EXECUTION COPY
AMENDMENT NO. 1 TO LOAN DOCUMENTS
AMENDMENT NO. 1 TO LOAN DOCUMENTS executed on February 5, 2009
(but effective as hereinafter provided) (the "Amendment") among XXXXXXXXXX
COMMUNICATIONS COMPANY, a Delaware corporation (the "Borrower"), the
subsidiaries of the Borrower signatories hereto (the "Guarantors"), the banks,
financial institutions and other institutional lenders parties to the Credit
Agreement referred to below (collectively, the "Banks"), BANK OF AMERICA, N.A.,
as administrative agent (the "Agent") for the Banks, and DEUTSCHE BANK
SECURITIES, INC., as syndication agent (the "Syndication Agent").
PRELIMINARY STATEMENTS:
(1) The Borrower, the Banks, the Agent and the Syndication
Agent have entered into a Credit Agreement dated as of August 23, 2005 (the
"Credit Agreement"). The Guarantors have entered into an Unlimited Guaranty in
favor of the Agent and the Banks dated as of August 23, 2005 (the "Guaranty
Agreement"). The Borrower, certain of the Guarantors and the Agent have entered
into a Pledge Agreement dated as of August 23, 2005 (the "Pledge Agreement").
The Agent and certain of the Guarantors have entered into a Collateral
Assignment of Proceeds and Security Agreement dated as of August 23, 2005 (the
"Collateral Assignment"). Capitalized terms not otherwise defined in this
Amendment have the same meanings as specified in the Credit Agreement.
(2) The Credit Agreement, directly or indirectly through a
series of credit agreements, restated, amended, refinanced, supplemented or
otherwise modified or replaced the senior secured revolving credit facility
dated as of March 27, 2001, among the Borrower, certain subsidiaries of
Borrower, the financial institutions party thereto, Fleet National Bank, as
agent, and Deutsche Bank Securities Inc.
(3) The Borrower and the Majority Banks have agreed to amend
the Credit Agreement, the Guaranty Agreement, the Pledge Agreement and the
Collateral Assignment as hereinafter set forth.
SECTION 1. Amendments to Credit Agreement.
(a) Section 1.1 of the Credit Agreement is hereby amended as
follows:
i. The definition of "Applicable Margins and Commitment
Fee Rate" in Section 1.1 of the Credit Agreement is hereby amended and
restated in full to read as follows:
"Applicable Margins and Commitment Fee Rate. With
respect to any fiscal quarter of the Borrower, the
Eurodollar Applicable Margin, the Alternate Base Rate
Applicable Margin and the Commitment Fee Rate shall be the
applicable percentages set forth below opposite the Total
Leverage Ratio (as defined below) determined for the most
recently ended fiscal quarter for which the Borrower has
delivered financial statements pursuant to ss.6.4(a) or (b),
commencing with the first fiscal quarter to end after the
Amendment No. 1 Execution Date:
Alternate
Total Eurodollar Base Rate Commitment
Leverage Ratio Applicable Applicable Fee
(as defined below) Margin Margin Rate
------------------ ---------- ---------- ----------
Greater than or equal 3.50% 2.25% 0.500%
to 6.5:1.0
Less than 6.5:1.00 but 3.25% 2.00% 0.500%
greater than or equal
to 5.5:1.0
Less than 5.5:1.0 but 3.00% 1.75% 0.375%
greater than or equal
to 4.5:1.0
Less than 4.5:1.0 2.75% 1.50% 0.375%
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 Eurodollar Applicable Margin
with respect to all Eurodollar Rate Loans shall be 3.50%, the
Alternate Base Rate Applicable Margin with respect to all Base
Rate Loans shall be 2.25% and the Commitment Fee Rate shall be
0.500% 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. Notwithstanding anything
provided herein, for purposes of the determination of the
Applicable Margins and Commitment Fee Rate, "Total Leverage
Ratio" is defined as the ratio of (a) Total Debt as of the
ending date of the fiscal quarter for which the Borrower has
delivered financial statements pursuant to ss.6.4(a) or (b),
to (b) Consolidated EBITDA for the period of four (4)
consecutive fiscal quarters most recently ended for which the
Borrower has delivered financial statements pursuant to
ss.6.4(a) or (b)."
ii. The definition of "Change of Control" in Section 1.1 of
the Credit Agreement is hereby amended by deleting the period at the
end of clause (d) thereof and adding the following clause (e) at the
end thereof "; or (e) the Principals cease to beneficially own and
control at least 50% on a fully diluted basis of the voting and
economic interests in the Borrower."
iii. The definition of "Majority Banks" in Section 1.1 of
the Credit Agreement is hereby amended and restated in full to read as
follows:
"Majority Banks. As of any date of determination, (a)
at any time there are less than three (3) Banks, Banks
having 100% of the Total Commitment or, if
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the Commitments of each Bank to make Loans have been
terminated pursuant to ss. 11.1, Banks holding 100% of the
outstanding principal amount of the Notes and (b) at any
time there are three (3) or more Banks, a minimum of two (2)
Banks having more than 66-2/3% of the Total Commitment or,
if the Commitments of each Bank to make Loans have been
terminated pursuant to ss. 11.1, a minimum of two (2) Banks
holding in the aggregate more than 66-2/3% of the
outstanding principal amount of the Notes; provided, that
(i) the Commitment of, and the portion of the outstanding
principal amount of the Notes held or deemed held by, any
Defaulting Bank shall be excluded for purposes of making a
determination of Majority Banks and (ii) for purposes
hereof, a Bank and its Affiliates shall be considered as a
single Bank."
iv. The definition of "Obligations" in Section 1.1 of the
Credit Agreement is hereby amended by adding the following sentence at
the end thereof:
"For the avoidance of doubt, Obligations shall include
any advances to, and debts, liabilities, obligations and
covenants of, any Loan Party arising under any Secured Cash
Management Agreement or any interest rate protection
agreement entered into by a Bank or an Affiliate of a Bank."
v. The following definitions are hereby added to Section
1.1 of the Credit Agreement in the proper alphabetical order:
"Amendment No. 1. Amendment No. 1 to Loan Documents,
dated as of the Amendment No. 1 Effective Date, among the
Borrower, the Guarantors, the Banks, the Agent and the
Syndication Agent."
"Amendment No. 1 Effective Date. As of December 31,
2008."
"Amendment No. 1 Execution Date. February 5, 2009."
