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SECOND AMENDMENT
Dated as of May 15, 2002
TO
THE AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT
Dated as of March 27, 2001
AND LOAN DOCUMENTS
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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SECOND AMENDMENT
This SECOND AMENDMENT is entered into as of May 15, 2002 (this "Amendment")
by and among XXXXXXXXXX COMMUNICATIONS COMPANY, a Delaware corporation (the
"Borrower"), the Banks parties hereto (the "Banks"), FLEET NATIONAL BANK, as
Agent (the "Agent"), DEUTSCHE BANK SECURITIES INC. (F/K/A DEUTSCHE BANC ALEX.
XXXXX INC.), as Documentation Agent (the "Documentation 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"), XXXXXXXXXX BIRMINGHAM CORPORATION ("ABC") and WCIV, LLC. ("WCIV";
and, together with Allfinco, KATV, KTUL, WSET, ATP, TV AL, HTI and ABC, 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: (a) 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, and the Letter Waiver, dated as
of March 4, 2002, the "Credit Agreement"), among the Borrower, the Banks, the
Agent and the Documentation Agent; (b) Unlimited Guaranty, dated as of March 27,
2001 (the "Guaranty"), made by the Subsidiary Guarantors in favor of the Agent;
and (c) the Amended and Restated Pledge Agreement, dated as of March 27, 2001
(the "Pledge Agreement"), made by the Borrower, Xxxxxxxxxx Group and the
Subsidiary Guarantors (in such capacity, collectively, the "Pledgors") in favor
of the Agent.
Recitals
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WHEREAS, the Borrower, Xxxxxxxxxx Group and the Subsidiary Guarantors have
requested that the Credit Agreement and other Loan Documents be amended, inter
alia, to increase the Total Commitments of the Banks from $50,000,000 to
$70,000,000;
WHEREAS, the Banks, the Documentation Agent and the Agent are willing, on
the terms and conditions set forth herein, to amend the Credit Agreement and
other Loan Documents in order to permit the Borrower to borrow up to $70,000,000
on the terms and conditions set forth in the Credit Agreement as amended hereby;
NOW, THEREFORE, subject to the satisfaction of the conditions to
effectiveness specified in Section 6, the parties hereto hereby agree as
follows:
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) Schedule 1.1 to the Credit Agreement is hereby amended and
restated in its entirety to read as set forth in Annex I to this Amendment.
(b) Section 1.1 of the Credit Agreement is hereby amended to add
thereto in alphabetical order the following new definition:
"Collateral. The Pledged Collateral, as defined in the Pledge
Agreement, and any of it."
(c) Section 1.1 of the Credit Agreement is hereby further amended to
amend and restate in their entirety the definitions of "Guaranty Agreement" and
"Pledge Agreement" to read, respectively, as follows:
"Guaranty Agreement. The Guaranty Agreement substantially in the
form of Exhibit H attached hereto, dated as of the Closing Date,
executed and delivered by the Subsidiaries, and any other guaranty
executed and delivered by any Subsidiary, in each case, as amended,
supplemented and otherwise modified from time to time in accordance
with its terms and the terms hereof, including, without limitation,
Section 6.18 hereof."
"Pledge Agreement. The Amended and Restated Pledge Agreement,
substantially in the form of Exhibit D attached hereto, dated as of
the Closing Date, executed and delivered by Xxxxxxxxxx Group, Inc.,
the Borrower and certain of its Subsidiaries, as amended, supplemented
and otherwise modified from time to time in accordance with its terms
and the terms hereof, including, without limitation, Section 6.18
hereof."
Section 3. Amendment to Pledge Agreement.
(a) The third paragraph of the Recitals to the Pledge Agreement is
hereby amended and restated in its entirety to read as set forth below:
"WHEREAS, the Borrower has entered into an Amended and Restated
Revolving Credit Agreement dated as of March 27, 2001 (as amended,
restated or otherwise modified in accordance with its terms from time
to time, the "Credit Agreement"), by and among the Borrower, the
financial institutions which are now, or hereafter become, parties
thereto as lenders (the "Banks"), and FLEET NATIONAL BANK ("Fleet"),
as agent for the Banks, pursuant to which the Banks have extended
commitments to make Loans to the Borrower; and"
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(b) Section 2.4 of the Pledge Agreement is hereby amended to add at
the end of such Section, the following new sentence:
"Each Pledgor hereby authorizes the Secured Party to file one or more
financing or continuation statements, and amendments thereto, relating
to all or any part of the Pledged Collateral of such Pledgor without
the signature of such Pledgor where permitted by law."
Section 4. Amendment to Guaranty. The first paragraph of the Recitals to
the Guaranty is hereby amended and restated in its entirety to read as set forth
below:
"Pursuant to that certain AMENDED AND RESTATED REVOLVING CREDIT
AGREEMENT dated as of March 27, 2001 (as amended, restated or
otherwise modified in accordance with its terms from time to time, the
"Credit Agreement"), by and among Xxxxxxxxxx Communications Company
(the "Borrower"), the financial institutions party thereto (the
"Banks"), and the Agent, the Banks have agreed to extend credit
facilities to the Borrower. The Credit Agreement provides for, among
other things, a guaranty to be executed by the Guarantors."
Section 5. Consents.
(a) Each of the Pledgors 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 6. Effectiveness; Conditions to Effectiveness. This Amendment shall
become effective 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 executed by each Loan Party, each of the Banks
and the Documentation Agent.
