Exhibit 10.11
FIRST AMENDMENT TO CREDIT AGREEMENT
THIS FIRST AMENDMENT TO CREDIT AGREEMENT ("Amendment") is made this 25th
day of June, 1999, by and among XXXXXX COMPANIES INC. ("Borrower"), and Bank of
America National Trust and Savings Association doing business as SEAFIRST BANK
and U.S. BANK NATIONAL ASSOCIATION (each individually a "Bank" and collectively
the "Banks") and Bank of America National Trust and Savings Association doing
business as SEAFIRST BANK, as agent for Banks ("Agent").
Recitals
A. Borrower, Banks and Agent are parties to that certain Credit Agreement
dated as of May 26, 1998 ("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 which
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. Amendments to Credit Agreement. The Credit Agreement is amended as
follows:
2.1 Amendment to Definitions. In Article 1, amendments are made to
the definitions, as follows:
(a) The definition of "Adjusted Leverage Ratio" is added to read
as follows:
1.33 Adjusted Leverage Ratio shall mean, for any period, the ratio of
(a) Funded Debt of Borrower and its Subsidiaries on a consolidated
basis as of the end of such period to (b) Adjusted Operating Cash Flow
for such period.
(b) The definition of "Adjusted Cash Flow" is added to read as
follows:
1.34 Adjusted Cash Flow shall mean, for any period, Adjusted
Operating Cash Flow for such period minus dividend payments made on
account of any shares of any class of capital stock of Borrower during
such period.
(c) The definition of "Adjusted Operating Cash Flow" is added to
read as follows:
1.35 Adjusted Operating Cash Flow shall mean, for any period,
Operating Cash Flow for such period plus the lesser of (a) gains
resulting from the sale or condemnation of real property and related
improvements owned by Xxxxxx Properties Inc. during such period or (b)
Five Million Dollars ($5,000,000).
(d) The definition of "Capitalization Ratio" is amended and
restated to read as follows:
1.7 Intentionally left blank.
(e) The definition of "EBITDA" is amended and restated to read
as follows:
1.11 EBITDA shall mean, for any period, the net income (or net loss),
plus the sum of (i) interest expense (including capitalized
interest and the interest component of rentals paid or accrued
under capital leases), (ii) income tax expense, (iii)
depreciation expense, (iv) amortization expense (including,
without limitation, film amortization), (v) non-cash
extraordinary, unusual or nonrecurring losses, (vi) losses
resulting from the sale of capital assets and (vii) barter
expenses, minus the sum of (i) non-cash extraordinary, unusual or
nonrecurring gains, (ii) gains resulting from the sale or
condemnation of capital assets and (iii) barter revenues, in each
case determined on a consolidated basis in accordance with GAAP
for such period.
(f) The definition of "Fee Margin" is added to read as follows:
1.36 Fee Margin shall have the meaning given in the table set forth
in the definition of Margin.
(g) The definition of "Leverage Ratio" is added to read as
follows:
1.37 Leverage Ratio shall mean, for any period, the ratio of (a)
Funded Debt of Borrower and its Subsidiaries on a consolidated
basis as of the end of such period to (b) Operating Cash Flow for
such period.
(h) The definition of "Leverage Rating" is added to read as
follows:
1.38 Leverage Rating means a rating determined in accordance with the
following table:
Leverage Ratio Leverage Rating
-------------- ---------------
equal to or less than 3.5 to 1.0 Level 1
greater than 3.5 to 1.0, but equal Level 2
to or less than 4.0 to 1.0
greater than 4.0 to 1.0, but equal Level 3
to or less than 4.5 to 1.0
greater than 4.5 to 1.0, but equal Level 4
to or less than 5.0 to 1.0
greater than 5.0 to 1.0, but equal Level 5
to or less than 5.5 to 1.0
greater than 5.5 to 1.0 Xxxxx 0
-0-
Xxx Xxxxxxxx Rating shall be determined in accordance with the following
procedures on the basis of the Leverage Ratio as of the end of Borrower's most
recently completed fiscal quarter (the "Prior Quarter"), and shall be effective
as of the first day of the month following Agent's receipt of the financial
reports in respect of each such Prior Quarter pursuant to Section 7.4. All
resulting adjustments in the Margins shall be effective as of the first day of
the month following Agent's receipt of such financial reports. If Borrower shall
fail to provide the financial reports due in respect of the Prior Quarter for a
period of five (5) days after the date required pursuant to Section 7.4, from
and after the date on which such financial statements are due and until the
first day of the month following Agent's receipt of such financial statements,
any payments of fees or interest due hereunder shall be calculated and paid as
if the Leverage Rating was one level higher than the Leverage Rating applicable
as of the date such financial statements were due pursuant to Section 7.4.
Notwithstanding the foregoing to the contrary, the Leverage Rating shall not be
less than "Level 5" for the period commencing on the date that the Retlaw
Transaction is consummated and ending on the first day of the month following
Agent's receipt of the financial reports in respect of the first fiscal quarter
of Borrower that ends on a date following the date the Retlaw Transaction is
consummated.
