XXXXXXXXXX COMMUNICATIONS COMPANY
000 00xx Xxxxxx, X.X.
Xxxxx 000
Xxxxxxxxxx, X.X. 00000
Dated as of: September 30, 1997
BankBoston, N.A. Bank of Montreal
(f/k/a The First National Bank of Boston), Mellon Bank, N.A.
individually and as Agent
Re: Modification No. 4 to Revolving Credit Agreement
Ladies and Gentlemen:
Reference is made to the Revolving Credit Agreement, dated as of
April 16, 1996 (as amended, modified or supplemented from time to time
and in effect, the "Credit Agreement"), by and among Xxxxxxxxxx
Communications Company (the "Borrower"), the financial institutions
party thereto (the "Banks") and BankBoston, N.A. (f/k/a The First
National Bank of Boston), as agent for the Banks (the "Agent"). All
capitalized terms used herein and not defined herein shall have the
meanings specified for such terms in the Credit Agreement.
The Borrower has requested the Agent and the Banks to amend the
Credit Agreement in certain respects.
The Agent and the undersigned Majority Banks are willing to amend
the Credit Agreement on the terms and subject to the conditions set
forth in this letter agreement (this "Modification").
Accordingly, the parties hereto hereby agree as follows:
ARTICLE I
MODIFICATION TO CREDIT AGREEMENT
SECTION 1.1. The Credit Agreement is hereby amended as follows:
(a) Section 1.1 of the Credit Agreement is hereby amended as
follows:
(1) The definition of "Investments" is hereby amended by
inserting the following ", membership interests," after the words
"acquisition of stock" in line 2 thereof.
(2) The definition of "Net Securities Proceeds" is hereby
amended by inserting the following words "or membership interests, as
applicable," after the words "capital stock" in each of lines 2, 5, 6,
and 14 thereof.
(3) The definition of "Permitted Acquisitions" is hereby
amended by inserting the words "or membership interest, as applicable"
after the words "capital stock" in line 2 of subsection (c) thereof .
(4) The definition of "Pledge Agreement" is hereby amended
by adding the following words ", and/or the Pledge of Membership
Interests Agreement, dated as of September 30, 1997, to be executed and
delivered to the Agent by the Borrower and each of the limited liability
company subsidiaries of the Borrower, as applicable." after the words
"the Closing Date" in the last line thereof.
(5) Subsection (a) of the definition of "Restricted
Payments" is hereby amended by inserting the words "or units of
membership interest of a limited liability company, as applicable,"
after the words "capital stock" in each of lines 2, 3, 4, and 7
thereof, and after the words "common stock" in line 3 thereof.
(6) The definition of "Subsidiary" is hereby amended by
inserting the words "limited liability company, as applicable" after the
words "any corporation," in line 1 thereof.
(7) The definition of "Voting Stock" is hereby amended by
inserting the following ", membership interest," after the word "Stock"
in line 1 thereof.
(b) Section 4 of the Credit Agreement is hereby amended and
restated in its entirety as follows:
4. SECURITY. The Obligations shall be secured by a
perfected first priority security interest in all of the outstanding
capital stock or membership interests, as applicable, of the Borrower
and its Subsidiaries, whether now owned or hereafter acquired, pursuant
to the terms of the Pledge Agreement and the Pledge of Membership
Interests Agreement, or, with respect to the Majority-Owned
Subsidiaries, all of the outstanding capital stock of such Subsidiary
owned by the Borrower or any of its Subsidiaries."
(c) Section 5.1(a) of the Credit Agreement is hereby amended and
restated in its entirety to read as follows:
"(a) Formation or Incorporation; Good Standing. Each of
the Borrower and its Subsidiaries (i) is a corporation, or in the case
of KTUL LLC, KATV LLC and WCIV LLC, a limited liability company, duly
organized, validly existing and in good standing under the laws of its
state of formation or incorporation, (ii) has all requisite power,
authority and legal right to own and operate its property, to lease the
property it operates as lessee and to conduct its business as now
conducted and as presently contemplated, and (iii) is in good standing
as a foreign corporation or foreign limited liability company, as
applicable, and is duly authorized to do business in each jurisdiction
where such qualification is necessary except where (x) a failure to be
so qualified would not 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 or the Borrower's ability to perform the
Obligations or (y) the Borrower or such Subsidiary has applied for
qualification to do business in such jurisdiction and such application
is pending".
