EXHIBIT 10.39
GRANITE BROADCASTING CORPORATION
FIRST AMENDMENT TO
FOURTH AMENDED AND RESTATED CREDIT AGREEMENT
This FIRST AMENDMENT TO FOURTH AMENDED AND RESTATED CREDIT
AGREEMENT (this "Amendment") is dated as of March 23, 1999 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, 1999 (the "Credit Agreement"), 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. Capitalized terms used
herein without definition shall have the same meanings herein as set forth in
the Credit Agreement.
RECITALS
WHEREAS, Company and Lenders desire to amend the Credit
Agreement to adjust the leverage covenant set forth therein pending the sale of
television station KEYE-TV serving Austin, Texas, on the terms and conditions
set forth herein:
NOW, THEREFORE, in consideration of the premises and the
agreements, provisions and covenants herein contained, the parties hereto agree
as follows:
SECTION 1. AMENDMENTS TO THE CREDIT AGREEMENT
1.1 AMENDMENTS TO SUBSECTION 7.6A: MAXIMUM TOTAL DEBT RATIO
Subsection 7.6A of the Credit Agreement is hereby amended by
inserting the following proviso at the end thereof:
PROVIDED, that, until Company and its Subsidiaries shall have
consummated the sale of network-affiliated television station KEYE-TV
serving Austin, Texas, for any fiscal quarter ending during any period
set forth below and before the date of such sale, the following ratios
shall apply:
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Period Maximum Total Debt Ratio
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1/01/99 - 12/31/99 7.25 to 1
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1/01/00 - 3/31/00 7.00 to 1
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4/01/00 - 6/30/00 6.75 to 1
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1.2 AMENDMENT TO SECTION 6.12: AFTER-ACQUIRED REAL PROPERTY
SECURITY
Subsection 6.12 of the Credit Agreement is hereby amended by
inserting the following proviso at the end thereof:
"; PROVIDED, further that on or before April 30, 1999 Company shall
cause RJR Communications, Inc, to execute and deliver to Administrative
Agent a Subsidiary Mortgage in form and substance satisfactory to
Administrative Agent encumbering its interest in the property at 000
Xxxx Xxxxxx Xxxxx, Xxxxxx, Xxxxxxxxx, and shall take such further
action with respect thereto as Administrative Agent shall reasonably
request."
1.3 AMENDMENTS TO SUBSECTION 9.7: APPOINTMENT OF COLLATERAL
AGENT
Subsection 9.7 of the Credit Agreement is hereby amended by
inserting the following sentence at the end thereof:
"Notwithstanding anything to the contrary in the Loan Documents,
without further written consent or authorization from Lenders,
Administrative Agent or Collateral Agent (as applicable) may execute
any documents or instruments necessary to (a) release any Lien
encumbering any item of Collateral that is the subject of a sale or
other disposition of assets permitted by Subsection 7.7 of this
Agreement or to which Requisite Lenders have otherwise consented or (b)
release any Subsidiary Guarantor from the Subsidiary Guaranty if all of
the capital stock of such Subsidiary Guarantor is sold to any Person
(other than an Affiliate of Company) pursuant to a sale or other
disposition permitted hereunder or to which Requisite Lenders have
otherwise consented."
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.
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. 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, WKBW-TV, Inc., Queen City
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. Each 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 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 subsection 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.
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 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]
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.
COMPANY:
GRANITE BROADCASTING CORPORATION
By: /S/ XXXXX XXXXXXX
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Name: Xxxxx XxXxxxx
Title: Vice President Corporate
Development and Treasurer
LENDERS:
BANKERS TRUST COMPANY,
individually and as Administrative Agent
By: /S/ XXXXXXXX XXXXX
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Name: Xxxxxxxx Xxxxx
Title: Principal
THE BANK OF NEW YORK
By: /S/ XXXXX X. XXXXXXXXXX
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Name: Xxxxx X. Xxxxxxxxxx
Title: Vice President
XXXXXXX XXXXX CREDIT PARTNERS L.P.
By: /S/ XXXXXX X. X'XXXX
------------------------------------
Name: Xxxxxx X. X'Xxxx
Title: Authorized Signatory
UNION BANK OF CALIFORNIA, N.A.
By: /S/ XXXX X. XXXXXXXX
------------------------------------
Name: Xxxx X. Xxxxxxxx
Title: Assistant Vice President
ABN AMRO BANK, N.V.
By: /S/ XXXXXX X. XXXXXX
------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President
By: /S/ XXX SCHWALBENBORG
------------------------------------
Name: Xxx Schwalbenborg
Title: Vice President
NATEXIS BANQUE BFCE
By: /S/ XXXX X. XXXXX
------------------------------------
Name: Xxxx X. Xxxxx
Title: Assistant Vice President
By: /S/ XXXXX X. XXXXXX, XX.
------------------------------------
Name: Xxxxx X. Xxxxxx, Xx.
Title: Vice President
COMPAGNIE FINANCIERE DE CIC ET DE L'UNION
EUROPEENNE
By: /S/ XXXXXX XXXXXX
------------------------------------
Name: Xxxxxx Xxxxxx
Title: Vice President
By: /S/ XXXXXXX XXXX
------------------------------------
Name: Xxxxxxx Xxxx
Title: Vice President
XXXXXX FINANCIAL, INC.
By: /S/ XXXXX X. XXXX
------------------------------------
Name: Xxxxx X. Xxxx
Title: Senior Vice President
PARIBAS
By: /S/ XXXXXXX X. XXXXXX
------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Director
THE BANK OF NOVA SCOTIA
By: /S/ XXX X. RODGART
------------------------------------
Name: Xxx X. Rodgart
Title: Authorized Signatory
BANQUE NATIONALE DE PARIS
By: /S/ XXXXXXXXX XXXXXX
------------------------------------
Name: Xxxxxxxxx Xxxxxx
Title: Vice President
By: /S/ XXXXX XXXXXXXXX
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Name: Xxxxx Xxxxxxxxx
Title: Vice President
MELLON BANK, N.A.
By: /S/ XXXXXXXX X. XXXXXXXXX
------------------------------------
Name: Xxxxxxxx X. Xxxxxxxxx
Title: Officer
BANK OF TOKYO-MITSUBISHI TRUST COMPANY
By: /S/ XXXXX XXXXXX
------------------------------------
Name: Xxxxx Xxxxxx
Title: Assistant Vice President
FREMONT FINANCIAL CORPORATION
By: /S/ XXXXX XXXXXXXX
------------------------------------
Name: Xxxxx Xxxxxxxx
Title: Vice President
SOUTHERN PACIFIC BANK
By: /S/ XXXXXX X. XXXXXXXXXX
------------------------------------
Name: Xxxxxx X. Xxxxxxxxxx
Title: Senior Vice President
For the purposes of Section 3 only:
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, INC.
WTVH LICENSE, INC.
WWMT-TV, INC.
WWMT-TV LICENSE, INC.
WKBW-TV, INC.
WKBW-TV LICENSE, INC.
QUEEN CITY BROADCASTING, 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.,
each as a Credit Support Party
By: /S/ XXXXX XXXXXXX
--------------------------------
Name: Xxxxx XxXxxxx
Title: Vice President Corporate
Development and Treasurer