"Cash Equivalents. Any of the following, to the extent
owned by the Borrower or any of its Subsidiaries:
(i) readily marketable obligations issued or
directly and fully guaranteed or insured by the United
States of America or any agency or instrumentality
thereof having maturities of not more than 360 days
from the date of acquisition thereof; provided that the
full faith and credit of the United States of America
is pledged in support thereof;
(ii) time deposits with, or insured certificates
of deposit or bankers' acceptances of, any commercial
bank that (a) (A) is a Bank or (B) is organized under
the laws of the United States of America, any state
thereof or the District of Columbia or is the principal
banking subsidiary of a bank holding company organized
under the laws of the United States of America, any
state thereof or the District of Columbia, and is a
member of the Federal Reserve System, (b) issues (or
the parent of which issues)
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commercial paper rated as described in clause (iii) of
this definition and (c) has combined capital and
surplus of at least $1,000,000,000, in each case with
maturities of not more than 180 days from the date of
acquisition thereof;
(iii) commercial paper issued by any Person
organized under the laws of any state of the United
States of America and rated at least "Prime-1" (or the
then equivalent grade) by Xxxxx'x or at least "A-1" (or
the then equivalent grade) by S&P, in each case with
maturities of not more than 180 days from the date of
acquisition thereof; and
(iv) Investments, classified in accordance with
GAAP as current assets of the Borrower or any of its
Subsidiaries, in money market investment programs
registered under the Investment Company Act of 1940,
which are administered by financial institutions that
have the highest rating obtainable from either Xxxxx'x
or S&P, and the portfolios of which are limited solely
to Investments of the character, quality and maturity
described in clauses (i), (ii) and (iii) of this
definition."
"Cash Management Agreement. Any agreement to provide
cash management services, including treasury, depository,
overdraft, credit or debit card, electronic funds transfer and
other cash management arrangements."
"Cash Management Bank. Any Person that is a Bank or an
Affiliate of a Bank, in its capacity as a party to such Cash
Management Agreement."
"Secured Cash Management Agreement. Any Cash Management
Agreement that is entered into by and between any Loan Party
and any Cash Management Bank."
"Secured Interest Rate Protection Agreement. Any
interest rate protection agreement entered into from time to
time by a Bank or any of its Affiliates with a Loan Party."
"Secured Parties. Agent, the Banks, the Cash Management
Banks and any Bank or Affiliate of a Bank that has entered
into an interest rate protection agreement with any Loan
Party."
"Total Leverage Ratio. (i) For purposes of the
determination of the Applicable Margins and Commitment Fee
Rate, see the definition of Applicable Margins and
Commitment Fee Rate, and (ii) otherwise see ss. 8.2."
"WCIV LLC. WCIV LLC, a Delaware limited liability
company."
(b) Section 2.3 of the Credit Agreement is hereby amended by
adding thereto the following new clause (c):
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(c) "Scheduled Reduction of Total Commitments.
On each date set forth below, the Commitment of Bank of
America and its Affiliates shall be reduced, on a pro
rata basis as between Bank of America and such
Affiliates, by the amount set forth opposite such date
below:
---------------------- --------------------------
Date Amount of Reduction
---------------------- --------------------------
December 31, 2009 $2,500,000.00"
---------------------- --------------------------
(c) Section 2.9 of the Credit Agreement is hereby amended by
adding the following sentence at the end thereof:
"Notwithstanding the foregoing, if any repayment is required
as a result of any scheduled reduction of Commitments hereunder , such repayment
will be made in accordance with Section 2.3(c) hereof and such repayment will be
paid on a pro rata basis to Bank of America and to its Affiliates in accordance
with the reduction of each of their Commitments."
(d) Section 6.11 of the Credit Agreement is hereby amended and
restated in full to read as follows:
"Section 6.11 Further Assurances. The Borrower will, promptly
upon request by the Agent, or any Bank through the Agent, (a) correct any
material defect or error that may be discovered in any Loan Document or in the
execution, acknowledgment, filing or recordation thereof, and (b) do, execute,
acknowledge, deliver, record, re-record, file, re-file, register and re-register
any and all such further acts, deeds, certificates, assurances and other
instruments as the Agent, or any Bank through the Agent, may reasonably require
from time to time in order to (i) carry out more effectively the purposes of the
Loan Documents, (ii) to the fullest extent permitted by applicable law, subject
any Loan Party's or any of its Subsidiaries' properties, assets, rights or
interests to the Liens now or hereafter intended to be covered by any of the
Security Documents, (iii) perfect and maintain the validity, effectiveness and
priority of any of the Security Documents in accordance with its terms and any
of the Liens intended to be created thereunder and (iv) assure, convey, grant,
assign, transfer, preserve, protect and confirm more effectively unto the
Secured Parties the rights granted or now or hereafter intended to be granted to
the Secured Parties under any Loan Document or under any other instrument
executed in connection with any Loan Document to which any Loan Party or any of
its Subsidiaries is or is to be a party, and cause each of its Subsidiaries to
do so."
(e) Section 7.2(vii) of the Credit Agreement is hereby amended to
change the reference to "Pledge Agreement" therein to "Security Documents."
(f) Section 7.4(d) of the Credit Agreement is hereby amended and
restated in full to read as follows:
"(d) payments by the Borrower of cash dividends on outstanding
shares of its capital stock or loans or advances to Affiliates (other than
Subsidiaries of the Borrower), and payments by any Majority-Owned Subsidiary of
cash dividends on outstanding shares of its capital stock to any Person other
than the Borrower or a wholly-owned Subsidiary of the
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Borrower; provided, that no Default or Event of Default is continuing on the
date of any such payment or would result therefrom after giving pro forma effect
to such payment, any related transactions and any transactions, if any,
consummated pursuant to xx.xx. 7.4(g) and 7.5(g), as if they had occurred as of
the end of the last day of the most recent fiscal quarter for which the Borrower
has delivered a Compliance Certificate (the "Pro Forma Test Date"); and,
provided, further, that (i) the Total Leverage Ratio, after giving pro forma
effect to such payments and transactions as if they had occurred as of the Pro
Forma Test Date, will not exceed 6.75:1.0, (ii) the Senior Leverage Ratio, after
giving pro forma effect to such payments and transactions as if they had
occurred as of the Pro Forma Test Date, will not exceed 1.0:1.0 and (iii) the
Agent and the Banks shall have received, prior to the making of such Restricted
Payment, a statement certified by the principal financial officer of the
Borrower and setting forth in reasonable detail computations evidencing
compliance, on a pro forma basis, with the covenants contained in subclauses (i)
and (ii) above as at the Pro Forma Test Date;"
(g) Section 7.4 of the Credit Agreement is hereby amended by
replacing the period at the end of Section 7.4(e) thereof with a semicolon and
by adding new clauses (f) and (g) to read in full as follows:
"(f) voluntary redemptions or repurchases by the Borrower of
ACC 7 3/4% Senior Subordinated Notes; provided, that (i) the Total Leverage
Ratio, after giving pro forma effect to such payment, any related transactions
and any transaction, if any, consummated pursuant to xx.xx. 7.4(d) and 7.5(g),
as if they had occurred as of the Pro Forma Test Date (as defined above), will
not exceed 6.75:1.0, (ii) the Senior Leverage Ratio, after giving pro forma
effect to such payments and transactions as if they had occurred as of the Pro
Forma Test Date, will not exceed 1.0:1.0 and (iii) the Agent and the Banks shall
have received, prior to the making of such Restricted Payment, a statement
certified by the principal financial officer of the Borrower and setting forth
in reasonable detail computations evidencing compliance on a pro forma basis,
with the covenants contained in subclauses (i) and (ii) above as at the Pro
Forma Test Date (as defined above); and
(g) to the extent permitted by Section 7.5(g), the disposition
of all of the assets or equity interests in WCIV LLC."
