EXHIBIT 10.1
SECOND AMENDMENT TO LOAN AGREEMENT
THIS SECOND AMENDMENT TO LOAN AGREEMENT (this "Amendment") is made and
entered into as of this 8th day of April, 2004, with an Effective Date as set
forth in Section 1 hereof, by and among ▇▇▇▇ TELEVISION, INC., a Georgia
corporation (the "Borrower"), the banks and lending institutions party to the
Loan Agreement referred to below (the "Lenders"), WACHOVIA BANK, NATIONAL
ASSOCIATION, a national banking association, in its capacity as administrative
agent for the lenders (the "Administrative Agent"), BANK OF AMERICA, N.A., in
its capacity as syndication agent (the "Syndication Agent") and DEUTSCHE BANK
TRUST COMPANY AMERICAS, in its capacity as documentation agent (the
"Documentation Agent").
The Lenders have extended certain credit facilities to the Borrower
pursuant to the Fourth Amended and Restated Loan Agreement dated as of October
25, 2002, by and among the Borrower, the Lenders, the Administrative Agent, the
Syndication Agent and the Documentation Agent (as previously amended by the
First Amendment to Loan Agreement dated as of June 9, 2003 by among the
Borrower, the lenders party thereto and the Administrative Agent, as amended
hereby and as may be further amended, restated, supplemented or otherwise
modified from time to time, the "Loan Agreement").
The parties now desire to amend the Loan Agreement in certain respects
subject to the terms and conditions set forth below.
NOW THEREFORE, for good and valuable consideration, the receipt and
adequacy of which is hereby acknowledged, the parties hereto agree as follows:
1. Amendment to the Loan Agreement. Effective as of the date (the
"Effective Date") that the Administrative Agent shall have received this
Amendment executed by the Borrower and the Administrative Agent on behalf of
itself and the other requisite Lenders pursuant to authorization letters of even
date, Section 1.1 ("Definitions") of the Loan Agreement is hereby amended by
deleting the reference to "$5,000,000" in clause (vi) of the definition of
"Excess Cash Flow" and replacing it with "$10,000,000".
2. Effect of the Amendment. All capitalized undefined terms used in
this Amendment shall have the meanings assigned thereto in the Loan Agreement.
Except as expressly modified hereby, the Loan Agreement and the other Loan
Documents shall be and remain in full force and effect. This Amendment shall not
be deemed (a) to be a waiver of, or consent to, a modification or amendment of,
any other term or condition of the Loan Agreement or any other Loan Document or
(b) to prejudice any other right or rights which the Administrative Agent or the
Lenders may now have or may have in the future under or in connection with the
Loan Agreement or the other Loan Documents or any of the instruments or
agreements referred to therein, as the same may be amended or modified from time
to time.
3. Representations and Warranties/No Default. By its execution hereof,
the Borrower hereby certifies that (a) each of the representations and
warranties set forth in the Loan Agreement and the other Loan Documents is true
and correct as of the date hereof as if fully set forth herein unless such
representations and warranties relate to a specific date, in which case such
representations and warranties shall be true and correct as of such specific
date, (b) no Default or Event of Default has occurred and is continuing as of
the date hereof, (c) as of the date hereof there are no claims or offsets
against or defenses or counterclaims to any of the obligations of the Borrower
under the Loan Agreement or any other Loan Document, (d) it has the right, power
and authority and has taken all necessary corporate and other action to
authorize the execution, delivery and performance of this Amendment and each
other document executed in connection herewith to which it is a party in
accordance with their respective terms and (e) this Amendment and each other
document executed in connection herewith has been duly executed and delivered by
the duly authorized officers of the Borrower and each such document constitutes
the legal, valid and binding obligation of the Borrower, enforceable in
accordance with its terms.
4. Costs and Expenses. The Borrower shall pay all reasonable
out-of-pocket costs and expenses of the Administrative Agent in connection with
the preparation, execution and delivery of this Amendment, including, without
limitation, the reasonable fees and disbursements of counsel for the
Administrative Agent.
