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Exhibit 10.1
Fourth Amendment, dated as of December 21, 1999 (this "Fourth Amendment") to
the Amended and Restated Credit Agreement, dated as of July 2, 1998 (as amended
by the First Amendment and Assignment and Acceptance, dated as of July 27,
1998, the Second Amendment, dated as of January 29, 1999, the Third Amendment,
dated as of June 29, 1999, and as may be further amended, supplemented or
otherwise modified from time to time, the "Credit Agreement"), among (i)
SUNRISE TELEVISION CORP. ("Holdings"); (ii) STC BROADCASTING, INC. (the
"Borrower"); (iii) the several banks and other financial institutions from time
to time parties thereto, (individually, a "Lender," and collectively, the
"Lenders"); (iv) NATIONSBANK, N.A., as documentation agent (in such capacity,
the "Documentation Agent"); (v) CITICORP USA, INC. (formerly known as Salomon
Brothers Holding Company Inc), as syndication agent (in such capacity, the
"Syndication Agent") and (vi) THE CHASE MANHATTAN BANK, as administrative agent
for the Lenders thereunder (in such capacity, the "Administrative Agent").
W I T N E S S E T H :
WHEREAS, pursuant to the Credit Agreement the Lenders have agreed to
make, and have made, certain Loans to the Borrower;
WHEREAS, Holdings and the Borrower have requested that the Lenders
amend, and the Lenders have agreed to amend, certain of the provisions of the
Credit Agreement upon the terms and subject to the conditions set forth below;
NOW, THEREFORE, the parties hereto hereby agree as follows:
1. Defined Terms. (a) General. Capitalized terms used herein and not otherwise
defined are used herein as defined in the Credit Agreement.
(b) Addition of Definitions. Subsection 1.1 of the Credit Agreement is
hereby amended by adding thereto the following defined term in the appropriate
alphabetical order:
"Special Subordinated Debt Issuance": the issuance by Holdings of
pay-in-kind subordinated Indebtedness to infuse additional capital
into the Borrower through the purchase of Capital Stock by Holdings in
an aggregate amount not to exceed $25,000,000, the proceeds of which
are used by the Borrower to prepay the Revolving Credit Loans as
described in subsection 2.9(a). Such Indebtedness will be issued to
HMTF in the approximate amount of $22,500,000 and to Chase Equity
Associates, L.P. in the approximate amount of $2,500,000. The terms of
such subordinated Indebtedness shall be reasonably satisfactory to the
Administrative Agent.
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1. Amendment to Subsection 2.9(a). Subsection 2.9(a) of the Credit Agreement is
hereby amended by adding at the end thereof immediately prior to the period the
following:
"provided, further, notwithstanding the foregoing provisions of
this subsection 2.9, 100% of the Net Cash Proceeds from the Special
Subordinated Debt Issuance and the related purchase by Holdings of
Capital Stock of the Borrower shall be applied on the date of such
issuance toward the prepayment of the Revolving Credit Loans"
1. Amendment to Subsection 2.9(d). Subsection 2.9(d) of the Credit Agreement is
hereby amended by adding at the end of the first sentence thereof immediately
prior to the period the following:
"provided, that, notwithstanding the foregoing provisions of this
subsection 2.9(d), 100% of the Net Cash Proceeds from the Special
Subordinated Debt Issuance and the related purchase by Holdings of
Capital Stock of the Borrower shall be applied on the date of such
issuance toward the prepayment of the Revolving Credit Loans"
1. Amendment to Subsection 4.16. Subsection 4.16 of the Credit Agreement is
hereby amended by adding at the end thereof and immediately prior to the period
the following:
"provided, that a portion of the Revolving Credit Loans may be
used to make the Restricted Payments described in, and in accordance
with the terms of, subsection 7.6(a)(vi)"
1. Amendment to Subsection 7.2. Subsection 7.2 of the Credit Agreement is
hereby amended by adding thereto the following new paragraph (n):
"(n) Indebtedness of Holdings arising under the Special
Subordinated Debt Issuance."
1. Amendment to Subsection 7.6. Subsection 7.6 of the Credit Agreement is
hereby amended by (a) deleting the reference to "clause (vi)" in the second
line of paragraph (a) and substituting in lieu thereof a reference to "clause
(iv)", (b) deleting the word "and" at the end of paragraph (a)(iv) thereof, (c)
deleting the period at the end of paragraph (a)(v) and substituting in lieu
thereof the following: "; and", (d) adding thereto the following new paragraph
(a)(vi):
"(vi) the proceeds of which are used by Holdings to make payments
on account of the Special Subordinated Debt Issuance; provided, that
(x) the aggregate amount of such Restricted Payments made by the
Borrower to Holdings in reliance on this clause (vi) shall not exceed
the amount of the proceeds contributed by Holdings to the Borrower in
connection with the Special Subordinated Debt Issuance and (y) prior
to making any such Restricted Payments in reliance on this clause (vi)
the Borrower shall have presented evidence to the Administrative Agent
in reasonably satisfactory detail (including supporting calculations)
demonstrating that the Borrower was in compliance with each of the
financial condition covenants contained in subsection 7.1 as of the
end of the one
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fiscal quarter most recently concluded prior to the making of any
such Restricted Payment and would be so in compliance after giving
effect to the making of any such Restricted Payment, with such
compliance being determined on a pro forma basis assuming that the
Net Cash Proceeds from the Special Subordinated Debt Issuance had
not been applied toward the prepayment of the Revolving Credit
Loans."
