Exhibit 4.7.2
AMENDMENT NO. 2
This Amendment No. 2, dated as of June 28, 2002 (this
"AMENDMENT"), among Xxxxxx Communications Corporation, a Delaware corporation
(the "BORROWER"), the Lenders (as defined below) party hereto and the
Administrative Agent (as defined below) amends certain provisions of the Credit
Agreement, dated as of July 12, 2001, among the Borrower, the Lenders (as
defined in the Credit Agreement referred to below), Citicorp USA, Inc., as
administrative agent for the Lenders and as collateral agent for the Secured
Parties under the Collateral Documents (in each such capacity, the
"ADMINISTRATIVE AGENT"), Union Bank of California, N.A., as syndication agent
for the Lenders, and CIBC, Inc. and General Electric Capital Corporation, each
as co-documentation agents for the Lenders, as amended by Amendment Xx. 0, xxxxx
xx xx Xxxxxxx 0, 0000 (xx amended, the "CREDIT AGREEMENT").
W I T N E S S E T H:
WHEREAS, the Borrower, the Lenders and the Administrative
Agent are parties to the Credit Agreement and, as of the date hereof, the
Lenders consenting to this Amendment constitute the Requisite Lenders (as
defined in the Credit Agreement);
WHEREAS, the Borrower, the Lenders party hereto and the
Administrative Agent have agreed to make certain amendments to the Credit
Agreement as set forth herein;
WHEREAS, pursuant to Section 11.1 of the Credit Agreement, the
consent of the Requisite Lenders is required to amend the provisions of the
Credit Agreement as set forth herein;
NOW, THEREFORE, in consideration of the foregoing, the mutual
covenants and obligations herein set forth and other good and valuable
consideration, the adequacy and receipt of which is hereby acknowledged, and in
reliance upon the representations, warranties and covenants herein contained,
the parties hereto, intending to be legally bound, hereby agree as follows:
SECTION 1. DEFINITIONS. Unless otherwise defined herein,
capitalized terms used herein shall have the meanings ascribed to such terms in
the Credit Agreement.
SECTION 2. AMENDMENTS TO CREDIT AGREEMENT. Effective as of the
Effective Date (as defined below) and subject to the terms and conditions set
forth herein, the Credit Agreement is hereby amended as follows:
(a) By amending and restating in its entirety the definition
of "Applicable Margin" in Section 1.1 (Defined Terms) of the Credit Agreement to
read as follows:
"APPLICABLE MARGIN" means (a) with respect to the Term B Loans
maintained as (i) Base Rate Loans, a rate equal to 2.25% per annum and
(ii) Eurodollar Rate Loans, a rate equal to 3.25% per annum and (b)
with respect to Term A Loans and Revolving Loans, (x) during the period
commencing on the Closing Date and ending one Business Day after the
receipt by the Administrative Agent of the financial statements
required to be delivered by Section 6.1(b) for the full fiscal quarter
ending December 31, 2003, if maintained (i) as Base Rate Loans, a rate
equal to 2.25% per annum and (ii) as Eurodollar Rate Loans, a rate
equal to 3.25% per annum, and (y) thereafter, as of any date of
determination, a per annum rate equal to the rate set forth below
opposite the applicable type of Loan and the then applicable Leverage
Ratio (determined for the twelve-month period ending on the last day
of the most recent Fiscal Quarter or Fiscal Year, as applicable, for
which Financial Statements have been delivered pursuant to SECTION 6.1)
set forth below:
Term A Loans & Revolving Loans
--------------------------------------------------
Leverage Ratio Base Rate Loans Eurodollar Rate Loans
-------------- --------------- ---------------------
Greater than 6 to 1 2.25% 3.25%
Equal to or less than 6 to 1 and
greater than 4.5 to 1 2.00% 3.00%
Equal to or less than 4.5 to 1 1.75% 2.75%
Subsequent changes in the Applicable Margin resulting from a change in
the Leverage Ratio shall become effective as to all Loans one Business
Day after delivery by the Borrower to the Administrative Agent of new
financial statements pursuant to SECTION 6.1(B) for each of the first
three Fiscal Quarters of each Fiscal Year and SECTION 6.1(C) for each
Fiscal Year. Notwithstanding anything to the contrary set forth in this
Agreement (including the then effective Leverage Ratio), if the
Borrower shall fail to deliver such financial statements within the
time periods specified in SECTION 6.1(B) or (C), as applicable, the
Applicable Margin from and including the 46th day after the end of such
Fiscal Quarter or the 91st day after the end of such Fiscal Year, as
the case may be, to but not including the date the Borrower delivers to
the Administrative Agent such financial statements shall equal the
highest Applicable Margin set forth above.