5. Miscellaneous.
(a) THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES
HEREUNDER SHALL BE CONSTRUED IN ACCORDANCE WITH AND BE GOVERNED BY THE LAW
(WITHOUT GIVING EFFECT TO THE CONFLICTS OR CHOICE OF LAW PRINCIPLES THEREOF) OF
THE STATE OF GEORGIA.
(b) This Amendment may be executed in separate counterparts, each
of which when executed and delivered is an original but all of which taken
together constitute one and the same instrument. A facsimile, telecopy or other
reproduction of this Amendment may be executed by one or more parties hereto,
and an executed copy of this Amendment may be delivered by one or more parties
hereto by facsimile or similar instantaneous electronic transmission device
pursuant to which the signature of or on behalf of such party can be seen, and
such execution and delivery shall be considered valid, binding and effective for
all purposes. At the request of any party hereto, all parties hereto agree to
execute an original of this Amendment as well as any facsimile, telecopy or
other reproduction hereof.
(c) The parties hereto agree that notwithstanding anything
contained herein to the contrary, if the conditions set forth in Section 1 of
this Amendment are satisfied on or after April 14, 2004 (but in no event later
than April 30, 2004), the Effective Date of the amendment set forth in Section 1
shall be April 14, 2004. In furtherance of the foregoing the Lenders agree that
if, notwithstanding the foregoing sentence, the Effective Date of this Amendment
is deemed to be later than April 14, 2004 and the Borrower has not made a
payment pursuant to Section 2.7(b)(iv) of the
Loan Agreement solely in reliance on the fact that such payment is no longer
required after giving effect to this Amendment, then the interest rate will not
increase pursuant to Section 2.3(d) of the Loan Agreement without (i) prior
notice to the Borrower of such increase and (ii) an affirmative vote of the
Required Lenders.
(d) By its execution hereof, each of the Subsidiaries of the
Borrower listed on the signature pages to this Amendment hereby expressly (a)
consents to the modifications and amendments set forth in this Amendment, (b)
reaffirms all of its respective covenants, representations, warranties and other
obligations set forth in the Subsidiary Guaranty and the other Loan Documents to
which it is a party and (c) acknowledges, represents and agrees that its
respective covenants, representations, warranties and other obligations set
forth in the Subsidiary Guaranty and the other Loan Documents to which it is a
party remain in full force and effect.
[Signatures Pages Follow]
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed as of the date and year first above written.
BORROWER:
▇▇▇▇ TELEVISION, INC., as Borrower
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇
Title: Senior Vice President and Chief
Financial Officer
SUBSIDIARY GUARANTORS:
▇▇▇▇ PUBLISHING, LLC, as Subsidiary Guarantor
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇
Title: Vice President and Chief Financial
Officer
PORTA-PHONE PAGING LICENSEE CORP. , as
Subsidiary Guarantor
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇
Title: Treasurer
WVLT-TV, INC., as Subsidiary Guarantor
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇
Title: Vice President and Chief Financial
Officer
▇▇▇▇ MIDAMERICA TELEVISION, INC., as
Subsidiary Guarantor
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
----------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇
Title: Treasurer
[Signature Pages Continue]
▇▇▇▇ TELEVISION GROUP, INC., as Subsidiary
Guarantor
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇
Title: Senior Vice President, Assistant
Secretary and Treasurer
▇▇▇▇ TELEVISION LICENSEE, INC., as Subsidiary
Guarantor
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇
Title: Treasurer
▇▇▇▇ TEXAS LP, as Subsidiary Guarantor
By: ▇▇▇▇ TELEVISION GROUP, INC., its General
Partner
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇
Title: Senior Vice President, Assistant
Secretary and Treasurer
▇▇▇▇ TEXAS LLC, as Subsidiary Guarantor
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇
Title: Treasurer
ADMINISTRATIVE AGENT:
WACHOVIA BANK, NATIONAL ASSOCIATION, as
Administrative Agent and Lender on behalf of
itself and the other Lenders
By: /s/ ▇▇▇ ▇▇▇▇▇▇
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Name: ▇▇▇ ▇▇▇▇▇▇
Title: Director