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EXECUTION COPY
AMENDMENT NO. 2 TO CREDIT AGREEMENT
AMENDMENT NO. 2 TO CREDIT AGREEMENT dated November 13, 2009 (the
"Amendment") among ALLBRITTON 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, as amended by
Amendment No.1 to Loan Documents, executed on February 5, 2009 (the "Credit
Agreement"). 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 as hereinafter set forth.
SECTION 1. Amendments to Credit Agreement.
(a) The following definitions are hereby added to Section 1.1 of the
Credit Agreement in the proper alphabetical order:
"Amendment No. 2 Effective Date. November 13, 2009."
"Capitol News. Capitol News Company, LLC, a Delaware limited liability
company."
(b) Section 7.4 of the Credit Agreement is hereby amended by deleting the
word "and" appearing at the end of Section 7.4(f), by replacing the period at
the end of Section 7.4(g) thereof with "; and", and by adding a new clause (h)
to read in full as follows:
"(h) the declaration and distribution to the holders of capital stock
in the Borrower of the membership interests in Capitol News; provided,
that (i) no Default or Event of Default is continuing on the date of
such declaration and/or distribution or after giving effect thereto as
if it had occurred as of the Pro Forma Test Date (as defined above),
(ii) the Agent and the Banks shall have received, prior to the making
of such declaration and distribution, 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 declaration and distribution and any
transaction, if any, consummated pursuant to Sections 7.4(d) and
7.4(g), with the covenants contained in Sections 8.1, 8.2, 8.3 and 8.4
as at the Pro Forma Test Date (as defined above), and (iii) such
declaration and distribution shall have occurred within fifteen (15)
days after the Amendment No. 2 Effective Date."
SECTION 2. Conditions of Effectiveness.
(a) This Amendment shall be effective as of the date first written above
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 Agent shall have received certificates
signed by a duly authorized officer of the Borrower and each Guarantor stating
that (x) the representations and warranties contained in Section 3 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 (y) no event has occurred
and is continuing that constitutes a Default or an Event of Default. This
Amendment is subject to the provisions of Section 24 of the Credit Agreement and
the effectiveness of this Amendment is conditioned upon the accuracy of the
factual matters described herein.
SECTION 3. 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 Capitol News Company, 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
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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 4. 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,
and each reference to "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.
(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 Agent under any of the Loan Documents, nor constitute
a waiver of any provision of any of the Loan Documents.
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(d) This Amendment is a "Loan Document" under and as defined in the Credit
Agreement, as amended by this Amendment.
SECTION 5. 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 6. 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 7. 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 8. Release/Covenant Not to Sue.
(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 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
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(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 sue (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 8. 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.
SECTION 9. Release of Capitol News.
In connection with the transactions contemplated by this Amendment, the
Agent and the Banks hereby agree that, pursuant to Sections 13.10 and 13.11 of
the Credit Agreement, upon the fulfillment of the conditions set forth in
Section 2 hereof and the distribution of the membership interests in Capitol
News in accordance with Section 7.4(h) of the Credit Agreement, as amended by
this Amendment, (i) Capitol News shall cease to be a Guarantor under the Loan
Documents, (ii) Capitol News shall cease to be a party to the Collateral
Assignment of Proceeds and (iii) the membership interests in Capitol News shall
cease to constitute Collateral for purposes of the Loan Documents.
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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.
ALLBRITTON COMMUNICATIONS COMPANY,
as the Borrower
By /s/ Stephen P. Gibson
-----------------------------------
Title: Senior Vice President
ALLFINCO, INC.,
as Guarantor
By /s/ Stephen P. Gibson
-----------------------------------
Title: Vice President
KATV, LLC,
as Guarantor
By /s/ Stephen P. Gibson
-----------------------------------
Title: Vice President
KTUL, LLC,
as Guarantor
By /s/ Stephen P. Gibson
-----------------------------------
Title: Vice President
WSET, INCORPORATED,
as Guarantor
By /s/ Stephen P. Gibson
-----------------------------------
Title: Vice President
ALLBRITTON TELEVISION PRODUCTIONS,
INC., as Guarantor
By /s/ Stephen P. Gibson
-----------------------------------
Title: Vice President
TV ALABAMA, INC.,
as Guarantor
By /s/ Stephen P. Gibson
-----------------------------------
Title: Vice President
HARRISBURG TELEVISION, INC.,
as Guarantor
By /s/ Stephen P. Gibson
-----------------------------------
Title: Vice President
ACC LICENSEE INC.,
as Guarantor
By /s/ Stephen P. Gibson
-----------------------------------
Title: Vice President
CAPITOL NEWS COMPANY, LLC,
as Guarantor
By /s/ Stephen P. Gibson
-----------------------------------
Title: Vice President
BANK OF AMERICA, N.A.,
as the Agent and as Bank
By /s/ Peter van der Horst
-----------------------------------
Title: Senior Vice President
DEUTSCHE BANK TRUST COMPANY AMERICAS,
as Bank
By /s/ Susan LeFevre
-----------------------------------
Title: Managing Director
By /s/ Scottye Lindsey
-----------------------------------
Title: Director
