Execution Copy
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THIRD AMENDMENT AND CONSENT
Dated as of December 6, 2002
TO
THE AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT
Dated as of March 27, 2001
Among
XXXXXXXXXX COMMUNICATIONS COMPANY,
as the Borrower,
THE PLEDGORS AND GUARANTORS NAMED HEREIN,
THE FINANCIAL INSTITUTIONS PARTY HERETO,
as the Banks,
FLEET NATIONAL BANK,
as the Agent, and
DEUTSCHE BANK SECURITIES INC.,
as the Documentation Agent
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THIRD AMENDMENT AND CONSENT
This THIRD AMENDMENT AND CONSENT is entered into as of December 6, 2002
(this "Amendment and Consent") by and among XXXXXXXXXX COMMUNICATIONS COMPANY, a
Delaware corporation (the "Borrower"), the Banks parties hereto (the "Banks"),
FLEET NATIONAL BANK, as Agent (the "Agent"), XXXXXXXXXX GROUP, INC. ("Xxxxxxxxxx
Group"), ALLFINCO, INC. ("Allfinco"), KATV, LLC ("KATV"), KTUL, LLC ("KTUL"),
WSET, INCORPORATED ("WSET"), XXXXXXXXXX TELEVISION PRODUCTIONS, INC. ("ATP"), TV
ALABAMA, INC. ("TV AL"), HARRISBURG TELEVISION, INC. ("HTI"), ACC LICENSEE, INC.
("ACCLI") and WCIV, LLC. ("WCIV"; and, together with Allfinco, KATV, KTUL, WSET,
ATP, TV AL, ACCLI and HTI, the "Subsidiary Guarantors"; the Borrower, Xxxxxxxxxx
Group and the Subsidiary Guarantors are referred to herein collectively as the
"Loan Parties") in order to amend as set forth herein the Amended and Restated
Revolving Credit Agreement dated as of March 27, 2001 (as amended and otherwise
modified by the First Amendment, dated as of December 19, 2001, the Letter
Waiver, dated as of March 4, 2002, and the Second Amendment dated as of May 15,
2002, the "Credit Agreement"), among the Borrower, the Banks, the Agent and the
Documentation Agent.
Recitals
WHEREAS, the Borrower has requested that the Credit Agreement be
amended, and the Banks and the Agent are willing, on the terms and conditions
set forth herein, to amend the Credit Agreement, inter alia, in order to permit
the two-stage refinancing of its Indebtedness under the ACC 9 3/4% Senior
Subordinated Debentures on the terms and conditions set forth (and to be set
forth) in the Indenture to be dated on or about December 20, 2002 among the
Borrower and State Street Bank and Trust Company, as Trustee, the 7 3/4% Senior
Subordinated Notes to be issued by the Borrower thereunder and the offering
memorandum distributed by the Borrower in connection with the sale of such
notes, a copy of each of which has been, or promptly when executed and delivered
or delivered, as the case may be, shall be, delivered to the Agent and each Bank
(such indenture, notes and offering memorandum, the "Subordinated Debt
Refinancing Documents").
NOW, THEREFORE, subject to the satisfaction of the conditions to
effectiveness specified in Section 4, the parties hereto hereby agree as
follows:
Agreement
Section 1. Definitions. All capitalized terms used herein and not
otherwise defined herein shall have the meanings ascribed thereto in the Credit
Agreement.
Section 2. Amendments to the Credit Agreement.
(a) Section 1.1 of the Credit Agreement is hereby amended to add
thereto in the appropriate alphabetical position the following new definitions:
"ACC 7 3/4% Senior Subordinated Notes. The 7 3/4% Senior
Subordinated Notes due December 15, 2012 of the Borrower issued
pursuant to the ACC 7 3/4% Subordinated Indenture.
ACC 7 3/4% Senior Subordinated Indenture. The Indenture, dated
on or about December 20 2002, by and among the Borrower and State
Street Bank and Trust Company, as Trustee, governing the ACC 7 3/4%
Subordinated Debentures."