(h) Section 7.5 of the Credit Agreement is hereby amended by
deleting the word "and" at the end of clause (e) thereof, replacing the period
at the end of clause (f) thereof with the phrase "; and" and adding a new clause
(g) to read in full as follows:
"(g) the disposition (whether by sale, distribution, spin-off
or contribution) of all of the assets of or equity interests in WCIV LLC;
provided, that (i) no Default or Event of Default is continuing on the date of
such disposition or after giving effect thereto as if it had occurred as of the
end of the last day of the most recent fiscal quarter for which the Borrower has
delivered a Compliance Certificate (the "Pro Forma Test Date") and (ii) the
Agent and the Banks shall have received, at least five (5) Business Days prior
the making of such disposition, a statement certified by the principal financial
officer of the Borrower and setting forth in reasonable detail computations
evidencing compliance, on a pro forma basis, after giving effect to such
disposition and any transaction, if any, consummated pursuant to xx.xx. 7.4(d)
and 7.4(g), with the covenants contained in Section 8.2 and 8.3 as at the Pro
Forma Test Date."
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(i) Section 7.11 of the Credit Agreement is hereby amended and
restated in full to read as follows:
"Section 7.11 No Amendments, Etc. The Borrower will not, and
will not permit any of its Subsidiaries to, enter into or permit any amendment,
supplement or other modification of any charter document or by-laws of the
Borrower or any of its Subsidiaries or any Subordinated Debt Document that, in
any such case, would adversely affect the Banks; provided, however, that TV
Alabama, Inc. and Harrisburg Television, Inc. may each amend their Certificates
of Incorporation in the manner set forth as Exhibits B and C to Amendment No.
1."
(j) Section 7 of the Credit Agreement is hereby amended by adding
a new Section 7.13 and a new Section 7.14 immediately following Section 7.12, to
read in full as follows:
"Section 7.13 Cash Management. The amount of cash and Cash
Equivalents held by the Borrower and its Subsidiaries shall not exceed
$10,000,000 in the aggregate on more than four Business Days in any consecutive
five Business Day period; provided, however, that such restriction shall not
apply at any time that no Loans are outstanding.
Section 7.14 Burdensome Agreements. The Borrower will not and
will not permit any of its Subsidiaries to enter into or permit to exist any
contractual obligation (other than this Agreement, any other Loan Document and
the Subordinated Debt Documents) that (i) limits the ability of the Borrower or
any Subsidiary to create, incur, assume or suffer to exist a lien or security
interest on property of such Person; provided, however, that this clause (i)
shall not prohibit any negative pledge incurred or provided in favor of any
holder or beneficiary of a Permitted Lien solely to the extent any such negative
pledge relates to the property the subject of such Permitted Lien; or (ii)
requires the grant of a Lien to secure an obligation of such Person if a Lien is
granted to secure another obligation of such Person."
(k) Section 8.2 of the Credit Agreement is hereby amended and
restated in full to read as follows:
"Section 8.2 Total Leverage Ratio. The Borrower will not
permit the ratio of (a) Total Debt as of any date of determination, less, solely
to the extent that no Loans are outstanding as of such date, the aggregate
amount of unrestricted cash on hand and Cash Equivalents as of such date to (b)
Consolidated EBITDA for the period of 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), or following the Closing Date, a
Compliance Certificate (hereinafter, the "Total Leverage Ratio"), to exceed the
ratio set forth below opposite the period in which the date of determination
falls:
--------------------------------------------- -----------------------------
Date During Period Maximum Total Leverage Ratio
--------------------------------------------- -----------------------------
--------------------------------------------- -----------------------------
Closing Date through December 30, 2008 7.25:1.0
--------------------------------------------- -----------------------------
December 31, 2008 through March 30, 2009 8.00:1.0
--------------------------------------------- -----------------------------
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March 31, 2009 through September 29, 2009 8.25:1.0
--------------------------------------------- -----------------------------
September 30, 2009 through December 30, 2009 8.00:1.00
--------------------------------------------- -----------------------------
December 31, 2009 through March 30, 2010 7.75:1.0
--------------------------------------------- -----------------------------
March 31, 2010 through September 29, 2010 7.50:1.0
--------------------------------------------- -----------------------------
September 30, 2010 through March 30, 2011 7.25:1.0
--------------------------------------------- -----------------------------
March 31, 2011 through June 29, 2011 7.00:1.0
--------------------------------------------- -----------------------------
June 30, 2011 and thereafter 6.75:1.0
--------------------------------------------- -----------------------------
(l) Section 8.3 of the Credit Agreement is hereby amended and
restated in full 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), or following the Closing Date, a Compliance Certificate (the "Senior
Leverage Ratio"), to exceed, (i) for the period from the Closing Date through
December 30, 2008, 2.50:1.0 and (ii) on December 31, 2008 and thereafter,
1.25:1.0."