(b) By amending and restating in its entirety the definition
of "Capital Expenditures" in Section 1.1 (Defined Terms) of the Credit Agreement
to read as follows:
"CAPITAL EXPENDITURES" means for any period, the aggregate of
all expenditures (whether paid in cash or accrued as a liability and
including that portion of Capital Leases which is capitalized on the
consolidated balance sheet of the Borrower) by the Borrower and its
Subsidiaries during such period that, in conformity with GAAP, are
included as additions to property, plant or equipment as reflected in
the consolidated statement of changes in financial position of the
Borrower and its Subsidiaries, including, but not limited to, capital
expenditures (a) made in connection with the conversion of a Station
from an analog broadcast format to a digital broadcast format, (b)
pursuant to joint sales agreements and (c) on capital maintenance;
PROVIDED, HOWEVER, that Capital Expenditures shall not include for
purposes hereof Programming Rights Payments.
(c) By amending and restating in its entirety clause (h) of
the definition of "Indebtedness" in Section 1.1 (Defined Terms) of the Credit
Agreement to read as follows:
(h) all obligations of such Person to purchase, redeem,
retire, defease or otherwise acquire for value, prior to the 91st day
after the Final Maturity Date, any capital stock of such Person,
(d) By amending and restating in its entirety clause (c)(i) of
the definition of "Net Cash Proceeds" in Section 1.1 (Defined Terms) of the
Credit Agreement to read as follows:
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(c)(i) Equity Issuance (other than any such issuance of
Common Stock occurring in the ordinary course of business to any
director, member of the management or employee of the Borrower or its
Subsidiaries), or
(e) By amending and restating in its entirety clause (b) of
the definition of "Permitted Acquisition" in Section 1.1 (Defined Terms) of the
Credit Agreement to read as follows:
(b) such proposed acquisition shall not be consummated prior
to delivery by the Borrower of a Compliance Certificate for the Fiscal
Quarter ended March 31, 2005 and the Borrower shall have demonstrated,
to the Administrative Agent's reasonable satisfaction, that the
Borrower shall be in compliance with the financial covenants set forth
in SECTIONS 5.3 through 5.7 on an historical pro forma basis for the
period of four Fiscal Quarters ending immediately prior to such
proposed acquisition (assuming such acquisition occurred on the first
day of the applicable period);
(f) By amending and restating in its entirety the definition
of "Pre-Approved Station Sale" in Section 1.1 (Defined Terms) of the Credit
Agreement to read as follows:
"PRE-APPROVED STATION SALE" means any Asset Sale in respect of
the Borrower's broadcasting stations in each of (a) WJPX-TV, San Xxxx,
Puerto Rico, (b) WKPV-TV, Xxxxx, Puerto Rico (c) WJWN-TV, San
Sebastian, Puerto Rico, (d) KPXO(TV), Kaneohe, Hawaii,(e) WPXB (TV),
Merrimack, New Hampshire, (f) W34CP, East Orange, New Jersey, (g)
WPXU-LP, Amityville, New York, (h) WPXO(TV), Christiansted, St. Croix,
U.S. Virgin Islands, (i) KBPX-LP, Houston, Texas, (j) WBPX-LP, West
Palm Beach, Florida, (k) W33BZ, Xxxxxx, Maine, (l) WIPX-LP,
Indianapolis, Indiana, (m) KAPX, Albuquerque, New Mexico and (n) KPXF,
Fresno, California.
(g) By amending and restating in its entirety the definition
of "Preferred Stock" in Section 1.1 (Defined Terms) of the Credit Agreement to
read as follows:
"PREFERRED STOCK" means the 8% Series B Convertible
Exchangeable Preferred Stock, the 13-1/4% Cumulative Junior
Exchangeable Preferred Stock, the 9-3/4% Series A Convertible Preferred
Stock, the 12-1/2% Cumulative Exchangeable Preferred Stock and any New
Preferred Stock.
(h) By amending and restating in its entirety the definition
of "Preferred Stock Documents" in Section 1.1 (Defined Terms) of the Credit
Agreement to read as follows:
"PREFERRED STOCK DOCUMENTS" means, in respect of any Preferred
Stock, the certificates of designation and any indentures and exchange
debentures relating to such Preferred Stock as set forth on Schedule
III and the certificates of designation and any indentures and exchange
debentures relating to any New Preferred Stock.
(i) By amending Section 1.1 (Defined Terms) of the Credit
Agreement to insert the following definition of "Common Stock" in the correct
alphabetical order:
"COMMON STOCK" means the Class A or Class C Common Stock, par
value $0.001 per share, of the Borrower.
