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EXHIBIT 4.2
WAIVER AND THIRD AMENDMENT dated as of May 30, 1997 (this "Third
Amendment"), to the AMENDED AND RESTATED CREDIT AGREEMENT, dated as of November
19, 1996 (as amended, supplemented or otherwise modified from time to time, the
"Credit Agreement"), among XXXXXX COMMUNICATIONS CORPORATION, a Delaware
corporation (the "Borrower"), the lenders from time to time party thereto (the
"Lenders"), THE UNION BANK OF CALIFORNIA, N.A., as Agent.
WITNESSETH:
WHEREAS, on the terms set forth herein the parties hereto wish to waive
and amend certain negative covenants and other provisions contained in the
Credit Agreement (but not subsection 2.6 of the Credit Agreement) to permit the
sale by certain subsidiaries of the Borrower to DP Media of Martinsburg, Inc.
of television station WSHE(TV) pursuant to an Asset Purchase Agreement dated as
of December 12, 1996, as amended (the "Martinsburg Transaction"), which
transaction is described in further detail in Exhibit A attached hereto;
NOW, THEREFORE, in consideration of the premises and of the mutual
agreements herein contained, the parties hereto agree as follows:
1. Definitions. Unless otherwise defined herein, terms defined in the
Credit Agreement shall be used as so defined.
2. Waivers of Credit Agreement. Subsections 6.4 and 6.7 of the Credit
Agreement are hereby waived in respect of the Martinsburg Transaction.
3. Amendments to Credit Agreement.
A. Schedule 1.1D of the Credit Agreement is hereby amended by
replacing the information with respect to WSHE(TV) as follows:
=================================================================================================
Station Type Owner License
Subsidiary
-------------------------------------------------------------------------------------------------
WSHE(TV) inTV Affiliated Xxxxxx Communications of n/a
Television Washington-60, Inc. (DP
Media of Martinsburg, Inc.)
=================================================================================================
B. Schedule 3.1(e) of the Credit Agreement is hereby amended by
replacing the information with respect to WSHE (TV) as follows:
Licensee: DP Media of Martinsburg, Inc.
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C. Schedule 3.1(f) of the Credit Agreement is hereby amended by
replacing the information with respect to WSHE(TV) as follows:
===================================================================================
Station Type Owner License
Subsidiary
-----------------------------------------------------------------------------------
WSHE(TV) inTV Affiliated DP Media of Martinsburg, n/a
Television Inc.
===================================================================================
4. Effective Date. This Third Amendment will become effective as of the
date hereof upon its execution by the Borrower and the Lenders in accordance
with the terms of the Credit Agreement.
5. Representations and Warranties. The Borrower represents and warrants
to each Lender that as of the effective date of this Third Amendment (a) this
Third Amendment constitutes the legal, valid and binding obligation of the
Borrower, enforceable against it in accordance with its terms, except as such
enforcement may be limited by bankruptcy, insolvency, fraudulent conveyances,
reorganization, moratorium or similar laws affecting creditors' rights
generally, by general equitable principles (whether enforcement is sought by
proceedings in equity or at law) and by an implied covenant of good faith and
fair dealing, (b) the representations and warranties made by the Loan Parties
in the Loan Documents are true and correct in all material respects on and as
of the date hereof (except to the extent that such representations and
warranties are expressly stated to relate to an earlier date, in which case
such representations and warranties shall have been true and correct in all
material respects on and as of such earlier date) and (c) no Default or Event
of Default shall have occurred and be continuing as of the date hereof.
6. Continuing Effect. Except as expressly waived or amended hereby, the
Credit Agreement shall continue to be and shall remain in full force and effect
in accordance with its terms.
7. GOVERNING LAW. THIS THIRD AMENDMENT SHALL BE GOVERNED BY, AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
8. Counterparts. This Third Amendment may be executed by the parties
hereto in any number of separate counterparts and all of said counterparts
taken together shall be deemed to constitute one and the same instrument.
9. Payment of Expenses. The Borrower agrees to pay and reimburse the
Agent for all of its out-of-pocket costs and reasonable expenses incurred in
connection with this Third Amendment, including, without limitation, the
reasonable fees and disbursements of counsel to the Agent.
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IN WITNESS WHEREOF, the parties hereto have caused this Third Amendment
to be duly executed and delivered by their properly and duly authorized officers
as of the day and year first above written.