(m) Section 11.1(c) of the Credit Agreement is hereby amended and
restated in full to read as follows:
"(c) the Borrower or any Subsidiary of the Borrower shall fail
to (i) comply with any of the covenants contained in Section 6.5 (with respect
to the first sentence thereof only), 6.12, 6.15, 6.17 (provided, however, that
to the extent compliance with such covenant is stated to be subject to the
satisfaction of the Agent, non-compliance with such covenant shall not
constitute an Event of Default solely to the extent such non-compliance would be
the result of the absence of the Agent's satisfaction and only until three (3)
Business Days after the Borrower or such Subsidiary has received notice from the
Agent of such non-compliance), or 6.18, Section 7 or Section 8, (ii) comply with
any covenants contained in this Credit Agreement (other than those enumerated in
subclause (i) above) or in any of the other Loan Documents (other than payment
covenants described in paragraphs (a) and (b) above) for twenty (20) days after
written notice of such failure has been given to the Borrower by the Agent or
any Bank or (iii) comply with any covenant or agreement set forth in any
Subordinated Debt Document after the period of grace applicable thereto;"
(n) Section 11.1(e) of the Credit Agreement is hereby amended and
restated in full to read as follows:
"(e) the Borrower or any of its Subsidiaries (i) fails to make
any payment when due (whether by scheduled maturity, required prepayment,
acceleration, demand, or otherwise) in respect of any Indebtedness or any
guaranty (other than Indebtedness hereunder) having an
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aggregate principal amount (including undrawn committed or available amounts and
including amounts owing to all creditors under any combined or syndicated credit
arrangement) of more than $5,000,000, or (ii) fails to observe or perform any
other agreement or condition relating to any such Indebtedness or guaranty or
contained in any instrument or agreement evidencing, securing or relating
thereto, or any other event occurs, the effect of which is to cause, or to
permit the holder or holders of such Indebtedness or the beneficiary or
beneficiaries of such guaranty (or a trustee or agent on behalf of such holder
or holders or beneficiary or beneficiaries) to cause, with the giving of notice
if required, such Indebtedness to be demanded or to become due or to be
repurchased, prepaid, defeased or redeemed (automatically or otherwise), or an
offer to repurchase, prepay, defease or redeem such Indebtedness to be made,
prior to its stated maturity, or such guaranty to become payable or cash
collateral in respect thereof to be demanded;"
(o) Section 11.1 of the Credit Agreement is hereby amended by
adding the following new subsections immediately following subsection (q)
therein:
"(r) any provision of any Loan Document applicable to any Loan
Party, at any time after its execution and delivery and for any reason other
than as expressly permitted hereunder or thereunder, ceases to be in full force
and effect; or the Borrower or any Affiliate of the Borrower contests in any
manner the validity or enforceability of any provision of any Loan Document; or
any Loan Party or any Person acting on or on behalf of such Loan Party denies
that it has any or further liability or obligation under any provision of any
Loan Document, or purports to revoke, terminate or rescind any provision of any
Loan Document;
(s) any Security Document after delivery thereof shall for any
reason (other than pursuant to the terms thereof) cease to be in full force and
effect or shall cease to create a valid and perfected first priority lien and
security interest in accordance with its terms (subject only to Permitted Liens)
on the Collateral purported to be covered thereby, except to the extent such
Collateral, individually or in the aggregate, with a fair market value of less
than $250,000;
(t) any Obligation that is "Senior Debt" as that term is
defined in the ACC Senior Subordinated Indenture ceases to qualify as
"Designated Senior Debt" for purposes of and as defined in the ACC 7 3/4% Senior
Subordinated Indenture, and all supplemental indentures thereto;
(u) the subordination provisions set forth in the Subordinated
Debt Documents or in any agreement evidencing any Permitted Refinancing
Indebtedness shall, in whole or in part, cease to be effective or cease to be
legally valid, binding and enforceable against the holders of the ACC 7 3/4%
Senior Subordinated Notes or any Permitted Refinancing Indebtedness with respect
thereto;"
(p) Schedule 1.1 to the Credit Agreement is hereby amended and
restated in full, as of the Amendment No. 1 Execution Date, by Schedule 1.1
hereto.
(q) Schedule 5.18 to the Credit Agreement is hereby amended and
restated in full by Schedule 5.18 hereto.
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SECTION 2. Amendments to the Pledge Agreement.
(a) The second paragraph of the recitals to the Pledge Agreement
is hereby amended by replacing the first parenthetical appearing therein with
the following: "(as amended and in effect from time to time, the "Credit
Agreement")".
(b) The definition of "Secured Parties" in Section 1.1 of the
Pledge Agreement is hereby amended as follows:
"Secured Parties means, collectively, the Agent, the Banks,
the Cash Management Banks and any Bank or Affiliate of a Bank that has
entered into an interest rate protection agreement with any Loan
Party."
(c) Section 2.2 of the Pledge Agreement is hereby amended by
replacing the first sentence thereof with the following:
"This Agreement (and the Pledged Collateral) secures the
prompt payment in full and performance when due of all and each of the
Obligations under the Credit Agreement, the other Loan Documents, the
Secured Cash Management Agreements, and the Secured Interest Rate
Protection Agreements."
(d) Section 2.6(b) of the Pledge Agreement is hereby amended and
restated in full to read as follows:
"any change in the corporate existence, structure or ownership
of any of the Pledgors or their Subsidiaries, or any insolvency,
bankruptcy, reorganization or other similar proceeding affecting any
such Person or any Property of any such Person or any resulting
release or discharge of any Obligation contained in the Credit
Agreement or, any other Loan Document, any Secured Cash Management
Agreement or any Secured Interest Rate Protection Agreement;"
(e) Section 2.6(c)(i) of the Pledge Agreement is hereby amended
and restated in full to read as follows:
"to assert any claim or demand or to enforce any right or
remedy against such Pledgor, any other Pledgor or any other Person
under the provisions of the Credit Agreement, any other Loan Document,
any Secured Cash Management Agreement, any Secured Interest Rate
Protection Agreement or any other Instrument relating to any thereof
or under any applicable law, or"
(f) Section 2.6(d) of the Pledge Agreement is hereby amended and
restated in full to read as follows:
"any change in the time, manner or place of payment of, or in
any other term of, all or any of the Obligations, or any other
compromise, renewal, extension, acceleration or release with respect
thereto or with respect to the Pledged Collateral, or any other
amendment to, rescission, waiver or other modification of, or any
consent to any departure from, the Credit Agreement, any other Loan
Document any Secured Cash
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Management Agreement, any Secured Interest Rate Protection Agreement,
or any other Instrument relating to any thereof;"
(g) Section 6.2 of the Pledge Agreement is hereby amended and
restated in full to read as follows:
"Section 6.2. Application of Proceeds. All cash proceeds
received by the Agent in respect of any sale of, liquidation of,
collection from, or other realization upon, all or any part of the
Pledged Collateral shall be applied as set forth in Section 11.3 of
the Credit Agreement."
