Exhibit 10.2
AMENDMENT NO.
5
THIS AMENDMENT NO. 5 TO SECOND LIEN
SENIOR SECURED CREDIT AGREEMENT AND NOTE (this “
Amendment ”) is made and entered into as of March 12,
2009 by and between TRIPLE CROWN MEDIA, LLC, a Delaware limited
liability company (the “ Borrower ”), TRIPLE
CROWN MEDIA, INC., a Delaware corporation (the “
Parent ”), the subsidiary guarantors identified on the
signature pages hereto (the “ Subsidiary Guarantors
” and collectively, with the Parent, the “
Guarantors ”), the lenders party to the Credit
Agreement referred to below (the “ Lenders ”),
and WILMINGTON TRUST FSB (“ Wilmington Trust ”),
as Administrative Agent and Collateral Agent (the “
Administrative Agent ”) on behalf of itself and the
Lenders.
STATEMENT OF
PURPOSE
The Lenders have extended certain
credit facilities to the Borrower pursuant to the Second Lien
Senior Secured Credit Agreement dated as of December 30, 2005
by and among the Borrower, the Parent, the Subsidiary Guarantors,
the Lenders and the Administrative Agent (as amended by Amendment
No. 1 dated as of May 19, 2006, Consent and Amendment
No. 2 dated as of September 14, 2006, Amendment
No. 3 dated as of November 7, 2007, Amendment No. 4
dated as of February 15, 2008, and as further amended,
restated, supplemented or otherwise modified from time to time, the
“ Credit Agreement ”).
The Borrower has requested that the
Lenders (a) waive certain Events of Default due to the failure
(i) by the Parent and its Subsidiaries to comply with the
Leverage Ratio set forth in Section 5.04 of the Credit
Agreement for the fiscal quarters ending September 30, 2008
and December 31, 2008 (the “ Covenant Default
”) and (ii) by the Borrower to make a scheduled payment
on December 31, 2008 (the “ Payment Default
”, and together with the Covenant Default, the “
Existing Events of Default ”), (b) extend the
maturity date of the Advances, (d) amend financial covenants
in the Credit Agreement and (e) amend certain other provisions
contained in the Credit Agreement and the Note pursuant to the
terms of this Amendment. Subject to the terms and conditions set
forth herein, the Lenders party hereto are willing to agree to such
modifications.
NOW, THEREFORE, for good and
valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, the parties hereto agree as
follows:
1. Capitalized Terms . All
capitalized terms used and not defined herein shall have the
meanings assigned thereto in the Credit Agreement.
2.
Acknowledgement of New Administrative Agent and Collateral
Agent . By letter dated on or around November 5, 2008 (the
“ Resignation Letter ”), Wachovia Bank, National
Association (“ Wachovia ”) provided notice to
the Lenders of its resignation as Administrative Agent and
Collateral Agent pursuant to Section 7.06 of the Credit
Agreement. Because no successor Administrative Agent and Collateral
Agent was appointed, Wachovia’s resignation as Administrative
Agent and Collateral Agent became effective as of the forty-fifth
(45 th ) day after the date of the
Resignation Letter (the “ Resignation Effective Date
”). Accordingly, as of the Resignation Effective Date,
Wachovia was discharged from all duties and obligations under
the
Loan Documents, and the Required Lenders were
required to fulfill all duties of the Administrative Agent and
Collateral Agent as of such time. As of March 3, 2009,
Wilmington Trust has been appointed by the Required Lenders as the
successor Administrative Agent and Collateral Agent. From and after
such date, Wilmington Trust shall be, and shall be deemed to be,
the Administrative Agent and Collateral Agent under the Credit
Agreement and the other Loan Documents. The Loan Documents are
hereby amended such that each and all references in the Loan
Documents to “Wachovia Bank, National Association” or
“Wachovia” in its capacity as Administrative Agent or
Collateral Agent including, without limitation, in Sections 7.03
and 7.10 of the Credit Agreement, shall be deemed to be a reference
to Wilmington Trust, in its capacity as Administrative Agent or
Collateral Agent, as applicable. For the avoidance of doubt, with
respect to the Intercreditor Agreement, the term “Collateral
Agent” as used in this section shall mean the Second Lien
Collateral Agent. All correspondence to Wilmington Trust in
connection with any Loan Document, including, without limitation,
pursuant to Section 9.02 of the Credit Agreement, shall be
sent to:
Wilmington Trust FSB
246 Goose Lane, Suite 105
Guilford, CT 06437
Attention: Joseph O’Donnell, Vice
President
Telephone No. (203) 453-4130
Facsimile: (203) 453-1183
with a copy to:
Ropes & Gray LLP
1211 Avenue of the Americas
New York, New York 10036
Attention: Mark R. Somerstein,
Esq.