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(j) By amending Section 1.1 (Defined Terms) of the Credit
Agreement to insert the following definition of "Effective Date" in the correct
alphabetical order:
"EFFECTIVE DATE" has the meaning set forth in that certain
Amendment No. 2, dated as of June 28, 2002, among the Borrower, the
Lenders party thereto and the Administrative Agent.
(k) By amending Section 1.1 (Defined Terms) of the Credit
Agreement to insert the following definition of "New Preferred Stock" in the
correct alphabetical order:
"NEW PREFERRED STOCK" means any Stock of the Borrower
designated as preferred stock and issued after the Closing Date (other
than shares of Preferred Stock issued as dividends with respect to
outstanding shares of Preferred Stock), the terms of which provide that
(i) no cash dividends shall be paid on such New Preferred Stock prior
to the 91st day after the Final Maturity Date and (ii) such New
Preferred Stock shall not be mandatorily redeemable or require any
other cash payment to the holders thereof prior to the 91st day after
the Final Maturity Date and which shall otherwise be on terms
(including in respect of the redemption and dividend amount, redemption
and dividend payment dates, and redemption and payment provisions)
which, taken as a whole, are no less favorable to the Borrower and the
Lenders than the terms of the Preferred Stock being redeemed or
exchanged pursuant to SECTION 8.5(B); PROVIDED, HOWEVER, that no such
New Preferred Stock shall be permitted to be issued if a Default or
Event of Default has occurred which is continuing or would result
therefrom.
(l) By amending Section 1.1 (Defined Terms) of the Credit
Agreement to insert the following definition of "Station EBITDA" in the correct
alphabetical order:
"STATION EBITDA" means, with respect to any Station for any
period, (i) Station revenues (excluding any allocation of network
revenues) MINUS (ii) Station operating expenses (excluding
depreciation, amortization and any allocation of corporate overhead or
Programming Amortization Expense).
(m) By amending and restating clause (a) of Section 2.7
(Mandatory Prepayments) of the Credit Agreement in its entirety to read as
follows:
(a) Upon receipt by the Borrower or any of its Subsidiaries of
Net Cash Proceeds arising (i) from Spectrum License Sales, the Borrower
shall, within one Business Day prepay the Loans in amounts equal to
100% of the first $75,000,000 of such aggregate Net Cash Proceeds and
50% of such aggregate Net Cash Proceeds in excess of $75,000,000; (ii)
from (A) any other Asset Sale (other than (x) a Pre-Approved
Transaction and (y) the first $50,000,000 of aggregate Net Cash
Proceeds from all Asset Sales (other than Spectrum License Sales and
Pre-Approved Transactions); PROVIDED, that the Leverage Ratio for the
twelve-month period ending on the last day of the most recent Fiscal
Quarter prior to such Asset Sale for which a Compliance Certificate has
been delivered (determined after giving effect to the application of
such proceeds and excluding Station EBITDA for any Station subject to
such Asset Sale from the calculation of EBITDA for such period) is not
greater than the Leverage Ratio for such period), (B) any Property Loss
Event or (C) Debt Issuance, the Borrower shall within one Business Day
prepay the Loans in an amount equal to 100% of such Net Cash Proceeds,
and (iii) from an Equity Issuance (other than (w) issuance by the
Borrower of Common Stock or New Preferred Stock but only to the extent
the Net Cash Proceeds of such issuance are used to redeem Preferred
Stock pursuant
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to SECTION 8.5(B), (x) issuance by the Borrower of its Stock pursuant
to employee option plans, (y) Common Stock issued pursuant to the
exercise of warrants issued in connection with the issuance of the
9-3/4% Preferred Stock and (z) the first $50,000,000 of aggregate Net
Cash Proceeds of other Equity Issuances), the Borrower shall
immediately prepay the Loans in an amount equal to 100% (or, if, at any
time following delivery of a Compliance Certificate for the Fiscal
Quarter ended March 31, 2005, the Leverage Ratio for the twelve-month
period ending on the last day of the Fiscal Quarter most recently ended
is less than 5.5 to 1 (determined on a pro forma basis after giving
effect to the application of such proceeds), then 50%) of such Net Cash
Proceeds; PROVIDED, HOWEVER, that in the case of any Net Cash Proceeds
arising from a Reinvestment Event, the Borrower shall prepay the Loans
in an amount equal to the Reinvestment Prepayment Amount applicable to
such Reinvestment Event, if any, on the Reinvestment Prepayment Date
with respect to such Reinvestment Event and, pending application of
such proceeds as specified in the Reinvestment Notice, shall pay the
same to the Administrative Agent to be held in a Cash Collateral
Account. Any such mandatory prepayment shall be applied in accordance
with SECTION 2.7(C) below; provided further, however, that no
Reinvestment Event shall be permitted to occur in respect of any Net
Cash Proceeds which are otherwise required (pursuant to the terms of
any Subordinated Debt Document or Preferred Stock Document) to be
applied in prepayment of the Loans, or where the failure to apply such
Net Cash Proceeds in prepayment of the Loans would result in an
obligation to redeem or repurchase any Subordinated Debt or Preferred
Stock.