(h) Attachment I to the Pledge Agreement is hereby amended and
restated in full by Attachment I hereto.
SECTION 3. Amendments to the Guaranty Agreement.
(a) The first paragraph of the Guaranty Agreement is hereby
amended by replacing the phrase "Banks parties to the Credit Agreement referred
to below" with the phrase "Secured Parties (as defined in the Credit Agreement
referred to below)."
(b) The first paragraph of the recitals to the Guaranty Agreement
is hereby amended by replacing the first parenthetical appearing therein with
the following: "(as amended and in effect from time to time, the "Credit
Agreement")."
(c) Section 1 of the Guaranty Agreement is hereby amended to
change each reference to "Banks" therein to "Secured Parties" and to add the
following phrase immediately after the second parenthetical therein: "or arising
under any Secured Cash Management Agreements or Secured Interest Rate Protection
Agreements."
(d) Section 2 of the Guaranty Agreement is hereby amended to
change each reference to "Banks" therein to "Secured Parties", to replace the
phrase "rate of interest announced by the Agent from time to time at its head
office as its" with the word "Alternate", and by changing the phrase "4%" to
"4.25%."
(e) Section 3 of the Guaranty Agreement is hereby amended and
restated in full to read as follows:
"3. Unlimited Guaranty. The liability of the Guarantors
hereunder shall be unlimited. Each Guarantor, and by its acceptance of
this Guaranty, the Agent and each of the Secured Parties, hereby
confirms that it is the intention of all such Persons that this
Guaranty and the Obligations of each Guarantor hereunder not
constitute a fraudulent transfer or conveyance for purposes of
Bankruptcy Law (a hereinafter defined), the Uniform Fraudulent
Conveyance Act, the Uniform Fraudulent Transfer Act or any singular
foreign, federal, or state law to the extent applicable to this
Guaranty and the Obligations of each Guarantor hereunder. To
effectuate the foregoing intention, the Agent, the Secured Parties,
and the Guarantors hereby irrevocably agree that, notwithstanding
anything to the contrary in the first sentence of this Section 3, the
Obligations of each Guarantor under the Guaranty at any time shall be
limited to the
11
maximum amount as will result in the Obligations of such Guarantor
under this Guaranty not constituting a fraudulent transfer or
conveyance. For purposes hereof "Bankruptcy Law" means any proceeding
of the type referred to in Section 11.1(f) of the Credit Agreement or
Title 11, U.S. Code, or any similar foreign, federal or state law for
the relief of debtors."
(f) Section 4 of the Guaranty Agreement is hereby amended to
change each reference to "Banks" therein to "Secured Parties."
(g) Section 5.1(b) of the Guaranty Agreement is hereby amended by
replacing the word "Credit Agreement" with the word "Guaranty."
(h) Section 7 of the Guaranty Agreement is hereby amended by
replacing the phrase "Agent and the Banks or their affiliates" with "Secured
Parties", replacing each of the phrases "affiliate of the Agent and the Banks"
and "such affiliate" with the phrase "Secured Party", and replacing the word
"Banks" with the phrase "Secured Party."
(i) Section 9 of the Guaranty Agreement is hereby amended by
deleting the phrase "Amended and Restated."
SECTION 4. Amendments to the Collateral Assignment.
(a) The first paragraph of the Collateral Assignment is hereby
amended by replacing the word "Banks" with the phrase "Secured Parties."
(b) The last sentence of the first paragraph of the recitals to
the Collateral Assignment is hereby amended and restated to read in full as
follows:
"It is a condition precedent to the Banks making any loans or
otherwise extending credit to Xxxxxxxxxx that each of the Debtors
execute and deliver to the Agent this Collateral Assignment of
Proceeds and Security Agreement for the benefit of the Secured
Parties."
(c) Section 1.1 of the Collateral Assignment is hereby amended by
replacing the word "Lenders" with the phrase "Secured Parties."
(d) Section 3.5 of the Collateral Assignment is hereby amended by
deleting subsection (b) thereto in its entirety.
(e) Section 5.3 of the Collateral Assignment is hereby amended and
restated in full to read as follows:
"Section 5.3. Obligations Absolute. The obligations of each
Debtor hereunder shall remain in full force and effect without regard
to, and shall not be impaired by, (a) any bankruptcy, insolvency,
reorganization, arrangement, readjustment, composition, liquidation or
the like of any Debtor; (b) any exercise or non-exercise, or any
waiver of, any right, remedy, power or privilege under or in respect
of this Agreement, any other Loan Document, any Secured Cash
Management Agreement or any Secured Interest Rate
12
Protection Agreement; or (c) any amendment to or modification of any
Loan Document, any Secured Cash Management Agreement, any Secured
Interest Rate Protection Agreement or any security for any of the
Obligations whether or not the Debtors, or any of them, shall have
notice or knowledge of any of the foregoing."
(f) The second sentence of Section 5.4 of the Collateral
Assignment is hereby amended and restated in full to read as follows:
"All agreements, statements, representations and warranties
made by each Debtor herein or in any certificate or other instrument
delivered by each Debtor or on its behalf under this Agreement shall
be considered to have been relied upon by the Secured Parties and
shall survive the execution and delivery of this Agreement, the other
Loan Documents, any Secured Cash Management Agreement and any Secured
Interest Rate Protection Agreement regardless of any investigation
made by the Agent or the Secured Parties or on their behalf."
SECTION 5. Supplement to Guaranty Agreement.
(a) Capitol News Company, LLC (together with its successors and
assigns, "Capitol News") hereby guarantees to the Agent and the Secured Parties,
jointly and severally with the other Guarantors, the full and punctual payment
when due (whether at maturity, by acceleration or otherwise), and the
performance, of all indebtedness, liabilities, agreements and other obligations
of the Borrower to the Agent and the Secured Parties, whether direct or
indirect, absolute or contingent, due or to become due, secured or unsecured,
now existing or hereafter acquired or arising under the Credit Agreement or any
other Loan Documents or in respect of the Loans (whether by way of discount,
letter of credit, lease, loan, overdraft or otherwise) or arising under any
Secured Cash Management Agreements or Secured Interest Rate Protection
Agreements (collectively, the "Guaranteed Obligations"). This guaranty is an
absolute, unconditional and continuing guaranty of the full and punctual payment
and performance of the Guaranteed Obligations and not of their collectability
only and is in no way conditioned upon any requirement that the Agent and the
Secured Parties first attempt to collect any of the Obligations from the
Borrower or resort to any security or other means of obtaining their payment.
