EXHIBIT 10.3
FIRST AMENDMENT TO CREDIT AGREEMENT
THIS FIRST AMENDMENT TO CREDIT AGREEMENT (the "Amendment"), dated as of
August 24, 1999, is entered into by and among XXXXXX COMPANIES INC. (the
"Company"), BANK OF AMERICA, N.A., formerly known as Bank of America National
Trust and Savings Association, as agent for itself and the Lenders (the
"Agent"), and the several financial institutions party to the Credit Agreement
(collectively, the "Lenders").
RECITALS
A. The Company, Lenders, and Agent are parties to a Credit Agreement
dated as of June 24, 1999 (the "Credit Agreement") pursuant to which the Agent
and the Lenders have extended certain credit facilities to the Company.
B. The Company has requested that the Lenders agree to certain amendments
of the Credit Agreement.
C. The Lenders are willing to amend the Credit Agreement, subject to the
terms and conditions of this Amendment.
NOW, THEREFORE, for valuable consideration, the receipt and adequacy of
which are hereby acknowledged, the parties hereto hereby agree as follows:
1. Defined Terms. Unless otherwise defined herein, capitalized terms
used herein shall have the meanings, if any, assigned to them in the Credit
Agreement.
2. Amendment to Credit Agreement. Section 6.16 of the Credit Agreement
shall be amended and restated to read as follows:
6.16 Swap Contracts. On or before a date sixty (60) days after the
Closing Date (the "Swap Date"), the Company shall enter into one or more
Swap Contracts each with December 31, 2004 as the final scheduled payment
date. At all times after the Swap Date, the Company shall maintain Swap
Contracts with an aggregate notional amount of not less than the then
outstanding aggregate Term Loans minus Ninety Million Dollars
($90,000,000).
3. Representations and Warranties. The Company hereby represents and
warrants to the Agent and the Lenders as follows:
(a) No Default or Event of Default has occurred and is continuing.
(b) The execution, delivery and performance by the Company of this
Amendment have been duly authorized by all necessary corporate and other action
and do not and will not require any registration with, consent or approval of,
notice to or action by, any Person (including any Governmental Authority) in
order to be effective and enforceable. The Credit Agreement as amended by this
Amendment constitutes the legal, valid and binding obligations of the Company,
enforceable against it in accordance with its respective terms, without defense,
counterclaim or offset.
(c) All representations and warranties of the Company contained in
the Credit Agreement are true and correct.
(d) The Company is entering into this Amendment on the basis of its
own investigation and for its own reasons, without reliance upon the Agent and
the Lenders or any other Person.
4. Effective Date. This Amendment will become effective as of August 27,
1999, provided that the Agent has received from the Company and the Lenders a
duly executed original (or, if elected by the Agent, an executed facsimile copy)
of this Amendment, together with a duly executed Guarantor Acknowledgment and
Consent in the form attached hereto.
5. Company Resolutions. The Company agrees to deliver to the Agent on or
before September 21, 1999 a copy of a resolution passed by the board of
directors of the Company, certified by the Secretary or an Assistant Secretary
of the Company, ratifying the execution, delivery and performance of this
Amendment. The Company further agrees that it shall be an additional Event of
Default under the Credit Agreement if the Company shall fail to deliver such
resolutions to the Agent on or before such date.
6. Reservation of Rights. The Company acknowledges and agrees that the
execution and delivery by the Agent and the Lenders of this Amendment shall not
be deemed to create a course of dealing or otherwise obligate the Agent or the
Lenders to forbear or execute similar amendments under the same or similar
circumstances in the future.
7. Miscellaneous.
(a) Except as herein expressly amended, all terms, covenants and
provisions of the Credit Agreement are and shall remain in full force and effect
and all references therein to such Credit Agreement shall henceforth refer to
the Credit Agreement as amended by this Amendment. This Amendment shall be
deemed incorporated into, and a part of, the Credit Agreement.
(b) This Amendment shall be binding upon and inure to the benefit of
the parties hereto and thereto and their respective successors and assigns. No
third party beneficiaries are intended in connection with this Amendment.
(c) This Amendment shall be governed by and construed in accordance
with the law of the State of Washington.