(n) By amending and restating Section 5.1 (Minimum Net
Revenue) of the Credit Agreement in its entirety to read as follows:
The Borrower will have, as of the last day of each Fiscal
Quarter set forth below, Net Revenue for the four Fiscal Quarters
ending on such day of not less than the following:
Fiscal Quarter Ending Minimum Net Revenue
--------------------- -------------------
June 30, 2001 $230,000,000
September 30, 2001 $230,000,000
December 31, 2001 $230,000,000
March 31, 2002 $240,000,000
June 30, 2002 $240,000,000
September 30, 2002 $245,000,000
December 31, 2002 $250,000,000
March 31, 2003 $260,000,000
June 30, 2003 $270,000,000
September 30, 2003 $280,000,000
December 31, 2003 $290,000,000
March 31, 2004 $300,000,000
June 30, 2004 $310,000,000
September 30, 2004 $320,000,000
December 31, 2004 $330,000,000
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(o) By amending and restating Section 5.2 (Minimum EBITDA) of
the Credit Agreement in its entirety to read as follows:
The Borrower will have, as of the last day of each Fiscal
Quarter set forth below, EBITDA for the four Fiscal Quarters ending on
such day of not less than the following:
Fiscal Quarter Ending Minimum EBITDA
--------------------- --------------
June 30, 2001 $ 3,000,000
September 30, 2001 $12,000,000
December 31, 2001 $15,000,000
March 31, 2002 $18,000,000
June 30, 2002 $19,000,000
September 30, 2002 $11,000,000
December 31, 2002 $14,000,000
March 31, 2003 $20,000,000
June 30, 2003 $34,000,000
September 30, 2003 $45,000,000
December 31, 2003 $50,000,000
March 31, 2004 $56,000,000
June 30, 2004 $62,000,000
September 30, 2004 $68,000,000
December 31, 2004 $75,000,000
(p) By amending and restating Section 5.3 (Maximum Senior Debt
Leverage Ratio) of the Credit Agreement in its entirety to read as follows:
The Borrower will maintain a Senior Debt Leverage Ratio, as
determined as of the last day of each Fiscal Quarter set forth below,
for the twelve months ending on such day of not more than the maximum
ratio set forth below opposite such Fiscal Quarter:
Maximum Senior Debt
Fiscal Quarter Ending Leverage Ratio
--------------------- -------------------
March 31, 2005 2.25 to 1
June 30, 2005 2.25 to 1
September 30, 2005 2.00 to 1
December 31, 2005 2.00 to 1
March 31, 2006 2.00 to 1
June 30, 2006 2.00 to 1
(q) By amending and restating Section 5.4 (Maximum Leverage
Ratio) of the Credit Agreement in its entirety to read as follows:
The Borrower will maintain a Leverage Ratio, as determined as
of the last day of each Fiscal Quarter set forth below, for the twelve
months ending on such day of not more than the maximum ratio set forth
below opposite such Fiscal Quarter:
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Fiscal Quarter Ending Maximum Leverage Ratio
--------------------- ----------------------
March 31, 2005 3.50 to 1
June 30, 2005 3.50 to 1
September 30, 2005 3.00 to 1
December 31, 2005 3.00 to 1
March 31, 2006 3.00 to 1
June 30, 2006 3.00 to 1
(r) By amending and restating Section 5.5 (Minimum Interest
Coverage Ratio) of the Credit Agreement in its entirety to read as follows:
The Borrower will maintain an Interest Coverage Ratio, as
determined as of the last day of each Fiscal Quarter set forth below,
for the twelve months ending on such day, of at least the minimum ratio
set forth below opposite such Fiscal Quarter:
Minimum Interest
Fiscal Quarter Ending Coverage Ratio
--------------------- ----------------
March 31, 2005 3.50 to 1
June 30, 2005 3.50 to 1
September 30, 2005 3.50 to 1
December 31, 2005 3.50 to 1
March 31, 2006 3.50 to 1
June 30, 2006 3.50 to 1
(s) By amending and restating Section 5.6 (Minimum Fixed
Charge Coverage Ratio) of the Credit Agreement in its entirety to read as
follows:
The Borrower will maintain a Fixed Charge Coverage Ratio, as
determined as of the last day of each Fiscal Quarter set forth below,
for the twelve months ending on such day, of at least the minimum ratio
set forth below opposite such Fiscal Quarter:
Minimum Interest