Should the Borrower default in the payment or performance of any of the
Obligations, the obligations hereunder shall become immediately due and payable
to the Agent and the Secured Parties, without demand or notice of any nature,
all of which are expressly waived by the undersigned. Payments by Capitol News
hereunder may be required by the Agent on any number of occasions.
(b) Capitol News further agrees, jointly and severally with the
other Guarantors, as a principal obligor and not as a guarantor only, to pay to
the Agent and the Secured Parties, on demand, all costs and expenses (including
court costs and legal expenses) incurred or expended by the Agent and the
Secured Parties in connection with the Guaranteed Obligations, the Guaranty
Agreement and the enforcement thereof, together with interest on amounts
recoverable under the Guaranty Agreement from the time such amounts become due
until payment, at the rate per annum equal to the Alternate Base Rate plus
4.25%; provided that if such interest exceeds the maximum amount permitted to be
paid under applicable law, then such interest shall be reduced to such maximum
permitted amount.
13
(c) The liability of Capitol News under the Guaranty Agreement
shall be unlimited. Capitol News, the Agent and each of the Secured Parties
hereby confirms that it is the intention of all such Persons that the Guaranty
Agreement and the obligations of Capitol News not constitute a fraudulent
transfer or conveyance for purposes of Bankruptcy Law (a hereinafter defined),
the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or
any singular foreign, federal, or state law to the extent applicable to the
Guaranty Agreement and to the obligations of the undersigned. To effectuate the
foregoing intention, the Agent, the Secured Parties, and Capitol News hereby
irrevocably agree that, notwithstanding anything to the contrary in the first
sentence of this Section 5(c), the obligations of the undersigned under the
Guaranty Agreement at any time shall be limited to the maximum amount as will
result in the obligations of Capitol News under the Guaranty Agreement not
constituting a fraudulent transfer or conveyance. For purposes hereof
"Bankruptcy Law" means any proceeding of the type referred to in Section 11.1(f)
of the Credit Agreement or Title 11, U.S. Code, or any similar foreign, federal
or state law for the relief of debtors.
(d) Capitol News agrees that the Guaranteed Obligations will be
paid and performed strictly in accordance with their respective terms regardless
of any law, regulation or order now or hereafter in effect in any jurisdiction
affecting any of such terms or the rights of the Agent and the Secured Parties
with respect thereto. Capitol News waives presentment, demand, protest, notice
of acceptance, notice of Guaranteed Obligations incurred and all other notices
of any kind, all defenses which may be available by virtue of any valuation,
stay, moratorium law or other similar law now or hereafter in effect, any right
to require the marshalling of assets of the Borrower, and all suretyship
defenses generally. Without limiting the generality of the foregoing, Capitol
News agrees to the provisions of any instrument evidencing, securing or
otherwise executed in connection with any Guaranteed Obligation and agrees that
the obligations of Capitol News hereunder shall not be released or discharged,
in whole or in part, or otherwise affected by (i) the failure of the Agent and
the Secured Parties to assert any claim or demand or to enforce any right or
remedy against the Borrower; (ii) any extensions or renewals of any Guaranteed
Obligation; (iii) any rescissions, waivers, amendments or modifications of any
of the terms or provisions of any agreement evidencing securing or otherwise
executed in connection with any Guaranteed Obligation; (iv) the substitution or
release of any entity primarily or secondarily liable for any Guaranteed
Obligation; (v) the adequacy of any rights the Agent and the Secured Parties may
have against any collateral or other means of obtaining repayment of the
Guaranteed Obligations; (vi) the impairment of any collateral securing the
Guaranteed Obligations, including without limitation the failure to perfect or
preserve any rights the Agent and the Secured Parties might have in such
collateral or the substitution, exchange, surrender, release, loss or
destruction of any such collateral; or (vii) any other act or omission which
might in any manner or to any extent vary the risk of Capitol News or otherwise
operate as a release or discharge of Capitol News, all of which may be done
without notice to Capitol News.
(e) Capitol News hereby makes each representation and warranty set
forth in Section 5 of the Guaranty Agreement to the same extent as each other
Guarantor.
(f) Capitol News hereby agrees, as of the date hereof, to be bound
as a Guarantor by all of the terms and conditions of the Guaranty Agreement to
the same extent as each of the other Guarantors thereunder. Capitol News further
agrees, as of the date hereof, that each reference in the Guaranty Agreement to
a "Guarantor" shall also mean and be a reference to the undersigned,
14
and each reference in the Credit Agreement and in each other Loan Document to a
"Guarantor" or to a "Loan Party" will also mean and be a reference to Capitol
News.
(g) The provisions of this Section 5 shall constitute a "Guaranty
Agreement" and be a "Loan Document" under and as defined in the Credit
Agreement, as amended by this Amendment.
SECTION 6. Conditions of Effectiveness.
(a) This Amendment shall be deemed effective as of the close of
business on December 31, 2008 when, and only when, (i) the Agent shall have
received counterparts of this Amendment executed by the Borrower, the Guarantors
and the Majority Banks or, as to any of the Banks, advice satisfactory to the
Agent that such Bank has executed this Amendment and (ii) the Borrower shall
have paid to each Bank that executes this Amendment, in immediately available
funds, an amendment fee equal to 0.0025 multiplied by the amount of such Bank's
Commitment as of the date hereof, after giving effect to the Amendment. The
effectiveness of this Amendment is conditioned upon the accuracy of the factual
matters described herein. This Amendment is subject to the provisions of Section
24 of the Credit Agreement and Sections 1, 2, 3, 4 and 5 hereof shall become
effective when, and only when, the Agent shall have additionally received all of
the following documents, each such document (unless otherwise specified) dated
the date of receipt thereof by the Agent (unless otherwise specified) and in
sufficient copies for each Bank, in form and substance satisfactory to the
Agent:
i. a favorable opinion of Fulbright & Xxxxxxxx, L.L.P.,
counsel for the Borrower, in the form of Exhibit A attached hereto;
ii. certificates signed by a duly authorized officer of the
Borrower and each Guarantor stating that:
(i) The representations and warranties contained in
Section 7 are correct on and as of the date of such certificate as
though made on and as of such date other than any such representations
or warranties that, by their terms, refer to a date other than the
date of such certificates; and
(ii) No event has occurred and is continuing that
constitutes a Default.
iii. (A) such certificates of resolutions or other action,
incumbency certificates and/or other certificates of Responsible
Officers of each Loan Party as the Agent may require evidencing the
identity, authority and capacity of each Responsible Officer thereof
authorized to act as a Responsible Officer in connection with this
Agreement and the other Loan Documents to which such Loan Party is a
party or is to be a party and (B) a copy of a Certificate of the
Secretary of State of the jurisdiction of incorporation of each Loan
Party certifying (1) as to a true and correct copy of the charter of
such Loan Party and each amendment thereto on file in such Secretary's
office and (2) that such amendments are the only amendments to such
Loan Party's charter on file in such Secretary's office.