XXXXXX COMMUNICATIONS
CORPORATION
By: /s/ Xxxxxx Tele
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Title: Treasurer
UNION BANK OF CALIFORNIA, N.A., as
Agent
By: /s/ Xxxxxxxxx X. Xxxx
--------------------------------
Title: Vice President
THE BANK OF NEW YORK
By: /s/ Xxxxxxxx X. Xxxx
---------------------------------
Title: AVP
CIBC, INC.
By: /s/ Wood Gundy
---------------------------------
Title: Director, CIBC Wood Gundy
Securities Corp., as Agent
Bank Boston, N.A.
By: /s/ Xxxx X. Xxxxxx
---------------------------------
Title: Asst. VP
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XXXXX XXXXX XXXX XX XXXXX
XXXXXXXX
By: /s/
---------------------------------
Title: SVP
ABN-AMRO BANK, N.V.
ABN AMRO NORTH AMERICA, INC.
By: /s/
---------------------------------
Title: VP GVP
BANK OF AMERICA ILLINOIS
By: /s/ Xxxx X. Xxxxx
---------------------------------
Title: Xxxx X. Xxxxx
Vice President
BANK OF MONTREAL
By: /s/
---------------------------------
Title: Director
XXXXXXX BANK, N.A.
By: /s/
---------------------------------
Title: Executive Vice President
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FLEET NATIONAL BANK
By: /s/ Xxxx Bunier
---------------------------------
Title: Assistant Vice President
LTCB TRUST COMPANY
By: /s/
---------------------------------
Title: Executive Vice President
THE SUMITOMO BANK, LIMITED
By: /s/ Xxxxx X. Xxxxxxx, Xx.
---------------------------------
Title: Xxxxx X. Xxxxxxx, Xx.
Vice President & Mgr.
By: M. Xxxxxxx Xxxxxxx
---------------------------------
Title: Vice President
SUNTRUST BANK, CENTRAL FLORIDA, N.A.
By: /s/ Xxxxx X. Xxxxxxx
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Title: V.P.
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EXHIBIT A
TO: Xxxxxxxxx Xxxx
FROM: Xxxxxxx Xxxxxxxx
DATE: May 28, 1997
SUBJECT: Sale of WSHE(TV)
As we discussed, this memorandum summarizes the circumstances surrounding the
sale by Xxxxxx Communications Corporation (the "Company") of WSHE(TV) and the
pending acquisition of WVVI-TV. Subsidiaries of the Company acquired the FCC
authorization for WSHE(TV) and certain other assets of the station for
$1,951,000 in October of 1995, WSHE(TV) is licensed to Martinsburg, West
Virginia, a community of approximately 14,000 that is located 65 miles from
Washington, D.C. At the time of the acquisition, WSHE(TV) had ceased broadcast
operations. The Company spent approximately $519,000 for the broadcast
equipment and construction expenses required to rebuild the station's
transmission facilities. WSHE(TV)'s broadcast operations were resumed in
September of 1996.
In contrast, WWVI-TV is an operating station licensed to Manassas, Virginia.
Manassas is located 26 miles from Washington, D.C., the nation's 7th largest
market, and has a population of more than 28,0000. WVVI-TV's proximity to
downtown Washington and the Northern Virginia and Maryland suburbs will greatly
enhance the Company's broadcast presence in the Washington metropolitan area.
WVVI-TV also provides a stronger over-the-air signal to more cable television
systems, thereby enhancing the Company's must-carry rights in the greater
Washington, D.C. market.
Under certain restrictions contained in the FCC's multiple ownership rules, the
Company cannot simultaneously own controlling interests in WSHE(TV) and
WVVI-TV. Consequently, the Company has agreed to sell WSHE(TV) to DP Media of
Martinsburg, Inc. ("DP Media") for a purchase price of $2,470,000, which
represents the sum of the Company's acquisition costs and capital expenditures
devoted to WSHE(TV). The purchase price is to be funded by a fully secured note
by DP Media to Xxxxxx Communications of Washington-60, Inc. In addition, DP
Media will enter into an Affiliation Agreement with the Company's Infomall
TV Network pursuant to which WSHE(TV) will carry the Company's inTV program
service. The Affiliation Agreement provides that DP Media will broadcast the
Company's inTV programming in its entirety generally from 7 a.m. to 10 p.m. in
exchange for a monthly payment from the Company.
The closing of this sale is scheduled for Friday, May 30. Thank you for your
attention to this matter.