Fiscal Quarter Ending Coverage Ratio
--------------------- ----------------
March 31, 2005 1.70 to 1
June 30, 2005 1.70 to 1
September 30, 2005 1.70 to 1
December 31, 2005 1.70 to 1
March 31, 2006 1.70 to 1
June 30, 2006 1.70 to 1
(t) By amending and restating Section 5.7 (Capital
Expenditures) of the Credit Agreement in its entirety to read as follows:
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The Borrower will not permit Capital Expenditures to be made
or incurred during each of the Fiscal Years set forth below to be in
excess of the maximum amount set forth below for such Fiscal Year:
Maximum Capital
Fiscal Year Expenditures
----------- ---------------
2001 $90,000,000
2002 $45,000,000
2003 $25,000,000
2004 $25,000,000
2005 $10,000,000
2006 $10,000,000;
PROVIDED, HOWEVER, that to the extent that actual Capital Expenditures
for any Fiscal Year shall be less than the maximum amount set forth
above for such Fiscal Year (giving effect to any carryover permitted by
this proviso), the difference between said stated maximum amount and
such actual Capital Expenditures shall, in addition, be available for
Capital Expenditures in the next succeeding Fiscal Year and shall
increase the scheduled maximum amount of Capital Expenditures for the
next succeeding Fiscal Year by the amount of such difference.
(u) By inserting the following at the end of Article V (Financial Covenants) of
the Credit Agreement as a new Section 5.8 (Maximum Programming Rights Payments):
Section 5.8. MAXIMUM PROGRAMMING RIGHTS PAYMENTS. The Borrower
will not permit Programming Rights Payments to be made or incurred
during each of the Fiscal Years set forth below to be in excess of the
maximum amount set forth below for such Fiscal Year:
Maximum
Programming Rights
Fiscal Year Payments
----------- ------------------
2002 $135,000,000
2003 $125,000,000
2004 $125,000,000
2005 $125,000,000
2006 $125,000,000;
PROVIDED, HOWEVER, that to the extent the Borrower or any of its
Subsidiaries makes any Investment permitted by SECTION 8.3(E) in any
such Fiscal Year, the maximum Programming Rights Payments permitted for
such Fiscal Year shall be reduced by the amount of such Investment;
PROVIDED, FURTHER, HOWEVER, that to the extent that actual Programming
Rights Payments for any Fiscal Year shall be less than the maximum
amount set forth above for such Fiscal Year (giving effect to any
carryover permitted by this proviso and any reduction pursuant to the
previous proviso), the difference between said stated maximum amount
and such actual Programming Rights Payments shall, in addition, be
available for Programming Rights Payments in the next succeeding Fiscal
Year and
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shall increase the scheduled maximum amount of Programming Rights
Payments for the next succeeding Fiscal Year by the amount of such
difference.
(v) By amending and restating Section 6.4 (Station Appraisals)
of the Credit Agreement in its entirety to read as follows:
The Borrower shall deliver to the Administrative Agent a
Station Appraisal (i) annually, beginning on the first anniversary of
the Effective Date and thereafter by no later than 12 months after the
date when the previous Station Appraisal was provided to the
Administrative Agent and (ii) promptly following any request therefore
by the Requisite Lenders or (in the case of clause (b)) the
Administrative Agent; PROVIDED, that such request pursuant to clause
(ii) for an additional Station Appraisal may be made (a) if a Default
or Event of Default has occurred which is continuing, at any time while
so continuing and (b) once following the consummation of Asset Sales in
respect of Stations having an aggregate Fair Market Value in excess of
$250,000,000 and once following further Asset Sales for each successive
multiple of such amount.
(w) By amending and restating clause (l) of Section 8.1
(Indebtedness) of the Credit Agreement in its entirety to read as follows:
(l) any other Indebtedness not exceeding $2,000,000 in
aggregate.