(d) This Amendment may be executed in any number of counterparts,
each of which shall be deemed an original, but all such counterparts together
shall constitute but one and the same instrument. Each of the parties hereto
understands and agrees that this document (and any other document required
herein) may be delivered by any party thereto either in the form of an executed
original or an executed original sent by facsimile transmission to be followed
promptly by mailing of a hard copy original, and that receipt by the Agent of a
facsimile transmitted document purportedly bearing the signature of a Lender or
the Company shall bind such Lender or the Company, respectively, with the same
force and effect as the delivery of a hard copy original. Any failure by the
Agent to receive the hard copy executed original of such document shall not
diminish the binding effect of receipt of the facsimile transmitted executed
original of such document of the party whose hard copy page was not received by
the Agent.
(e) This Amendment, together with the Credit Agreement, contains the
entire and exclusive agreement of the parties hereto with reference to the
matters discussed herein and therein. This Amendment supersedes all prior
drafts and communications with respect thereto. This Amendment may not be
amended except in accordance with the provisions of Section 10.01 of the Credit
Agreement.
(f) If any term or provision of this Amendment shall be deemed
prohibited by or invalid under any applicable law, such provision shall be
invalidated without affecting the remaining provisions of this Amendment or the
Credit Agreement, respectively.
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(g) The Company covenants to pay to or reimburse the Agent and the
Lenders, upon demand, for all costs and expenses (including allocated costs of
in-house counsel) incurred in connection with the development, preparation,
negotiation, execution and delivery of this Amendment, including without
limitation appraisal, audit, search and filing fees incurred in connection
therewith.
8. 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.
IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Amendment as of the date first above written.
XXXXXX COMPANIES INC.
By: /s/
-----------------------------
Title: __________________________
BANK OF AMERICA, N.A., as Agent
By: /s/
-----------------------------
Title: __________________________
BANK OF AMERICA, N.A., as a Lender
By: /s/
-----------------------------
Title: __________________________
U.S. BANK NATIONAL ASSOCIATION, as a Lender
By: /s/
-----------------------------
Title: __________________________
CREDIT SUISSE FIRST BOSTON, as a Lender
By: /s/
-----------------------------
Title: __________________________
By: /s/
-----------------------------
Title: __________________________
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BANKBOSTON, N.A., as a Lender
By: /s/
-----------------------------
Title: __________________________
THE BANK OF NOVA SCOTIA, as a Lender
By: /s/
-----------------------------
Title: __________________________
BANK OF MONTREAL, as a Lender
By: /s/
-----------------------------
Title: __________________________
KEY CORPORATE CAPITAL INC., as a Lender
By: /s/
-----------------------------
Title: __________________________
THE BANK OF NEW YORK, as a Lender
By: /s/
-----------------------------
Title: __________________________
UNION BANK OF CALIFORNIA, N.A., as a Lender
By: /s/
-----------------------------
Title: __________________________
THE FUJI BANK, LIMITED, as a Lender
By: /s/
-----------------------------
Title: __________________________
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CITY NATIONAL BANK, as a Lender
By: /s/
-----------------------------
Title: __________________________
CREDIT SUISSE FIRST BOSTON,as Syndication Agent
By: /s/
-----------------------------
Title: __________________________
By: /s/
-----------------------------
Title: __________________________
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GUARANTOR ACKNOWLEDGMENT AND CONSENT
The undersigned, each a guarantor with respect to the Company's obligations
to the Agent and the Lenders under the Credit Agreement, each hereby (i)
acknowledge and consent to the execution, delivery and performance by Company of
the foregoing First Amendment to Credit Agreement (the "Amendment"), and (ii)
reaffirm and agree that the respective guaranty, third party pledge or security
agreement to which the undersigned is party and all other documents and
agreements executed and delivered by the undersigned to the Agent and the
Lenders in connection with the Credit Agreement are in full force and effect,
without defense, offset or counterclaim. (Capitalized terms used herein have
the meanings specified in the Amendment.)
XXXXXX BROADCASTING INC.
Dated: August 25, 1999 By: /s/
--------------- ----------------------------
Title: _________________________
XXXXXX XXXXX INC.
Dated: August 26, 1999 By: /s/
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Title: _________________________
XXXXXX PROPERTIES INC.
Dated: August 26, 1999 By: /s/
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Title: _________________________
XXXXXX BROADCASTING - FRESNO, L.L.C.
Dated: August 25, 1999 By: /s/
--------------- ----------------------------
Title: _________________________
XXXXXX BROADCASTING - GEORGIA, L.L.C.
Dated: August 25, 1999 By: /s/
--------------- ----------------------------
Title: _________________________
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