Telephone No. (212) 841-8814
Facsimile: (646) 728-1663
3. Waiver of Events of
Default . Pursuant to Section 9.01 of the Credit
Agreement and subject to the terms and conditions hereof,
including, without limitation, the conditions to effectiveness set
forth in Section 7 of this Amendment, (a) the
Administrative Agent and the Lenders hereby waive any Defaults and
Events of Default arising under Sections 6.01(a) and
(c) of the Credit Agreement as a result of any breach
that may have occurred solely as a result of the Existing Events of
Default and (b) the parties hereto hereby waive the
requirement in Section 7.06 of the Credit Agreement
that a successor Agent have a combined capital and surplus of at
least $250,000,000.
4. Amendments to Credit
Agreement . Pursuant to Section 9.01 of the Credit
Agreement and effective subject to the terms and conditions hereof,
including without limitation, the conditions to effectiveness set
forth in Section 7 hereof, the Lenders hereby agree and
are deemed to consent to the following amendments:
(a) Section 1.01 (“
Definitions ”) of the Credit Agreement shall be
amended by adding in alphabetical order the following defined terms
and the corresponding definitions thereof:
“ Fifth
Amendment ” means that certain Fifth Amendment to
this Agreement, dated as of March 12, 2009.
“ Fifth Amendment
Effective Date ” has the meaning ascribed to such
term in the Fifth Amendment.
“ Warrants
” means those certain Warrants issued by the Parent from time
to time pursuant to the Fifth Amendment, in each case in form and
substance satisfactory to the administrative agent for the First
Lien Facilities and the Required Lenders hereunder, and as may be
amended from time to time as permitted under the Intercreditor
Agreement.
“ Wilmington
” means Wilmington Trust FSB.
(b) Section 1.01 (“
Definitions ”) of the Credit Agreement shall be
amended by deleting the definitions of “Applicable
Margin” and “Leverage Ratio” in their
entirety.
(c) Section 1.01 (“
Definitions ”) of the Credit Agreement shall be
amended by deleting the definitions of “Base Rate”,
“Business Day”, “Change of Control”,
“Fee Letter”, “Interest Payment Date”,
“Permitted Acquisitions” and “Termination
Date” in their entirety and substituting, in lieu thereof,
the following:
“Base
Rate” means a fluctuating interest
rate per annum in effect from time to time, which rate per annum
shall at all times be equal to the higher of: (a) the rate of
interest established by Wilmington Trust FSB from time to time as
its prime rate; and (b) 1 / 2 of 1% per annum above the
Federal Funds Rate. The Base Rate is not intended to be nor will it
necessarily be the lowest rate of interest extended by Wilmington
Trust FSB to its customers.
“Business
Day” means a
day of the year on which banks are not required to or authorized by
law to close in New York, New York and, if the applicable Business
Day related to any Eurodollar Rate Advances, on which dealings are
carried on in the London interbank market.
“Change of
Control” means
the occurrence of any of the following: (a) any Person or two
or more Persons (other than any Permitted Holders) acting in
concert shall have acquired beneficial ownership (within the
meaning of Rule 13d-3 of the SEC under the Securities Exchange Act
of 1934), directly or indirectly, of Voting Interests of the Parent
(or other securities convertible into such Voting Interests)
representing 35% or more of the combined voting power of all Voting
Interests of the Parent; or (b) during any period of up to 24
consecutive months, commencing before or after the date of this
Agreement, Continuing Directors shall cease for any reason to
constitute a majority of the board of directors of the Parent; or
(c) any Person or two or more Persons acting in concert shall
have acquired by contract or otherwise, or shall have entered into
a contract or arrangement that, upon consummation, will result in
its or their acquisition of the power to exercise, directly or
indirectly, a controlling influence over the management or policies
of the Parent; or (d) the Parent shall cease to own 100% of
the Equity Interests in the Borrower; or (e) any
“Change of Control” (or equivalent event) set
forth in the Permitted Refinancing Debt Documents shall have
occurred. Notwithstanding the foregoing and subject to the
Intercreditor Agreement, the issuance or exercise of the Warrants
by the Lenders shall not be deemed a Change of Control.
“Fee
Letter” means
the fee letter dated as of March 3, 2009, among Wilmington,
the Borrower and the Parent.