(x) By amending and restating clause (e) of Section 8.3
(Investments) of the Credit Agreement in its entirety to read as follows:
(e) Investments in Joint Ventures, Unrestricted Subsidiaries
and other Persons; PROVIDED, that (i) the aggregate amount of such
Investments made in cash and the Fair Market Value of all such non-cash
assets so invested shall not exceed $20,000,000, (ii) no Default or
Event of Default has occurred which is continuing or would result from
such Investment, (iii) (x) until delivery of a Compliance Certificate
for the Fiscal Quarter ended March 31, 2005, after giving effect to
such Investment, the Borrower shall have Liquidity of at least
$65,000,000 and (y) after delivery of a Compliance Certificate for the
Fiscal Quarter ended March 31, 2005, the Borrower shall be in
compliance with the financial covenants set forth in Sections 5.3
through 5.8 on an historical pro forma basis for the period of four
Fiscal Quarters ending immediately prior to such Investment (assuming
such Investment occurred on the first day of the applicable period) and
(iv) such Investments are made for the principal purpose of obtaining
Program Rights or reducing the Borrower's Programming Obligations,
other broadcast operating expenses or Leverage Ratio;
(y) By amending and restating Section 8.5 (Restricted
Payments) of the Credit Agreement in its entirety to read as follows:
The Borrower will not, and will not permit any of its
Subsidiaries to, directly or indirectly, declare, order, pay, make or
set apart any sum for any Restricted Payment except:
(a) the redemption of the New Senior Subordinated Notes or any
Preferred Stock from the Net Cash Proceeds arising from Spectrum
License Sales to the extent not required to be applied in mandatory
prepayment of the Obligations pursuant to SECTION 2.7(A)(I);
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(b) the redemption of any Preferred Stock from the Net Cash
Proceeds arising from an Equity Issuance of Common Stock or New
Preferred Stock or the issuance of Common Stock or New Preferred Stock
in exchange for Preferred Stock; and
(c) any Restricted Payment made as a result of any refinancing
of Indebtedness or any exchange or conversion of Preferred Stock into
Indebtedness permitted pursuant to CLAUSES (E), (F) or (G) of SECTION
8.1;
PROVIDED, HOWEVER, that the Restricted Payments described in CLAUSES
(A), (B) and (C) above shall not be permitted if either (A) an Event of
Default or Default shall have occurred and be continuing at the date of
declaration or payment thereof or would result therefrom or (B) such
Restricted Payment is prohibited under the terms of any Indebtedness
(other than the Obligations) of the Borrower or any of its
Subsidiaries; and provided further, that, notwithstanding any other
provision of this Agreement, the Borrower will not, and will not permit
any of its Subsidiaries to, directly or indirectly, permit any
Unrestricted Subsidiary to make any Restricted Payment of the types
described in CLAUSE (B) or CLAUSE (C) of the definition of "RESTRICTED
PAYMENT" in SECTION 1.1.
(z) By amending and restating Section 8.7 (Restrictions on
Fundamental Changes; Permitted Acquisitions) of the Credit Agreement in its
entirety to read as follows:
Except in connection with a Permitted Acquisition or an Investment
pursuant to SECTION 8.3(E), the Borrower will not, and will not permit
any of its Subsidiaries to (a) merge with any Person, (b) consolidate
with any Person, (c) acquire all or substantially all of the Stock or
Stock Equivalents of any Person, (d) acquire all or substantially all
of the assets of any Person or all or substantially all of the assets
constituting the business of a division, branch or other unit operation
of any Person, (e) enter into any joint venture or partnership with any
Person or (f) acquire or create any Subsidiary unless, after giving
effect thereto, the Borrower is in compliance with SECTION 7.12;
PROVIDED, HOWEVER, that, so long as no Default or Event of Default is
outstanding or would result therefrom, (i) the Borrower shall be
permitted to merge with any Subsidiary Guarantor if the Borrower is the
surviving Person, (ii) a Subsidiary Guarantor (other than any License
Subsidiary) shall be permitted to merge with another Subsidiary
Guarantor (other than any License Subsidiary), and (iii) any
Dissolution Subsidiary shall be permitted to be dissolved as
contemplated by SECTION 4.24.
(aa) By amending and restating Section 8.12 (Modification of
Constituent Documents) of the Credit Agreement in its entirety to read as
follows:
The Borrower will not, and will not permit any of its
Subsidiaries to, change its capital structure (including in the terms
of its outstanding Stock) or otherwise amend its Constituent Documents,
except for changes and amendments which (i) are made in connection with
the issuance of New Preferred Stock or Common Stock pursuant to SECTION
8.5(B) or (ii) individually or in the aggregate, do not materially
adversely affect the rights and privileges of the Borrower or any of
its Subsidiaries, or the interests of the Administrative Agent and the
Lenders under the Loan Documents or in the Collateral.