(b) The definition of "Applicable Margin" in Section 1.1 of
the Credit Agreement is hereby amended and restated in its entirety to read as
follows:
"Applicable Margin. With respect to any fiscal quarter of the
Borrower, the applicable percentage set forth below opposite the Total
Leverage Ratio determined for the most recently ended fiscal quarter
for which the Borrower has delivered financial statements pursuant to
ss.6.4(a) or (b):
Alternate
LIBOR Base Rate
Total Applicable Applicable
Leverage Ratio Margin Margin
Greater than or equal to 6.5:1.0 2.750% 1.50%
Less than 6.5:1.00 but Greater 2.500% 1.250%
than 6.0:1.0
Less than 6.0:1.0 but Greater 2.250% 1.000%
than or equal to 5.5:1.0
Less than 5.5:1.0 but greater 2.000% 0.750%
than or equal to 5.0:1.0
Less than 5.0:1.0 but greater 1.750% 0.500%
than or equal to 4.5:1.0
Less than 4.5:1.0 1.500% 0.250%
provided, that if the Borrower's financial statements are not furnished
to the Banks pursuant to ss.6.4(a) or (b) hereof within five (5)
Business Days after the relevant period of time specified in ss.6.4,
the Applicable Margin with respect to all Loans shall be 2.750% (or
1.500%, for Base Rate Loans) during the period commencing on the date
such statements are due and (provided that such financial statements
are subsequently furnished to the Banks) ending on the date two (2)
days following the delivery to the Agent of the financial statements to
be furnished pursuant to ss.6.4(a) or (b) for the appropriate period."
(c) The definition of "Restricted Payments" in Section 1.1 of the
Credit Agreement is hereby amended and restated in its entirety to
read as follows:
"Restricted Payments. In relation to the Borrower or any of
its Subsidiaries,
(a) the declaration or payment of any dividend on or in respect
of any shares of any class of capital stock or units of partnership or
membership interests of a limited liability company, as applicable, of
such Person, other than dividends payable solely in shares of common
stock or units of partnership or membership interests of a limited
liability company, as applicable, of such Person; the purchase,
redemption, or other retirement of any shares of any class of capital
stock or units of partnership or membership interests of a limited
liability company, as applicable, of such Person, directly or
indirectly through a Subsidiary or otherwise; the return of capital by
such Person to its shareholders or other equity holders as such; or
any other distribution on or in respect of any shares of any class of
capital stock or units of partnership or membership interests of a
limited liability company, as applicable, of such Person;
(b) any payment or prepayment by such Person (whether of
principal, premium, interest or other sum) of or on account of, any
payment or other distribution on account of the redemption,
repurchase, defeasance, retirement or other acquisition for value of,
or any sinking fund payment in respect of, Indebtedness of such Person
which is subordinated to the Obligations, other than the repayment,
redemption, repurchase or defeasance of Indebtedness of such Person by
such Person solely from the proceeds of Permitted Refinancing
Indebtedness arising in connection with the refinancing of such
Indebtedness (provided that the Borrower may pay any premium on any
such Indebtedness out of cash on hand or borrowings hereunder); and
(c) any loan or advance by such Person to, or any other
Investment by such Person in, any Affiliate of such Person (other than
the Borrower or any of its Subsidiaries); and
(d) any other payment or distribution (whether by cash,
obligations, securities or other property) to any Affiliate of such
Person (other than the Borrower or any of its Subsidiaries)."