“ Interest Payment
Date ” means, (A) up to the Fifth Amendment
Effective Date, (i) with respect to any Base Rate Advances,
each March 31, June 30, September 30 and
December 31 of each year and on the date such Base Rate
Advance shall be converted or paid in full, and (ii) with
respect to any Eurodollar Rate Advances, the last day of each
Interest Period applicable to such Loan and, if such Interest
Period has a duration of more than three months, on each last day
of a calendar quarter that occurs during such Interest Period and
on the date such Eurodollar Rate Advance shall be Converted or paid
in full, in each case, as further set forth in
Section 2.07(a)(i) and (ii) and (B) on the Fifth
Amendment Effective Date and thereafter, with respect to both Base
Rate Advances and Eurodollar Advances, each March 31,
June 30, September 30 and December 31 of each
year.
“ Permitted
Acquisition ” has the meaning specified in
Section 5.02(f)(vii) of this Agreement prior to the Fifth
Amendment Effective Date. As of the Fifth Amendment Effective Date,
there shall be no Permitted Acquisitions permitted.
“ Termination
Date ” means the earlier of (a) the date of the
acceleration of the Advances pursuant to Section 6.01 and
(b) December 30, 2011.
(d) Section 2.06 (“
Prepayment s”) of the Credit Agreement is hereby
amended by deleting subsection (b)(i) in its entirety and
substituting, in lieu thereof, the following:
“(i) The
Borrower, shall, on the 120 th day following the end of each
Fiscal Year, prepay an aggregate principal amount of the Advances
comprising part of the same Borrowings in an amount equal to 75% of
the amount of Excess Cash Flow for such Fiscal Year. Each such
prepayment shall be applied to reduce the principal amount of the
outstanding Advances of each of the Lenders on a pro
rata basis based upon the outstanding Advances owing to each
such Lender.”
(e) Section 2.07 (“
Interest ”) of the Credit Agreement is hereby amended
by deleting such Section in its entirety and substituting in lieu
thereof the following:
“ Interest . (a)
Scheduled Interest . The Borrower shall pay interest on the
unpaid principal amount of each Advance owing to each Lender from
the date of such Advance until such principal amount shall be paid
in full, at the following rates per annum provided
however , that, in connection with any Interest Payment Date
occurring after the Fourth Amendment Effective Date and before the
Fifth Amendment Effective Date (except for the Interest Payment
Date on which the Payment Default occurred), a portion of the
interest owing on such Interest Payment Date shall be deferred as
follows: (i) for Eurodollar Rate Advances, 2.00% of the
aggregate Applicable Margin for Eurodollar Rate Advances shall be
deferred or (b) for Base Rate Advances, 2.00% of the aggregate
Applicable Margin for Base Rate Advances shall be deferred (in
either case, a “ Deferred Interest Amount ”) and
(ii) the aggregate principal amount of the Loans shall be
deemed to be automatically increased by an amount equal to the
Deferred Interest Amount owing on such Interest Payment Date:
provided further , that in connection with
(i) the Interest Payment Date on which the Payment Default
occurred and (ii) any Interest
Payment Date occurring on or after the Fifth
Amendment Effective Date, 100% of the interest owing on such
Interest Payment Date shall be deferred (a “ Deferred
Interest Amount ”) and the aggregate principal amount of
the Loans shall be deemed to be automatically increased by an
amount equal to all of the interest owing on such Interest Payment
Date. For the avoidance of doubt and subject to the Intercreditor
Agreement, in no event shall the Borrower make any cash payments
hereunder until payment in full and cash collateralization in full
of the First Lien Obligations and the termination of the First Lien
Facilities.
(1) Base Rate Advances .
During such periods as such Advance is a Base Rate Advance,
(A) until the Fifth Amendment Effective Date, a rate per annum
equal at all times to the sum of (i) the Base Rate in effect
from time to time plus (ii) the Applicable Margin in
effect from time to time, and (B) on the Fifth Amendment
Effective Date and thereafter, a rate per annum equal at all times
to 15.00% per annum, in each case, payable in arrears
quarterly on the last day of each March, June, September and
December during such periods and on the date such Base Rate Advance
shall be Converted or paid in full.
(2) Eurodollar Rate Advances
. During such periods as such Advance is a Eurodollar Rate Advance,
(A) until the Fifth Amendment Effective Date, a rate per annum
equal at all times during each Interest Period for such Advance to
the sum of (i) the Eurodollar Rate for such Interest Period
for such Advance plus (ii) the Applicable Margin in
effect on the first day of such Interest Period, payable in arrears
on the last day of such Interest Period and, if such Interest
Period has a duration of more than three months, on each last day
of a calendar quarter that occurs during such Interest Period and
on the date such Eurodollar Rate Advance shall be Converted or paid
in full and (B) on the Fifth Amendment Effective Date and
thereafter, a rate per annum equal at all times to 15.00% per
annum, in each case, payable in arrears quarterly on the last day
of each March, June, September and December during such periods and
on the date such Eurodollar Rate Advance shall be Converted or paid
in full.