15
iv. an amendment to the Limited Liability Company Agreement
of Capitol News Company, LLC to include standard "opt-in" language
with respect to the applicability of Article 8 of the Uniform
Commercial Code.
(b) On the Amendment No. 1 Execution Date, the Borrower shall, in
coordination with the Agent, repay outstanding Loans of Bank of America in the
amount of $740,740.74 and incur additional Loans from Deutsche Bank Trust
Company Americas in a corresponding amount, even though as a result thereof such
new Loans (to the extent required to be maintained as Eurodollar Rate Loans) may
have a shorter Interest Period than the then outstanding Borrowings of such
Loans, in each case, to the extent necessary so that each Bank participates in
each outstanding Borrowing of Loans pro rata on the basis of their respective
Commitments after giving effect to the reduction in Bank of America's
Commitments as set forth on Schedule 1.1 attached hereto and with the Borrower
being obligated to pay to the respective Bank any costs of the type referred to
in Section 3.8 of the Credit Agreement and such amounts, as reasonably
determined by the respective Bank, to compensate them for funding the various
Loans during an existing Interest Period in connection with any such repayment
and incurrence. For the avoidance of doubt, such reduction in Bank of America's
Commitments will be effective on the Amendment No. 1 Execution Date.
(c) On the Amendment No. 1 Execution Date, the Borrower shall
deliver to the Agent any certificates evidencing the ownership of the Borrower
in Capitol News Company, LLC, together with undated transfer powers executed in
blank.
SECTION 7. Representations and Warranties of the Loan Parties.
Each Loan Party represents and warrants as follows:
(a) Each of the Borrower and its Subsidiaries is a corporation, or
in the case of KTUL LLC, KATV LLC and WCIV LLC, a limited liability company,
duly organized, validly existing and in good standing under the laws of the its
state of formation or incorporation.
(b) The execution, delivery and performance of this Amendment and
the other Loan Documents, as amended hereby, to which the Borrower or any of its
Subsidiaries is or is to become a party and the transactions contemplated hereby
and thereby (i) are within the authority and legal right of the Borrower and its
Subsidiaries, (ii) have been duly authorized by all necessary proceedings, (iii)
do not conflict with or result in any breach or contravention of any provision
of law, statute, rule or regulation to which the Borrower or any of its
Subsidiaries is subject or any judgment, order, writ, injunction, license or
permit applicable to the Borrower or any of its Subsidiaries which would have a
materially adverse effect on the business, assets or financial condition of the
Borrower or the Borrower and its Subsidiaries, taken as a whole and (iv) do not
conflict with any provision of the charter or the by-laws or limited liability
company agreement, as applicable, or any agreement or any instrument binding
upon, the Borrower or any of its Subsidiaries.
(c) The execution and delivery of this Amendment and the other
Loan Documents, as amended hereby, to which the Borrower or any of its
Subsidiaries is or is to become a party will result in valid and legally binding
obligations of the Borrower and each such Subsidiary
16
enforceable in accordance with the respective terms and provisions hereof and
thereof, except as enforceability is limited by bankruptcy, insolvency,
reorganization, moratorium or other laws relating to or affecting generally the
enforcement of creditors' rights and except to the extent that availability of
the remedy of specific performance or injunctive relief is subject to the
discretion of the court before which any proceeding therefor may be brought.
(d) The execution, delivery and performance by the Borrower and
its Subsidiaries of this Amendment and the other Loan Documents, as amended
hereby, to which the Borrower or any such Subsidiary is or is to become a party
and the transactions contemplated hereby and thereby do not require the Borrower
or any of its Subsidiaries to obtain the approval or consent of, to make a
filing with, or to perform or obtain the performance of any other act by or in
respect of any governmental agency or authority other than those already
obtained or performed, and except that the exercise of certain rights under the
Loan Documents may require the consent of the FCC.
(e) There are no actions, suits, proceedings or investigations of
any kind pending or, to the Borrower's knowledge, threatened against the
Borrower or any of its Subsidiaries before any court, tribunal or administrative
agency or board that, if adversely determined are reasonably likely to in the
aggregate, materially adversely affect the properties, assets, financial
condition or business of the Borrower and its Subsidiaries, taken as a whole or
materially impair the right of the Borrower and its Subsidiaries, taken as a
whole, to carry on business substantially as now conducted by them, or result in
any substantial liability not adequately covered by insurance, or for which
adequate reserves are not maintained on the consolidated balance sheet of the
Borrower, or which question the validity of this Amendment or any of the other
Loan Documents, as amended hereby, or any action taken or to be taken pursuant
hereto or thereto.
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 and each of the other Loan Documents to "this
Agreement", "hereunder", "hereof" or words of like import referring to the
Credit Agreement or the Guaranty Agreement, and each reference to "the Credit
Agreement", "the Guaranty Agreement", "thereunder", "thereof" or words of like
import referring to the Credit Agreement or the Guaranty Agreement, shall mean
and be a reference to the Credit Agreement or the Guaranty Agreement, as
applicable, as amended by this Amendment.
(b) The Credit Agreement and each of the other Loan Documents, as
specifically amended by this Amendment, are and shall continue to be in full
force and effect and are hereby in all respects ratified and confirmed. Without
limiting the generality of the foregoing, the Security Documents and all of the
Collateral described therein do and shall continue to secure the payment of all
Obligations of the Loan Parties under the Loan Documents, in each case as
amended by this Amendment.
(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
17
Agent under any of the Loan Documents, nor constitute a waiver of any provision
of any of the Loan Documents.
(d) This Amendment is a "Loan Document" under and as defined in
the Credit Agreement, as amended by this Amendment.
SECTION 9. Costs, Expenses.