(d) Section 7.4 of the Credit Agreement is hereby amended (i) to
delete the punctuation "." at the end of clause (f) thereof and to substitute
therefor the punctuation ";" and (ii) to add new clauses (g), (h) and (i) to
such Section 7.4, which new clauses (g), (h) and (i) shall read as follows:
"(g) payments by the Borrower of accrued unpaid interest on ACC 7
3/4% Senior Subordinated Notes at the annual rate of seven and
three-quarters percent (7 3/4%) per annum, provided that such payments
are required by the interest payment provisions, and are not
prohibited by the applicable subordination provisions, contained in
the ACC 7 3/4% Senior Subordinated Indenture as in effect on the
closing date thereunder or as amended from time to time in compliance
with this Credit Agreement;
(h) mandatory redemptions by the Borrower of ACC 7 3/4% Senior
Subordinated Notes in amounts required by the ACC 7 3/4% Senior
Subordinated
Indenture as in effect on closing date thereunder or as amended from
time to time in compliance with this Credit Agreement, provided that
such mandatory redemptions are not prohibited by the applicable
subordination provisions of the ACC 7 3/4% Senior Subordinated
Indenture as in effect on the closing date thereunder or as amended
from time to time in compliance with this Credit Agreement;
(i) a one time payment by the Borrower of cash dividends on
outstanding shares of its capital stock to Xxxxxxxxxx Group, Inc. in an
aggregate amount not to exceed $25,000,000; provided that (i) no
Default or Event of Default is continuing on the date of any such
payment or would result therefrom, and (ii) such payment shall be made
from the proceeds of Permitted Refinancing Indebtedness arising from
the refinancing of the ACC 8 7/8% Senior Subordinated Notes (including
any additional Indebtedness constituting Permitted Refinancing
Indebtedness to which the Majority Banks and the Agent have
consented)."
(e) Section 8.1 of the Credit Agreement is hereby amended and
restated in its entirety to read as follows:
"Section 8.1 Consolidated EBITDA to Consolidated Total
Interest Expense. The Borrower will not permit, as at the end of any
fiscal quarter, the ratio of (a) Consolidated EBITDA for the period of
four consecutive fiscal quarters ending at such date, to (b)
Consolidated Total Interest Expense for such period of four fiscal
quarters, to be less than 1.50:1.0."
(f) Section 8.2 of the Credit Agreement is hereby amended and
restated in its entirety to read as follows:
"Section 8.2 Total Leverage Ratio. The Borrower will not
permit as of any date of determination, the ratio of (a) Total Debt as
at such date to (b) Consolidated EBITDA for the period of four (4)
consecutive fiscal quarters most recently ended for which Borrower has
supplied or is required to supply financial statements pursuant to
ss.6.4(a), and following the Closing, a Compliance Certificate, to
exceed the ratio set forth opposite such period in the table below:
------------------------------------- ----------------------------------
Period Ratio
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Closing Date to 12/31/01 7.00
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1/1/02 to 9/30/02 6.75
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10/1/02 to 9/30/03 7.00
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10/1/03 to 9/30/04 6.75
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10/1/04 and thereafter 6.50
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(g) Section 8.3 of the Credit Agreement is hereby amended and
restated in its entirety to read as follows:
"Section 8.3 Senior Leverage Ratio. The Borrower will not
permit the ratio of (a) Senior Debt as of any date to (b) Consolidated
EBITDA for the four (4) consecutive fiscal quarters most recently ended
for which the Borrower has supplied or is required to supply financial
statements pursuant to ss.6.4(a) and following the Closing, a
Compliance Certificate to exceed 1.50:1.00."
Section 3. Consents and Waivers by the Agent and the Banks.
(a) Consent by the Agent and the Majority Banks to an Increase in
Certain Permitted Refinancing Indebtedness. Each of the Agent and the Banks
hereby consents to the aggregate increase of the amount of Indebtedness
constituting Permitted Refinancing Indebtedness resulting from the refinancing
of the ACC 8 7/8% Senior Subordinated Notes, which increase shall not exceed
$25,000,000, provided that such additional Indebtedness (and all other
Indebtedness arising from the refinancing of the ACC 8 7/8% Senior Subordinated
Notes) complies in all other respects with the requirements of, and otherwise
constitutes, Permitted Refinancing Indebtedness.
(b) Waiver of Section 7.5 of the Credit Agreement with respect to
the Transfer of the WJLA Station License. Each of the Agent and the Banks hereby
waives the restrictions of Section 7.5 of the Credit Agreement solely in order
to permit the assignment of all FCC licenses for WJLA and NewsChannel 8 used in
connection with operation of the respective stations from the Borrower to ACC
Licensee, Inc., a Delaware corporation and wholly-owned Subsidiary of the
Borrower ("ACC Licensee"); provided that, in addition to the conditions
precedent set forth below in Section 5 hereof, such waiver shall not be
effective unless and until ACC Licensee becomes party to the Pledge Agreement
(as a Pledgor and a Pledged Share Issuer thereunder), executes and delivers a
guarantee agreement in the form of the Guaranty Agreement and, together with the
Borrower, otherwise complies with Section 6.18 of the Credit Agreement and
Section 2.3 of the Pledge Agreement in a manner reasonably satisfactory to the
Agent.