(b) Default Interest . Upon
the occurrence and during the continuance of an Event of Default,
the Administrative Agent may, and upon the request of the Required
Lenders shall, require that the Borrower pay interest ( “
Default Interest” ) on (i) the unpaid
principal amount of each Advance owing to each Lender, payable in
arrears on the dates referred to in clause (i) or (ii) of
Section 2.07(a), as applicable, and on demand, at a rate per
annum equal at all times to 2% per annum above the rate per
annum required to be paid on such Advance pursuant to clause
(i) or (ii) of Section 2.07(a), as applicable and
(ii) to the fullest extent permitted by applicable law, the
amount of any interest, fee or other amount payable under this
Agreement or any other Loan Document to any Agent or any Lender
that is not paid when due, from the date such amount shall be due
until such amount shall be paid in full, payable in arrears on the
date such amount shall be paid in full and on demand, at a rate per
annum equal at all times to 2% per annum above the rate per
annum required to be paid, in the case of interest, on the Type of
Advance on which such interest has accrued pursuant to clause
(i) or (ii) of Section 2.07(a), as applicable, and,
in all other cases, on Base Rate Advances pursuant to clause
(i) of Section 2.07(a); provided, however, that
following the acceleration of the Advances, or the giving of notice
by the Agent to accelerate the Advances, pursuant to
Section 6.01, Default Interest shall accrue and be payable
hereunder whether or not previously required by the Administrative
Agent.
(c) Notice of Interest Period and
Interest Rate . Prior to the Fifth Amendment Effective Date,
promptly after receipt of a Notice of Borrowing pursuant to
Section 2.02(a), a notice of Conversion pursuant to
Section 2.09 or a notice of selection of an Interest Period
pursuant to the terms of the definition of “Interest
Period”, the Administrative Agent shall give notice to the
Borrower and each Lender of the applicable Interest Period and the
applicable interest rate determined by the Administrative Agent for
purposes of clause (a)(i) or (a)(ii) above. On the Fifth Amendment
Effective Date and thereafter, the Borrower shall not be permitted
any further Notices of Borrowing, Notices of Conversion or notices
of selection of an Interest Period.”
(f) Section 2.09(a) (“
Conversion of Advances ”) of the Credit Agreement is
hereby amended by deleting such subsection in its entirety and
substituting in lieu thereof the following:
“(a) Optional . Prior
to the Fifth Amendment Effective Date, the Borrower may on any
Business Day, upon notice given to the Administrative Agent not
later than 11:00 A.M. (Charlotte, North Carolina time) on the third
Business Day prior to the date of the proposed Conversion and
subject to the provisions of Sections 2.07 and 2.10, Convert all or
any portion of the Advances of one Type comprising the same
Borrowing into Advances of the other Type; provided,
however, that any Conversion of Eurodollar Rate Advances into
Base Rate Advances shall be made only on the last day of an
Interest Period for such Eurodollar Rate Advances, any Conversion
of Base Rate Advances into Eurodollar Rate Advances shall be in an
amount not less than the minimum amount specified in
Section 2.02(b), no Conversion of any Advances shall result in
more separate Borrowings than permitted under Section 2.02(b)
and each Conversion of Advances comprising part of the same
Borrowing under shall be made ratably among the Lenders in
accordance with their Commitments or Advances. Each such notice of
Conversion shall, within the restrictions specified above, specify
(i) the date of such Conversion, (ii) the Advances to be
Converted and (iii) if such Conversion is into Eurodollar Rate
Advances, the duration of the initial Interest Period for such
Advances. Each notice of Conversion shall be irrevocable and
binding on the Borrower. On the Fifth Amendment Effective Date and
thereafter, the Borrower shall not be permitted any further Notices
of Conversion or notices of selection of an Interest
Period.”
(g) Section 2.11(c) (“
Payment and Computations ”) of the Credit Agreement is
hereby amended by deleting such subsection in its entirety and
substituting in lieu thereof the following:
“Prior to the Fifth Amendment
Effective Date, all computations of interest based on the Base Rate
shall be made by the Administrative Agent on the basis of a year of
365 or 366 days, as the case may be, and all computations of
interest based on the Eurod