1. Fees. In consideration of the agreement of the Lenders to consent to the
amendments contained herein, the Borrower agrees to pay to each Lender which so
consents on or prior to December 21, 1999, an amendment fee in an amount equal
to 0.10% of the amount of such Lender's Commitment, payable on the date hereof
in immediately available funds.
1. Effectiveness. This Fourth Amendment shall become effective on the date on
which the following conditions precedent shall have been satisfied (such date,
the "Effective Date"):
(a) the Administrative Agent shall have received counterparts of
this Fourth Amendment, duly executed and delivered by Holdings, the
Borrower, the Required Lenders, the Majority Committed Term Facility
Lenders and the Majority Facility Lenders in respect of the
Incremental Term Loan Facility ;
(b) all corporate and other proceedings, and all documents,
instruments and other legal matters in connection with the
transactions contemplated by this Fourth Amendment shall be
satisfactory in form and substance to the Administrative Agent; and
(c) the Borrower shall have paid the fees referred to in paragraph
6 of this Fourth Amendment.
1. Representations and Warranties. On and as of the date hereof after giving
effect to this Fourth Amendment, each of Holdings and the Borrower hereby
represents and warrants to the Lenders that:
(a) Each of its representations and warranties contained in
Section 4 of the Credit Agreement or in any certificate, document or
financial or other statement furnished at any time under or in
connection therewith are true and correct in all material respects on
and as of such date as if made on and as of such date, except to the
extent that such representations and warranties specifically relate to
an earlier date, in which case such representations and warranties
shall be true and correct in all material respects as of such earlier
date; provided that the references to the Credit Agreement therein
shall be deemed to include this Fourth Amendment; and
(a) No Default or Event of Default has occurred and is continuing.
1. Continuing Effect; No Other Amendments. Except as expressly amended or
waived hereby, all of the terms and provisions of the Credit Agreement and the
other Loan Documents are and shall remain in full force and effect. The
amendments and waivers contained herein shall not constitute an amendment or
waiver of any other provision of the Credit Agreement or the other Loan
Documents or for any purpose except as expressly set forth herein.
1. Additional Assurances. Each of Holdings and the Borrower agrees to take such
action as may reasonably be requested by the Administrative Agent for Holdings
to pledge the Capital Stock of the Borrower acquired by Holdings with the
proceeds of the Special Subordinated Debt Issuance to the Administrative Agent
under the Amended and Restated Guarantee and Collateral Agreement (including,
without limitation, by the delivery to the Administrative Agent, with undated
stock powers duly executed in blank, of any certificates representing such
capital stock).
1. GOVERNING LAW; Counterparts. (a) THIS FOURTH AMENDMENT SHALL BE GOVERNED BY,
AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW
YORK.
(b) This Fourth Amendment may be executed in any number of
counterparts, all of which counterparts, taken together, shall
constitute one and the same instrument. This Fourth Amendment may be
delivered by facsimile transmission of the relevant signature pages
hereof.
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IN WITNESS WHEREOF, the parties have caused this Fourth Amendment to
be duly executed and delivered by their respective proper and duly authorized
officers as of the day and year first above written.
SUNRISE TELEVISION CORP.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
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Title: CFO & Executive Vice President
STC BROADCASTING, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
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Title: CFO & Executive Vice President
THE CHASE MANHATTAN BANK, as Administrative Agent and as a Lender
By: ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
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Title:Vice President
NATIONSBANK, N.A., as Documentation Agent and as a Lender
By: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
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Title: Managing Director
CITICORP USA, INC., as Syndication Agent and as a Lender
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
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Title: Attorney-in-Fact
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FINOVA CAPITAL CORPORATION,
as a Lender
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇
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Title: Vice President
THE CIT GROUP/EQUIPMENT FINANCING, INC., as a Lender
By: /s/ ▇.▇. ▇▇▇▇▇▇
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Title: Assistant Vice President
PARIBAS, as a Lender
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
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Title: Assistant Vice President
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Title: Managing Director
NATEXIS BANQUE BFCE, as a Lender
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Title: Associate
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Title: VP Group Manager
GENERAL ELECTRIC CAPITAL CORPORATION, as a Lender
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Title: Duly Authorized Signatory
SUMMIT BANK, as a Lender
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇
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Title: Vice President
BANK OF HAWAII, as a Lender
By: /s/ ▇▇▇▇▇ ▇▇▇▇
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Title: Vice President
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COOPERATIEVE CENTRALE RAIFFEISEN-BOERENLEENBANK B.A., "RABOBANK
NEDERLAND", NEW YORK BRANCH, as a Lender
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Title: Senior Vice President
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇
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Title: Senior Vice President
THE FUJI BANK, LIMITED,
NEW YORK BRANCH,
as a Lender
By: /s/ ▇▇▇▇ ▇▇▇▇▇
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Title: Vice President and Manager
FIRST HAWAIIAN BANK, as a Lender
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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Title: Asst. Vice President
BHF (USA) CAPITAL CORPORATION,
as a Lender
By: /s/ ▇▇▇▇▇▇▇ Pellerita
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Title: Assistant Vice President
By: /s/ ▇▇▇▇▇▇▇▇▇▇▇ Dodger
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Title: Associate