUE NATIONALE DE PARIS,
as a Lender
By:
-----------------------------------
Name:
------------------------------
Title:
-----------------------------
By:
-----------------------------------
Name:
------------------------------
Title:
-----------------------------
S-3
MELLON BANK, N.A.,
as a Lender
By:
------------------------------------
Name:
-------------------------------
Title:
------------------------------
BANK OF TOKYO-MITSUBISHI TRUST,
as a Lender
By:
------------------------------------
Name:
-------------------------------
Title:
------------------------------
FINOVA CAPITAL CORPORATION,
as a Lender
By:
------------------------------------
Name:
-------------------------------
Title:
------------------------------
SOUTHERN PACIFIC BANK,
as a Lender
By:
------------------------------------
Name:
-------------------------------
Title:
-------------------------------
S-4
COMPANY:
GRANITE BROADCASTING CORPORATION
By:
------------------------------------
Xxxxxxxx X. Xxxxx
Vice President
SUBSIDIARIES:
GRANITE RESPONSE TELEVISION, INC.
KBVO, INC.
KBVO LICENSE, INC.
KNTV, INC.
KNTV LICENSE, INC.
RJR COMMUNICATIONS, INC.
KBJR LICENSE, INC.
SAN XXXXXXX COMMUNICATIONS CORPORATION
KSEE LICENSE, INC.,
WPTA-TV, INC.
WPTA-TV LICENSE, INC.
WTVH L.L.C.
WTVH LICENSE, INC.
WWMT-TV, INC.
WWMT-TV LICENSE, INC.
WKBW-TV LICENSE, INC.
QUEEN CITY BROADCASTING OF NEW YORK, INC.
WEEK, INC.
WEEK LICENSE, INC.
WXON, INC.
WXON LICENSE, INC.
WLAJ, INC.
WLAJ LICENSE, INC.
WEEK-TV LICENSE, INC.
PACIFIC FM INCORPORATED
KOFY-TV LICENSE, INC.
By:
-------------------------------------
Xxxxxxxx X. Xxxxx
Vice President
S-5
EXHIBIT A
TO THIRD AMENDMENT
SCHEDULE 5.1
SUBSIDIARIES OF COMPANY