(d) Section 5.1(b) of the Credit Agreement is hereby amended and
restated in its entirety to read as follows:
"Authorization. The execution, delivery and performance of
this Credit Agreement and the other Loan Documents 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 other instrument binding
upon, the Borrower or any of its Subsidiaries."
(e) Section 5.9 of the Credit Agreement is hereby amended by
inserting the following words "limited liability company agreement,"
after the words "charter documents, bylaws," in line 3 thereof.
(f) Section 5.18 is hereby amended and restated in its entirety
to read as follows:
"Capital Structure. Attached hereto as Schedule 5.18 is a
schedule showing with respect to the Borrower and each Subsidiary of the
Borrower (i) the jurisdiction in which such entity is organized; (ii)
the classes and number of authorized and outstanding shares of capital
stock or units of membership interests, as applicable, of the Borrower
and each of the Subsidiaries, and the record and beneficial owners of
the membership interests or capital stock, as applicable, of the
Borrower and each Subsidiary. All of the outstanding capital stock or
membership interests, as applicable, of the Borrower and each Subsidiary
of the Borrower has been duly authorized and issued and is fully-paid
and non-assessable; and, except as indicated in Schedule 5.18, free and
clear of any pledge, charge, lien, security interest or other
encumbrance or restriction on transfer (other than liens granted to the
Banks pursuant to the Pledge Agreement)."
(g) Section 6.5 of the Credit Agreement is hereby amended by
inserting the words "or limited liability company status, as applicable"
after the words "corporate existence" in line 3 thereof.
(h) Section 6.9(a)(ii) is hereby amended and restated in its
entirety to read as follows:
"(ii) the provisions of its charter documents and By-Laws or
limited liability company agreement, as applicable,".
(i) Section 6.18 of the Credit Agreement is hereby amended by
inserting the words "or units of membership interest, as applicable,"
after the words "capital stock" in the last line thereof.
(j) Section 7.1(k) of the Credit Agreement is hereby amended by
inserting the words "or membership interests, as applicable," after the
words "capital stock" in line 12 thereof.
(k) Section 7.3(f) is hereby amended and restated in its
entirety to read as follows:
"(f) Investments by the Borrower in the common stock or
membership interest, as applicable, of any Subsidiary of the Borrower,
and by any Subsidiary of the Borrower in the common stock or membership
interest, as applicable, of any other Subsidiary of the Borrower;".
(l) Section 9.8 is hereby amended and restated in its entirety
to read as follows: "Pledged Stock or Membership Interests. The Agent
shall have received in pledge original certificates evidencing all the
outstanding capital stock or membership interest, as applicable, of the
Borrower and each of its Subsidiaries (or, in the case of the Majority-
Owned Subsidiaries, 80% of the outstanding capital stock thereof),
together with appropriate instruments of assignment for each such
certificate duly endorsed in blank."
(m) Section 11(i) of the Credit Agreement is hereby amended by
inserting the words "or holders of membership interests, as applicable"
after the word "stockholders" in line 7 thereof.
(n) Section 11(o) is hereby amended and restated in its entirety
to read as follows: "(o) the Borrower shall, at any time, legally or
beneficially own, directly or indirectly through one or more other
Subsidiaries, less than one hundred percent (100%) of the outstanding
shares of capital stock or units of membership interests, as applicable,
of each of its Subsidiaries (or, with respect to the Majority-Owned
Subsidiaries, at least 80% of the outstanding shares of capital stock of
each Majority-Owned Subsidiary);".
ARTICLE II
CONSENT
Notwithstanding anything to the contrary in the Credit Agreement,
the Banks and the Agent hereby consent to the following: (a) the
formation under the laws of State of Delaware of three new limited
liability companies, KATV LLC, KTUL LLC, and WCIV LLC (collectively, the
"LLCs," and each an "LLC") as Subsidiaries of the Borrower; and (b) the
merger of (i) KATV Television, Inc. with and into KATV LLC; (ii) KTUL
Television, Inc. with and into KTUL LLC; and (iii) First Charleston
Corp. with and into WCIV Television, Inc.; and (iv) WCIV Television,
Inc. with and into WCIV LLC, provided that, in each case, the LLCs are
the surviving entity of such merger, and provided further that, the
membership interests of each such LLC are pledged to the Agent for the
benefit of the Banks and Agent as collateral security for the
Obligations pursuant to the Pledge of Membership Interests Agreement.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
The Borrower hereby represents and warrants to the Agent and each
of the Banks as of the date of this Modification as follows:
SECTION 3.1. Binding Effect of Documents, etc. This Modification
has been duly executed and delivered by the Borrower. The agreements
and obligations of the Borrower contained in this Modification
constitutes the legal, valid and binding obligation of the Borrower and
are enforceable against the Borrower in accordance with their respective
terms, except that (a) such enforceability may be subject to bankruptcy,
insolvency, reorganization, moratorium or other similar laws now or
hereafter in effect relating to creditors' rights and (b) the remedy of
specific performance and injunction and other forms of equitable relief
may be subject to equitable defenses and to the discretion of the court
before which any proceeding therefor may be brought.