(bb) By amending and restating clause (a) of Section 8.14
(Modification of Subordinated Debt Documents and Preferred Stock Documents) of
the Credit Agreement in its entirety to read as follows:
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(a) Except as provided in SECTION 8.1(E) or in connection with
the redemption or exchange of Preferred Stock pursuant to SECTION
8.5(B), the Borrower will not, and will not permit any of its
Subsidiaries to, change or amend the terms of any Subordinated Debt
Document or Preferred Stock Document (or any indenture or agreement in
connection therewith) if the effect of such amendment is to: (i)
increase the interest rate or dividend on such Subordinated Debt or
Preferred Stock; (ii) change the dates upon which payments of principal
or interest, or the dates of redemption or payment of dividends are due
on such Subordinated Debt or Preferred Stock other than to extend such
dates; (iii) change any default or event of default therein other than
to delete or make less restrictive any default provision therein, or
add any covenant with respect thereto; (iv) change the redemption or
prepayment provisions of such Subordinated Debt or Preferred Stock
other than to extend the dates therefor or to reduce the premiums
payable in connection therewith; or (v) change or amend any other term
if such change or amendment would materially increase the obligations
of the Borrower or such Subsidiary (as the case may be) or confer
additional rights to the holder of such Subordinated Debt or Preferred
Stock in a manner materially adverse to the Borrower, any of its
Subsidiaries, the Administrative Agent or any Lender.
SECTION 3. CONDITIONS PRECEDENT TO THE EFFECTIVENESS OF THIS
AMENDMENT. This Amendment shall become effective as of the date the following
conditions precedent have been satisfied (the "EFFECTIVE DATE"):
(a) CERTAIN DOCUMENTS. The Administrative Agent shall have
received on or before the Effective Date all of the following, all of which
shall be in form and substance satisfactory to the Administrative Agent, in
sufficient executed copies for each of the Lenders:
(i) this Amendment executed by the Borrower;
(ii) the Consent, Agreement and Affirmation of Guaranty,
in the form attached hereto as ANNEX A, executed by
the Subsidiary Guarantors;
(iii) an executed Acknowledgment and Consent, in the form
attached hereto as ANNEX B, from Lenders constituting
the Requisite Lenders; and
(iv) such additional documentation as the Administrative
Agent or the Requisite Lenders may reasonably
require.
(b) AMENDMENT FEE. The Administrative Agent shall have
received from the Borrower, for the ratable benefit of the Lenders party hereto
on or prior to the Effective Date, an amendment fee equal to 0.25% of the sum of
each such Lender's (i) Commitment as of the Effective Date and (ii) Ratable
Portion of the principal amount of Term A Loans and Term B Loans outstanding on
the Effective Date.
(c) STATION APPRAISAL. The Administrative Agent shall have
received a Station Appraisal, dated December 2001, in respect of all Stations
owned by the Loan Parties.
(d) REPRESENTATIONS AND WARRANTIES. Each of the
representations and warranties made by the Borrower or any Guarantor in or
pursuant to the Credit Agreement and the other Loan Documents to which the
Borrower or any Guarantor is a party or by which the Borrower, or any Guarantor
is bound, shall be true and correct in all material respects, after giving
effect to the terms of this Amendment, on and as of the Effective Date (except
to the extent such representations and warranties in any such Loan Document
expressly relate to an earlier date).
11
(e) NO EVENTS OF DEFAULT. No Event of Default or Default shall
have occurred and be continuing on the Effective Date after giving effect to the
terms of this Amendment.
SECTION 4. REPRESENTATIONS AND WARRANTIES. The Borrower hereby
represents and warrants to the Administrative Agent and the Lenders that as of
the date hereof, (a) no Event of Default or Default under the Credit Agreement
shall have occurred and be continuing and (b) all of the representations and
warranties of the Loan Parties contained in Article IV of the Credit Agreement
and in any other Loan Document continue to be true and correct in all material
respects, as though made on and as of such date (except to the extent such
representations and warranties in any such Loan Document expressly relate to an
earlier date).
SECTION 5. COSTS AND EXPENSES. The Borrower agrees to pay on
demand in accordance with the terms of Section 13.3 of the Credit Agreement all
costs and expenses of the Administrative Agent in connection with the
preparation, reproduction, execution and delivery of this Amendment and all
other Loan Documents entered into in connection herewith, including the
reasonable fees, expenses and disbursements of Weil, Gotshal & Xxxxxx LLP,
counsel for the Administrative Agent with respect thereto.
SECTION 6. REFERENCE TO AND EFFECT ON THE LOAN DOCUMENTS.
(a) Upon the effectiveness of this Amendment, on and after the
Effective Date, each reference in the Credit Agreement to "THIS AGREEMENT",
"HEREUNDER", "HEREOF" or words of like import, and each such reference in each
other Loan Document, shall mean and be a reference to the Credit Agreement as
amended hereby.
(b) Except as specifically amended hereby, all of the terms of
the Credit Agreement and all other Loan Documents shall remain unchanged and in
full force and effect.
(c) The execution, delivery and effectiveness of this
Amendment shall not, except as expressly provided herein, operate as an
amendment or waiver of any right, power or remedy of any Lender or the
Administrative Agent under the Credit Agreement or any of the Loan Documents,
nor constitute an amendment or waiver of any provision of the Credit Agreement
or any of the Loan Documents.
