FIRST AMENDMENT TO AMENDED AND RESTATED
CREDIT AGREEMENT
This FIRST AMENDMENT TO AMENDED AND RESTATED CREDIT
AGREEMENT (this "First Amendment") is entered into effective as
of the 3rd day of January, 1996, by and among XXXXXX XXXXXX,
INC., a Tennessee corporation ("Xxxxxx"), SUNTRUST BANK,
NASHVILLE, N. A. (formerly known as Third National Bank in
Nashville), a national banking association ("SunTrust"), the
other banks and lending institutions listed on the signature
pages hereof and any assignees of SunTrust or such other banks
and lending institutions that become "Lenders" (SunTrust and such
other banks, lending institutions and assignees are referred to
collectively herein as the "Lenders"), and SUNTRUST BANK,
NASHVILLE, N. A. (formerly known as Third National Bank in
Nashville), in its capacity as agent for the Lenders (the
"Agent").
WHEREAS, Lenders and Agent have entered into an Amended and
Restated Credit Agreement dated as of December 13, 1995 with
Xxxxxx (as amended or otherwise modified from time to time, the
"Credit Agreement") wherein Lenders agreed to extend certain
financial accommodations to Xxxxxx;
WHEREAS, Xxxxxx has requested that Lenders amend the Credit
Agreement, and Lenders are willing to modify the Credit
Agreement, upon the terms contained herein.
NOW, THEREFORE, in consideration of the premises and for
other good and valuable consideration, the receipt and adequacy
of which are mutually acknowledged, the parties hereby amend the
Credit Agreement as follows:
1. Defined Terms. All capitalized terms not otherwise
defined in this First Amendment, including its preamble and
recitals, shall have the meanings set forth in the Credit
Agreement. All capitalized terms shall be equally applicable to
the singular and plural forms thereof and to any gender form
thereof.
2. Dividend Amendment. Section 11.04 of the Credit
Agreement is hereby deleted in its entirety and the following
inserted in its place:
"Section 11.04. Dividends, Etc. Declare or pay any dividend
on its capital stock, or make any payment to purchase, redeem,
retire or acquire any of its Subordinated Debt or capital stock
or any option, warrant, or other right to acquire such
Subordinated Debt or capital stock, other than:
(a) dividends payable solely in shares of capital stock;
(b) cash dividends declared and paid, and all other such
payments made, after March 31, 1995 in an aggregate
amount at any time not to exceed the sum of (i)
$5,000,000, plus (ii) fifty percent (50%) of
Consolidated Net Income (or minus one hundred percent
(100%) of Consolidated Net Loss) earned during Xxxxxx'x
1995 fiscal year and thereafter on a cumulative basis
(such period to be treated as one accounting period);
(c) dividends payable solely to Xxxxxx by any Subsidiary of
Xxxxxx, provided that the payment of such dividends to
Xxxxxx shall in no event affect the limitations imposed
upon Xxxxxx as set forth in Section 11.04(b);
(d) redemption of Subordinated Debt upon the exercise of
conversion rights contained in the Indenture; and
(e) payment of Subordinated Debt at maturity as set forth
in the Indenture,
provided, however, no such dividend or other payment may be
declared or paid pursuant to Section 11.04(b) unless (A) the full
amount of any mandatory prepayment required by Article II has
been made, and (B) no Default or Event of Default exists at the
time of such declaration or payment, or would exist as a result
of such declaration or payment."
3. Note Purchase Agreement Amendment. Section 9.07(p) and
Section 9.07 (q) of the Credit Agreement are hereby deleted in
their entirety and the following inserted in their place:
"(p) Asset sales. At any time that the aggregate amount of
Asset Sales made by the Consolidated Companies after December 13,
1995 exceeds $2,500,000 (based on the Asset Values), prompt
notice of any additional Asset Sale or related series of Asset
Sales involving Asset Values of $100,000 or more;
(q) Note Purchase Agreement. True and complete copies of
that certain Note Purchase Agreement by and among Xxxxxx, The
Prudential Insurance Company of America and MetLife dated as of
January 3, 1996, together with true and complete copies of any
amendments thereto, promptly upon execution of same; and
(r) Other Information. With reasonable promptness, such
other information about the Consolidated Companies as the Agent
or any Lender may reasonably request from time to time."