SECTION 3.2. Authority, etc. The execution and delivery by the
Borrower of this Modification has been duly and properly authorized by
all necessary corporate or other action on the part of the Borrower and
does not (a) contravene any provision of its certificate of
incorporation, By-Laws or other comparable governing documents,
(b) conflict with, result in a breach of the terms, conditions or
provisions of, constitute a default under or result in the creation of
any lien upon any of the property of the Borrower under, any agreement
or instrument to which it is a party or by which the Borrower or its
property is bound, (c) violate or contravene any provision of any
requirement of law or any decree, license, order or judgment of any
Governmental Authority binding on the Borrower or its Subsidiaries, in
any of the foregoing cases in a manner that is reasonably likely to
result in the imposition of substantial penalties or materially and
adversely affect the financial condition, properties or business of the
Borrower and its Subsidiaries, taken as a whole or the Borrower's
ability to perform the Obligations, (d) result in or permit the
acceleration of any Indebtedness of the Borrower, or (e) require any
consents or approvals from any shareholders of the Borrower.
SECTION. 3.3. No Defaults. After giving effect to this
Modification, no Defaults or Events of Default are continuing.
ARTICLE IV
EFFECTIVENESS
This Modification shall be effective, as of the date set forth
above, upon receipt by the Agent of (a) counterparts of this Agreement
duly executed; delivered by each of the Majority Banks and the Borrower
and (b) counterparts of the Pledge of Membership Interests Agreement
duly executed and delivered by each of the Majority Banks, the Borrower,
and each LLC; (c) charter documents and limited liability company
agreements for each LLC; and (d) certificates, dated as of a recent
date, of the Secretary of State of Delaware certifying as to the
existence and good standing of each of the LLCs.
ARTICLE IV
PROVISIONS OF GENERAL APPLICATION
Except as otherwise expressly provided by this Modification, all
of the terms, conditions and provisions of the Credit Agreement and each
of the other Loan Documents remain unaltered. All of the Obligations of
the Borrower to the Agent and the Banks under the Credit Agreement and
the other Loan Documents are, by the execution and delivery by the
Borrower of this Modification, ratified and confirmed by the Borrower in
all respects. This Modification and the rights and obligations
hereunder of each of the parties hereto shall be governed by and
interpreted and determined in accordance with the laws of The
Commonwealth of Massachusetts. This Modification shall be a Loan
Document. This Modification shall be binding upon and inure to the
benefit of each of the parties hereto and their respective successors in
title and assigns. This Modification may be executed in any number of
counterparts, but all of such counterparts shall together constitute but
one and the same agreement. In making proof of this Modification, it
shall not be necessary to produce or account for more than one
counterpart thereof signed by each of the parties hereto.
If you are in agreement with the foregoing, please sign the
enclosed counterparts of this Modification and return such counterparts
to the undersigned, whereupon this Modification shall become a binding
agreement between the undersigned, the Agent and the Banks on and as of
the date first above written.
Very truly yours,
XXXXXXXXXX COMMUNICATIONS
COMPANY
By: /S/ Xxxxx X. Xxxxxxxxx
--------------------------
Title: Vice President
The foregoing Modification is hereby accepted by the undersigned
Agent and Majority Banks on and as of the date first above written.
BANKBOSTON, N.A.
(f/k/a The First National Bank of Boston),
individually and as Agent
By: /S/ Xxxxx X. Xxxxxx
----------------------------------
Title: Managing Director
MELLON BANK, N.A.
By: /S/ Xxxx X. Kranefus
----------------------------------
Title: Assistant Vice President
BANK OF MONTREAL
By: /S/ X.X. Xxxxxx
----------------------------------
Title: Director