(d) This Amendment is a Loan Document.
SECTION 7. TITLES. The Section titles contained in this
Amendment are and shall be without substantive meaning or content of any kind
whatsoever and are not a part of the agreement between the parties hereto.
SECTION 8. EXECUTION IN COUNTERPARTS. This Amendment may be
executed and delivered 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 and all of which taken together shall constitute one
and the same original agreement.
SECTION 9. NOTICES. All communications and notices to the
Administrative Agent hereunder shall be given as provided in the Credit
Agreement.
SECTION 10. SEVERABILITY. If any term or provision set forth
in this Amendment shall be invalid or unenforceable, the remainder of this
Amendment, or the application
12
of such term or provision to persons or circumstances, other than those to which
it is held unenforceable, shall not in any way be affected or impaired thereby.
SECTION 11. SUCCESSORS. The terms of this Amendment shall be
binding upon, and shall inure to the benefit of, the parties hereto and their
respective successors or assigns.
SECTION 12. GOVERNING LAW. This Amendment shall be
interpreted, and the rights and liabilities of the parties determined, in
accordance with the internal law of the State of New York.
[SIGNATURE PAGE FOLLOWS]
13
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be executed by their respective officers thereunto duly authorized,
as of the date first above written.
XXXXXX COMMUNICATIONS CORPORATION,
as Borrower
By: /s/ Xxxxxx Xxxxxxxx, Xx.
-------------------------------------
Name: Xxxxxx Xxxxxxxx, Xx.
Title: Senior Vice President, Chief
Financial Officer and
Treasurer
CITICORP USA, INC.,
as Administrative Agent
By:
-------------------------------------
Name:
Title:
14
ANNEX A
CONSENT, AGREEMENT AND AFFIRMATION OF GUARANTY
Each of the undersigned Subsidiary Guarantors hereby consents
to the terms of the foregoing Amendment in its capacity as a guarantor under the
Guaranty and agrees that the terms of this Amendment shall not affect in any way
its obligations and liabilities under its guaranty, all of which obligations and
liabilities shall remain in full force and effect and each of which is hereby
reaffirmed.
On behalf of each of the Subsidiary
Guarantors under the Loan Documents
By: /s/ Xxxxxx Xxxxxxxx, Xx.
-------------------------------------
Name: Xxxxxx Xxxxxxxx, Xx.
Title: Vice President and Treasurer
and, with respect to America
51, L.P., Vice President and
Treasurer of its General and
Limited Partners
ANNEX B
ACKNOWLEDGEMENT AND CONSENT
Xxxxxx Communications Corporation
000 Xxxxxxxxxx Xxxx Xxxx
Xxxx Xxxx Xxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxxx, Xx., Chief Financial Officer,
with a copy to Xxxxxxx X. Xxxxxxxx, Esq., Chief Legal Officer
Telecopy no: (000) 000-0000
Citicorp USA, Inc.
000 Xxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxx X. Judge
Telecopy no: (000) 000-0000
RE: XXXXXX COMMUNICATIONS CORPORATION
Ladies and Gentlemen:
Reference is made to Credit Agreement, dated as of July 12,
2001, among Xxxxxx Communications Corporation, a Delaware corporation (the
"BORROWER"), the Lenders (as defined in the Credit Agreement), Citicorp USA,
Inc., as administrative agent for the Lenders and as collateral agent for the
Secured Parties under the Collateral Documents (in each such capacity, the
"ADMINISTRATIVE AGENT"), Union Bank of California, N.A., as syndication agent
for the Lenders, and CIBC, Inc. and General Electric Capital Corporation, each
as co-documentation agents for the Lenders, as amended by Amendment Xx. 0, xxxxx
xx xx Xxxxxxx 0, 0000 (xx amended, the "CREDIT AGREEMENT"). Unless otherwise
defined herein, capitalized terms used herein and defined in the Credit
Agreement are used herein as therein defined.
The Borrower has requested that the Lenders consent to an
amendment to the Credit Agreement on the terms described in Amendment No. 2 to
Credit Agreement (the "AMENDMENT"), a form of which is attached as EXHIBIT A
hereto.
Pursuant to Section 11.1 of the Credit Agreement, the
undersigned Lender hereby consents to the amendments of, and modifications to,
the Credit Agreement contained in the Amendment and authorizes the
Administrative Agent to execute the Amendment on its behalf.
Very truly yours,
-----------------------------------------
(NAME OF LENDER)
By:
-------------------------------------
Name:
Title:
Dated as of June __, 2002