4. Senior Debt Amendment. The definition of Senior Debt
set forth in Article I of the Credit Agreement is hereby deleted
in its entirety and the following inserted in its place:
""Senior Debt" shall mean other Indebtedness of Xxxxxx not
to exceed $62,000,000, which Indebtedness shall be (a) on a
parity with the obligations of Xxxxxx and any other Credit Party
arising under this Agreement, the Revolving Credit Notes, the
Guaranty Agreement and all other Credit Documents, and (b) issued
upon terms and conditions (including without limitation matters
regarding interest rates, payment terms, maturities, amortization
schedules, covenants, defaults and remedies) satisfactory in all
respects to the Agent and the Required Lenders, as evidenced by
the written approval of the Agent and Required Lenders; provided,
however that the Consolidated Companies, Lenders and Agent
acknowledge and agree that (i) the terms and conditions of the
Senior Debt shall be no more restrictive than the terms and
conditions of the Revolving Loans, (ii) all Senior Debt shall
provide for the payment of interest only for at least seven (7)
years from the date of issuance (except for Senior Debt in the
principal amount not to exceed $15,000,000 owed to MetLife, which
shall provide for the payment of interest only for at least three
and one-half (3 1/2) years from the date of issuance), and (iii)
the average life of the Senior Debt shall on the date of issuance
be greater than seven (7) years. In no event shall the Senior
Debt be deemed to include the SunTrust Letter of Credit Facility
or the National City Bank, Kentucky (formerly known as First
National Bank of Louisville) Letter of Credit Facility. The
Xxxxxx Debt is included in and shall be a part of the Senior
Debt."
5. Guarantors. Guarantors join in the execution of this
First Amendment for the purpose of consenting to the terms of
this First Amendment, to acknowledge their agreement that the
terms of the Guaranty Agreement shall remain in full force and
effect and to state that no event has occurred and no claim,
offset or other condition exists that would relieve them of their
obligations to Lenders under the Guaranty Agreement.
6. Authority. Xxxxxx and Guarantors represent that the
terms of this First Amendment have been authorized by a duly
adopted resolution of the Board of Directors of Xxxxxx and
Guarantors, respectively.
7. No other Modification. Except as herein modified and
amended, the terms and conditions of the Credit Agreement shall
remain in full force and effect, and nothing herein is intended
to, nor shall it, release, diminish or waive any rights of
Lenders under the Credit Agreement or any other loan documents
executed in connection therewith.
8. Governing Law. This First Amendment shall be governed
by and construed in accordance with the laws of the State of
Tennessee.
9. Counterparts. This Agreement may be executed in
multiple counterparts, and all such executed counterparts shall
constitute the same agreement. It shall not be necessary that the
signatures of all parties be contained on any one counterpart. It
shall be necessary to account for only one such counterpart in
proving the existence or terms of this Agreement.
THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK
IN WITNESS WHEREOF, the parties hereto have executed this
First Amendment as of the date first written above.
XXXXXX XXXXXX, INC.
By: /s/ Xxx X. Xxxxxx
Title: Executive Vice President
SUNTRUST BANK, NASHVILLE, N. A.
(formerly known as Third National
Bank in Nashville), As Agent
By: /s/ J. Xxxx Xxxxxx
Title: First Vice President
SUNTRUST BANK, NASHVILLE, N. A.
(formerly known as Third National
Bank in Nashville)
By: /s/ J. Xxxx Xxxxxx
Title: First Vice President
NATIONAL CITY BANK, KENTUCKY
(formerly known as First National
Bank of Louisville)
By: /s/ Xxxxxxx X. Xxxx
Title: Sr. Vice President
FIRST AMERICAN NATIONAL BANK
By: /s/ Xxxxx X. Xxxx
Title: Senior Vice President
NATIONSBANK OF TEXAS, N.A.
By: /s/ Xxx X. Xxxxx
Title: Vice President
CREDITANSTALT - BANKVEREIN
By: /s/ Xxxxxx Xxxxxxxx
Title: Sr. Vice President
By: /s/ Xxxxx Xxxx
Title: Sr. Associate
GUARANTORS:
WORD, INCORPORATED
By: /s/ Xxx X. Xxxxxx
Title: Secretary
PPC, INC.
By: /s/ Xxx X. Xxxxxx
Title: Secretary
EDITORIAL CARIBE, INC.
By: /s/ Xxx X. Xxxxxx
Title: Secretary
MORNINGSTAR RADIO NETWORK, INC.
By: /s/ Xxx X. Xxxxxx
Title: Secretary
XXXXXX WORD LIMITED (formerly known
as Word (UK) Limited)
By: /s/ Xxx X. Xxxxxx
Title: Director
WORD COMMUNICATIONS, LTD.
By: /s/ Xxx X. Xxxxxx
Title: Secretary
WORD DIRECT, INC.
By: /s/ Xxx X. Xxxxxx
Title: Secretary
WORD DIRECT PARTNERS, L.P.
By: Word Direct, Inc., as general partner
By: /s/ Xxx X. Xxxxxx
Title: Secretary
THE X. X. XXXXXX COMPANY
By: /s/ Xxx X. Xxxxxx
Title: Secretary
855763 ONTARIO LIMITED
By: /s/ Xxx X. Xxxxxx
Title: Secretary