The Borrower agrees to pay on demand all costs and expenses of the
Agent in connection with the preparation, execution, delivery and
administration, modification and amendment of the Loan Documents and the other
instruments and documents to be delivered hereunder (including, without
limitation, the reasonable fees and expenses of counsel for the Agent) in
accordance with the terms of Section 14(a) of the Credit Agreement. In addition,
the Borrower shall pay any and all stamp and other taxes payable or determined
to be payable in connection with the execution and delivery of this Amendment
and the other instruments and documents to be delivered hereunder, and agrees to
save the Agent and each Bank harmless from and against any and all liabilities
with respect to or resulting from any delay in paying or omission to pay such
taxes.
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 shall be deemed to be an original and all of which taken together shall
constitute but one and the same agreement. 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 this Amendment.
SECTION 11. GOVERNING LAW.
THIS AMENDMENT IS A CONTRACT UNDER THE LAWS OF THE COMMONWEALTH OF
MASSACHUSETTS AND SHALL FOR ALL PURPOSES BE CONSTRUED IN ACCORDANCE WITH AND
GOVERNED BY THE LAWS OF SAID COMMONWEALTH (EXCLUDING THE LAWS APPLICABLE TO
CONFLICTS OR CHOICE OF LAW). THE BORROWER, THE AGENT AND THE BANKS CONSENT TO
THE JURISDICTION IN ANY OF THE FEDERAL OR STATE COURTS LOCATED IN THE
COMMONWEALTH OF MASSACHUSETTS IN CONNECTION WITH ANY MATTER RELATING TO THIS
AMENDMENT.
SECTION 12. Release/Covenant Not to Xxx.
(a) In consideration of the agreements of Agent and Banks
contained herein and for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, Borrower and each other Loan Party
(by such other Loan Party's execution and delivery of this Amendment), on behalf
of itself and its successors, assigns, and other legal representatives, hereby
absolutely, unconditionally and irrevocably releases, remises and forever
discharges Agent and Banks, and their successors and assigns, and their present
and former shareholders, affiliates, subsidiaries, divisions, predecessors,
directors, officers, attorneys, employees, agents and other representatives
(Agent, each Bank and all such other Persons being hereinafter referred to
collectively as the "Releasees" and individually as a "Releasee"), of and
18
from all demands, actions, causes of action, suits, covenants, contracts,
controversies, agreements, promises, sums of money, accounts, bills, reckonings,
damages and any and all other claims, counterclaims, defenses, rights of
set-off, demands and liabilities whatsoever (individually, a "Claim" and
collectively, "Claims") of every name and nature, known or unknown, suspected or
unsuspected, both at law and in equity, Borrower or such Loan Party or any of
their successors, assigns, or other legal representatives may now or hereafter
own, hold, have or claim to have against the Releasees or any of them for, upon,
or by reason of any circumstance, action, cause or thing whatsoever which arises
at any time on or prior to the day and date of this Amendment for or on account
of, or in relation to, or in any way in connection with any of the Credit
Agreement, or any of the other Loan Documents or transactions thereunder or
related thereto; provided, however, that the foregoing shall not be construed to
release the Agent or the Banks, or their successors or assignees, from either
their obligations under any of the Loan Documents, as amended by this Amendment,
from and after the date of this Amendment or any claim on account of or in
relation thereto, notwithstanding the fact that the Agent or the Banks became a
party to a Loan Document prior to such date.
(b) Borrower and each other Loan Party understands, acknowledges
and agrees that the release set forth above may be pleaded as a full and
complete defense and may be used as a basis for an injunction against any
action, suit or other proceeding which may be instituted, prosecuted or
attempted in breach of the provisions of such release.
(c) Borrower and each other Loan Party agrees that no fact, event,
circumstance, evidence or transaction which could now be asserted or which may
hereafter be discovered shall affect in any manner the final, absolute and
unconditional nature of the release set forth above.
(d) Borrower and each other Loan Party (by such other Loan Party's
execution and delivery of this Amendment), on behalf of itself and its
successors, assigns, and other legal representatives, hereby absolutely,
unconditionally and irrevocably, covenants and agrees with and in favor of each
Releasee that it will not xxx (at law, in equity, in any regulatory proceeding
or otherwise) any Releasee on the basis of any Claim released, remised and
discharged by Borrower and each other Loan Party pursuant to this Section 12. If
Borrower, any other Loan Party or any of their respective successors, assigns or
other legal representations violates the foregoing covenant, Borrower and each
other Loan Party, for itself and its successors, assigns and legal
representatives, agrees to pay, in addition to such other damages as any
Releasee may sustain as a result of such violation, all attorneys' fees and
costs incurred by any Releasee as a result of such violation.
19
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.
XXXXXXXXXX COMMUNICATIONS COMPANY,
as the Borrower
By /s/ Xxxxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Chief Financial Officer
and Senior Vice President
ALLFINCO, INC.,
as Guarantor
By /s/ Xxxxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
KATV, LLC,
as Guarantor
By /s/ Xxxxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
KTUL, LLC,
as Guarantor
By /s/ Xxxxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
WSET, INCORPORATED,
as Guarantor
By /s/ Xxxxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
XXXXXXXXXX TELEVISION PRODUCTIONS, INC.,
as Guarantor
By /s/ Xxxxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
TV ALABAMA, INC.,
as Guarantor
By /s/ Xxxxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
HARRISBURG TELEVISION, INC.,
as Guarantor
By /s/ Xxxxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
WCIV, LLC,
as Guarantor
By /s/ Xxxxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
ACC LICENSEE INC.,
as Guarantor
By /s/ Xxxxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
CAPITOL NEWS COMPANY, LLC,
as Guarantor
By /s/ Xxxxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
BANK OF AMERICA, N.A.,
as the Agent and as Bank
By /s/ Xxxxx van der Xxxxx
-----------------------------------
Name: Xxxxx van der Xxxxx
Title: Senior Vice President
DEUTSCHE BANK TRUST COMPANY AMERICAS,
as Bank
By /s/ Xxxxx XxXxxxx
-----------------------------------
Name: Xxxxx XxXxxxx
Title: Director
By /s/ Xxxxxx Xxxxxxxx
-----------------------------------
Name: Xxxxxx Xxxxxxxx
Title: Vice President
Schedule 1.1
Banks
Percentage of
Commitment Commitment
Bank of America, N.A. $32,500,000.00 48.148148148%
Deutsche Bank Trust Company $35,000,000.00 51.851851851%
Americas
Totals: $67,500,000.00 100%
1