(b) Corporate Action. All corporate action necessary for the valid
execution, delivery and performance by each Loan Party of this Amendment and the
other Loan Documents, as amended hereby, to which it is a party shall have been
duly and effectively taken, and evidence thereof satisfactory to the Banks shall
have been provided to each of the Banks.
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(c) Notes. Each of the promissory notes required to be issued
pursuant to Section 2.4 of the Credit Agreement, as amended hereby, and
evidencing the Loans in substantially the form of Exhibit A hereto shall have
been duly executed and delivered by the Borrower to the Agent on behalf of the
Banks.
(d) Opinion of Borrower's Legal Counsel. Each of the Banks and the
Agent shall have received (a) from Fulbright & Xxxxxxxx L.L.P., legal counsel to
the Loan Parties, a favorable opinion addressed to the Banks and the Agent dated
as of the Effective Date, in form and substance acceptable to the Agent, and (b)
from Xxxxxx X. Xxxxx, Esq., FCC counsel to the Borrower, a favorable opinion
addressed to the Banks and the Agent, dated as of the Effective Date, in form
and substance acceptable to the Agent.
(e) Certified Copies of Charter Documents. Each of the Banks shall
have received from each Loan Party a copy of the charter or other organizational
documents and by-laws of such Loan Party certified by the Secretary of such Loan
Party to be true and complete as of the Effective Date, or, in lieu thereof, a
certification by the Secretary of such Loan Party that there has been no
amendment or other modification to the Loan Party's organizational documents or
by-laws as delivered on the Closing Date.
(f) Incumbency Certificate. Each of the Banks shall have received
from each Loan Party an incumbency certificate, dated as of the Effective Date,
signed by a duly authorized officer of such Loan Party, and giving the name and
bearing a specimen signature of each individual who shall be authorized: (i) to
sign this Amendment in the name and on behalf of such Loan Party, (ii) in the
case of the Borrower, to make application for the Loans, and (iii) to give
notices and to take other action on its behalf under the Loan Documents, or, in
lieu thereof, a certificate by the Secretary of such Loan Party that there has
been no amendment or other modification to the Loan Party's incumbency
certificate as delivered on the Closing Date.
(g) Good Standing Certificates. The Agent shall have received, with a
copy for each Bank, a certificate from the Secretary of State, or other
appropriate authority of such jurisdiction, evidencing the good standing of each
Loan Party in the jurisdiction of its incorporation.
(h) Arrangement Fee. The Borrower shall pay to the Agent, for the
accounts of the Banks, in accordance with their respective Commitment
Percentages, a one-time Arrangement Fee in the amount of $200,000.
Section 7. Representations and Warranties; No Default. The Borrower hereby
confirms to the Agent, the Banks and the Documentation Agent, that, after giving
effect to this Amendment, 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.
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Section 8. Reference to and Effect on the Loan Documents.
(a) On and after the effectiveness of this Amendment, 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, (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 (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.
(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 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 9. Fees and Expenses. The Borrower agrees to pay on demand all the
Agent's reasonable expenses in preparing, executing and delivering this
Amendment, 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 10. Execution in 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 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 by telecopier shall be effective as delivery of a
manually executed counterpart of a signature page to this Amendment.
Section 11. Governing Law. This Amendment 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]
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IN WITNESS WHEREOF, the Borrower, Xxxxxxxxxx Group and the Subsidiary
Guarantors, the Banks, the Agent and the Documentation Agent have caused this
Amendment 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
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KTUL, LLC, as Pledgor and Guarantor
By /s/ Xxxxxxx X. Xxxxxx
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Name: Xxxxxxx X. Xxxxxx
Title: Vice President
WSET, INCORPORATED, as Pledgor and
Guarantor
By /s/ Xxxxxxx X. Xxxxxx
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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
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Name: Xxxxxxx X. Xxxxxx
Title: Vice President
HARRISBURG TELEVISION, INC., as Pledgor
and Guarantor
By /s/ Xxxxxxx X. Xxxxxx
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Name: Xxxxxxx X. Xxxxxx
Title: Vice President
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XXXXXXXXXX BIRMINGHAM CORPORATION, as
Pledgor and Guarantor
By /s/ Xxxxxx X. Xxxxxxxxxx
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Name: Xxxxxx X. Xxxxxxxxxx
Title: President
WCIV, LLC, as Pledgor and Guarantor
By /s/ Xxxxxxx X. Xxxxxx
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Name: Xxxxxxx X. Xxxxxx
Title: Vice President
FLEET NATIONAL BANK, individually and as
Agent
By /s/ Xxxxx Xxx
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Name: Xxxxx Xxx
Title: Assistant Vice President
DEUTSCHE BANK TRUST COMPANY AMERICAS
By /s/ Xxxxxxx Xxxxxxx
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Name: Xxxxxxx Xxxxxxx
Title: Director
DEUTSCHE BANK SECURITIES INC., as
Documentation Agent
By /s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
Title:
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ANNEX I
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Schedule 1.1
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Commitments
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Percentage of
Bank Commitment Commitment
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Fleet National Bank $42,000,000.00 60%
Deutsche Bank Trust Company $28,000,000.00 40%
Americas
Totals: $70,000,000.00 100%
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EXHIBIT A
Form of Notes to be Issued on the Effective Date
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