Section 4. Consents by the other Loan Parties to the Amendment of the
Credit Agreement.
(a) Each of the Pledgors (as defined in the Pledge Agreement) hereby
confirms and agrees that (i) the Pledge Agreement is, and shall continue to be,
in full force and effect and is hereby ratified and confirmed in all respects,
and (ii) the Pledge Agreement and all of the Collateral described therein does,
and shall continue to, secure the payment and performance of all of the
Obligations.
(b) Each of the Subsidiary Guarantors hereby confirms and agrees
that the Guaranty is, and shall continue to be, in full force and effect and is
hereby ratified and confirmed in all respects.
Section 5. Effectiveness; Conditions to Effectiveness. This Amendment
and Consent shall become effective as of the date first written above only upon
satisfaction in full, in a manner satisfactory to the Banks, of the following
conditions precedent (the first date upon which all such conditions shall have
been satisfied being herein called the "Effective Date"):
(a) Execution of Amendment. The Agent shall have received
counterparts of this Amendment and Consent executed by each Loan Party and each
of the Banks.
(b) Corporate Action. All corporate action necessary for the valid
execution, delivery and performance by each Loan Party of this Amendment and
Consent shall have been duly and effectively taken, and, at the request of any
Bank, evidence thereof satisfactory to such requesting Bank shall have been
provided to each of the Banks.
(c) Arrangement Fee. Each Bank shall have received in cash a
structuring fee equal to 0.50% of such Bank's commitment.
(d) Refinancing Documentation. The Agent shall have received true
and correct copies, in sufficient number for itself and the Banks, of drafts
dated on or about December 13, 2002 of each of the Subordinated Debt Refinancing
Documents, together with any related documents that the Agent may reasonably
request (the "December 13th Drafts").
Section 6. Representations and Warranties; No Default.
(a) The Borrower hereby confirms to the Agent, the Banks and the
Documentation Agent, that, after giving effect to this Amendment and Consent,
the representations and warranties of the Borrower set forth in Section 5 (other
than Section 5.4.2) of the Credit Agreement (as amended hereby) as of the
Effective Date (except to the extent of changes resulting from transactions
contemplated or permitted by the Credit Agreement and changes occurring in the
ordinary course of business that singly or in the aggregate are not materially
adverse, and to the extent that such representations and warranties relate
expressly to an earlier date), as if set forth herein in full. The Borrower
hereby certifies that no Default or Event of Default has occurred and is
continuing under the Credit Agreement.
(b) The Borrower hereby represents and warrants to the Agent and
each of the Banks that the final offering memorandum and execution copies of the
other Subordinated Notes Refinancing Documents shall be substantially similar to
the December 13 Drafts. For the avoidance of doubt, a misrepresentation under,
or breach of the warranty in, this clause (b) shall be for all purposes under
the Credit Agreement an Event of Default under Section 11.1(a) of the Credit
Agreement.
Section 7. Reference to and Effect on the Loan Documents.
(a) On and after the effectiveness of this Amendment and Consent,
each reference in the Credit Agreement, Pledge Agreement, Guaranty and each of
the other Loan Documents to (i) the "Credit Agreement", "thereunder", "thereof"
or words of like import referring to the Credit Agreement, shall mean and be a
reference to the Credit Agreement, as amended by this Amendment and Consent,
(ii) the "Pledge Agreement", "thereunder", "thereof" or words of like import
referring to the Pledge Agreement, shall mean and be a reference to the Pledge
Agreement, as amended by this Amendment and Consent, and (iii) the "Guaranty",
"Guaranty Agreement", "thereunder", "thereof" or words of like import referring
to the Guaranty, shall mean and be a reference to the Guaranty, as amended by
this Amendment and Consent.