(i) The definition of "Margin" is amended and restated to read
as follows:
1.24 Margin shall mean on any date, a per annum interest rate
determined in accordance with the following table:
Borrower's Margin For
Leverage Rating Libor Rate Loans Fee Margin
--------------- ---------------- ----------
Xxxxx 0 1.00% .250%
Xxxxx 0 1.25% .375%
Xxxxx 0 1.50% .375%
Xxxxx 0 1.75% .375%
Xxxxx 0 2.00% .500%
Xxxxx 0 2.25% .500%
(j) The definition of "Operating Cash Flow" is added to read as
follows:
1.39 Operating Cash Flow shall mean, for any period, the EBITDA of
Borrower and its Subsidiaries for such period minus payments made
to obtain broadcasting programming made by Borrower or any of its
Subsidiaries during such period. For purposes of this definition,
EBITDA and payments made to obtain broadcasting programming shall
for any period of four consecutive fiscal quarters ending
September 30, 1999, December 31, 1999 and March 31, 2000, mean
and include for that portion of such period that precedes July 1,
1999, the EBITDA derived from and the payments made to obtain
broadcasting programming made by Retlaw Enterprises, Inc. and its
Subsidiaries during such period in connection with the operation
of the assets acquired by Borrower as part of the Retlaw
Transaction.
(k) The definition of "Retlaw Transaction" is added to read as
follows:
-3-
1.40 Retlaw Transaction shall mean the acquisition by Borrower of
eleven (11) television stations from Retlaw Enterprises, Inc., a
California corporation, and its Subsidiaries.
2.3 Amendments to Article 7. Sections 7.2 and 7.3 are hereby deleted
and the following substituted in their stead:
7.2 Financial Covenants.
(a) Adjusted Leverage Ratio. Borrower shall maintain on a
consolidated basis for each period of four consecutive fiscal quarters
ending during the periods set forth below an Adjusted Leverage Ratio
of not more than the amount set forth below opposite such period:
Period Ratio
------ -----
From July 1, 1999 through and including the 5.75 to 1
four consecutive fiscal quarters ending
June 30, 2000
From September 30, 2000 through and 5.50 to 1
including the four consecutive fiscal
quarters ending December 31, 2000
For the four consecutive fiscal quarters 5.25 to 1
ending March 31, 2001
From June 30, 2001 through and including 5.00 to 1
the four consecutive fiscal quarters
ending September 30, 2001
From December 31, 2001 through and 4.50 to 1
including the four consecutive fiscal
quarters ending September 30, 2002
From December 31, 2002 through and 4.00 to 1
including the four consecutive fiscal
quarters ending September 30, 2003
For the four consecutive fiscal quarters 3.50 to 1
ending December 31, 2003 and thereafter
(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 2.25 to 1. 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
-4-
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.
(c) Fixed Charge Coverage Ratio. Borrower shall maintain on a
consolidated basis for each period of four consecutive fiscal
quarters, a Fixed Charge Coverage Ratio of not less than 1.20 to 1.
As used herein, "Fixed Charge Coverage Ratio" means, for any period,
the ratio of (a) Adjusted Cash Flow of Borrower and its Subsidiaries
for such period minus expenditures made by Borrower or any Subsidiary
during such period to repair, renew or replace its property where the
failure to do so could reasonably be expected to have a material
adverse effect on Borrower, Xxxxxx Broadcasting Inc., Xxxxxx
Properties Inc., Xxxxxx Xxxxx Inc. or Borrower and its Subsidiaries
considered as a whole to (b) cash interest expense (including the
interest component of rentals paid under capital leases) of Borrower
and its Subsidiaries for such period plus all scheduled payments of
principal in respect of Debt for borrowed money (other than the
Revolving Loans and unsecured revolving demand loans payable by
Borrower from time to time to its officers and shareholders) required
to be made by Borrower and its Subsidiaries during such period. For
purposes of this subsection, "expenditures made by Borrower or any
Subsidiary during such period to repair, renew or replace its
property" shall for any period of four consecutive fiscal quarters
ending September 30, 1999, December 31, 1999 or March 31, 2000, mean
and include for that portion of such four quarter period that precedes
July 1, 1999, all such expenditures made by Retlaw Enterprises, Inc.
and its Subsidiaries in respect of the assets acquired by Borrower as
part of the Retlaw Transaction.
7.3 Intentionally left blank.
3. Amendments to other Loan Documents. Each other Loan Document which
makes reference to the Credit Agreement is hereby amended to clarify that such
reference is to the Credit Agreement as the same is amended by this Amendment
and as the same may be amended from time to time hereafter.
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;
-5-
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 Retlaw Transaction. Evidence satisfactory to Agent and Banks
that Borrower has consummated the Retlaw Transaction; and
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.
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.
-6-
EXECUTED AND DELIVERED by the duly authorized officers of the parties as of
the date first above written.
Borrower: Agent:
XXXXXX COMPANIES INC. SEAFIRST BANK
By _________________________________ By __________________________________
Title ______________________________ Title _______________________________
Banks:
SEAFIRST BANK U.S. BANK NATIONAL ASSOCIATION
By _________________________________ By __________________________________
Title ______________________________ Title _______________________________
-7-
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 First 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 ______________________________
-8-