(b) The Credit Agreement, the Notes, and each of the other Loan
Documents, in each case, as amended hereby, are and shall continue to be in full
force and effect and are hereby ratified and confirmed in all respects.
(c) The execution, delivery and effectiveness of this Amendment and
Consent shall not, except as expressly provided herein, operate as a waiver of
any right, power or remedy of any Bank or the Agent under any of the Loan
Documents, nor constitute a waiver of any provision of the Loan Documents,
except as expressly set forth herein.
Section 8. Fees and Expenses. The Borrower agrees to pay on demand all
the Agent's reasonable expenses in preparing, executing and delivering this
Amendment and Consent, and all related instruments and documents, including,
without limitation, the reasonable fees and out-of-pocket expenses of the
Agent's special counsel, Xxxxxxx Procter LLP.
Section 9. Execution in Counterparts. This Amendment and Consent 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 to be an original and all of which counterparts taken together shall
constitute but one and the same instrument. Delivery of an executed counterpart
of a signature page to this Amendment and Consent by telecopier shall be
effective as delivery of a manually executed counterpart of a signature page to
this Amendment and Consent.
Section 10. Governing Law. This Amendment and Consent shall be a Loan
Document and shall be governed by and construed and enforced under the laws of
The Commonwealth of Massachusetts.
[Signature Page(s) Follow]
IN WITNESS WHEREOF, the Borrower, Xxxxxxxxxx Group and the Subsidiary
Guarantors, the Banks, the Agent and the Documentation Agent have caused this
Amendment and Consent to be executed by their duly authorized officers as of the
date first set forth above.
XXXXXXXXXX COMMUNICATIONS
COMPANY, as Borrower and Pledgor
By /s/ Xxxxxxx X. Xxxxxx
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Name: Xxxxxxx X. Xxxxxx
Title: Senior Vice President
XXXXXXXXXX GROUP, INC., as Pledgor
By /s/ Xxxxxxx X. Xxxxxx
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Name: Xxxxxxx X. Xxxxxx
Title: Vice President
ALLFINCO, INC., as Pledgor and Guarantor
By /s/ Xxxxxxx X. Xxxxxx
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Name: Xxxxxxx X. Xxxxxx
Title: Vice President
KATV, LLC, as Pledgor and Guarantor
By /s/ Xxxxxxx X. Xxxxxx
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Name: Xxxxxxx X. Xxxxxx
Title: Vice President
KTUL, LLC, as Pledgor and Guarantor
By /s/ Xxxxxxx X. Xxxxxx
----------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
WSET, INCORPORATED, as Pledgor and Guarantor
By /s/ Xxxxxxx X. Xxxxxx
----------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
XXXXXXXXXX TELEVISION PRODUCTIONS, INC., as
Pledgor and Guarantor
By /s/ Xxxxxxx X. Xxxxxx
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Name: Xxxxxxx X. Xxxxxx
Title: Vice President
TV ALABAMA, INC., as Pledgor and Guarantor
By /s/ Xxxxxxx X. Xxxxxx
----------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
HARRISBURG TELEVISION, INC., as Pledgor
and Guarantor
By /s/ Xxxxxxx X. Xxxxxx
----------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
WCIV, LLC, as Pledgor and Guarantor
By /s/ Xxxxxxx X. Xxxxxx
----------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
ACC LICENSEE, INC., as Pledgor and Guarantor
By /s/ Xxxxxxx X. Xxxxxx
----------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
FLEET NATIONAL BANK, individually
and as Agent
By /s/ Xxxxxx Xxxxxxxx
------------------------------------
Name: Xxxxxx Xxxxxxxx
Title: Director
DEUTSCHE BANK TRUST COMPANY
AMERICAS
By
------------------------------------
Name:
Title:
FLEET NATIONAL BANK, individually
and as Agent
By
------------------------------------
Name:
Title:
DEUTSCHE BANK TRUST COMPANY
AMERICAS
By /s/ Xxxxxxx Xxxxxxx
------------------------------------
Name: Xxxxxxx Xxxxxxx
Title: Director
