Exhibit 4.7.1
AMENDMENT NO. 1
This Amendment No. 1 dated as of January __, 2002 (this "AMENDMENT NO.
1"), among Xxxxxx Communications Corporation, a Delaware corporation (the
"BORROWER"), the Lenders (as defined below) party hereto and the Administrative
Agent (as defined below) amends certain provisions of the Credit Agreement,
dated as of July 12, 2001 (the "CREDIT AGREEMENT"), among the Borrower, the
Lenders (as defined in the Credit Agreement), Citicorp USA, Inc., as
administrative agent for the Lenders and as collateral agent for the Secured
Parties under the Collateral Documents (in each such capacity, the
"ADMINISTRATIVE AGENT"), Union Bank of California, N.A., as syndication agent
for the Lenders, and CIBC, Inc. and General Electric Capital Corporation each as
co-documentation agents for the Lenders.
W I T N E S S E T H:
WHEREAS, the Borrower, the Lenders, the Issuers and the Administrative
Agent are parties to the Credit Agreement and, as of the date hereof, the
Lenders consenting to this Amendment No. 1 constitute the Requisite Lenders;
WHEREAS, the Borrower, the Lenders party hereto and the Administrative
Agent have agreed to make certain amendments to the Credit Agreement as set
forth herein; and
WHEREAS, pursuant to Section 11.1 (Amendments, Waiver, Etc.) of the
Credit Agreement, the consent of the Requisite Lenders is required to amend the
provisions of the Credit Agreement as set forth herein;
NOW, THEREFORE, in consideration of the foregoing, the mutual covenants
and obligations herein set forth and other good and valuable consideration, the
adequacy and receipt of which is hereby acknowledged, and in reliance upon the
representations, warranties and covenants herein contained, the parties hereto,
intending to be legally bound, hereby agree as follows:
SECTION 1. DEFINITIONS. Unless otherwise defined herein, capitalized
terms used herein shall have the meanings ascribed to such terms in the Credit
Agreement.
SECTION 2. AMENDMENTS TO CREDIT AGREEMENT. Effective as of the Closing
Date and subject to the terms and conditions set forth herein, the Credit
Agreement is hereby amended as follows:
(a) By amending Section 1.1 (Defined Terms) as follows:
(i) The definition of "CHANGE OF CONTROL" shall be
amended in its entirety to read as follows:
"CHANGE OF CONTROL" means any event,
transaction or occurrence as a result of which (i)
neither (A) the Permitted Holders nor (B) NBC and its
Affiliates owns and controls, beneficially, Stock of
the Borrower possessing the voting power under normal
circumstances to cast 51% or more of the Borrower's
Voting Stock or (ii) neither (A) the Permitted
Holders nor (B) NBC and its Affiliates has the voting
power or the contractual right to elect a majority of
the Borrower's board of directors.
(ii) The following definition shall be added in
alphabetical order:
"PERMITTED HOLDERS" means, collectively,
Xxxxxx X. Xxxxxx, his spouse, his children or other
lineal descendants (whether adoptive or biological),
and any revocable or irrevocable inter vivos or
testamentary trust or the probate estate of any such
individual, so long as one or more of the foregoing
individuals is the principal beneficiary of such
trust or probate estate.
(b) By amending clause (e) of Section 8.1 (Indebtedness) in
its entirety to read as follows:
(e) Subordinated Debt incurred by the exchange or
conversion of any existing exchangeable or convertible
Preferred Stock into Indebtedness; PROVIDED, HOWEVER, that no
such exchange or conversion shall be permitted (A) unless (x)
such Indebtedness shall be refinanced pursuant to CLAUSE (F)
below substantially concurrently therewith or (either prior to
or at the time of such exchange or conversion) the terms of
such Indebtedness shall be amended to provide that (i) no cash
interest payments shall be made in respect of such
Subordinated Debt prior to the Final Maturity Date (although
the non-cash interest rate in respect thereof may be increased
by up to two per cent. per annum) and (ii) (to the extent
deemed necessary by the Administrative Agent) no payment on
any guaranty in respect of such Subordinated Debt given by the
Restricted License Subsidiary shall be made prior to the
repayment in full of the Loan Sub-Portion and (y) the exchange
or conversion is otherwise made in accordance with the terms
of the relevant Preferred Stock Documents and (B) if a Default
or Event of Default has occurred which is continuing or would
result therefrom;
(c) By amending clause (f) of Section 8.1 (Indebtedness) in
its entirety to read as follows:
(f) Subordinated Debt which refinances the Preferred
Stock or the Subordinated Debt referred to in SECTION 8.1(E)
which provides that (i) no cash interest payments shall be
made in respect of such Subordinated Debt prior to the Final
Maturity Date and (ii) (to the extent deemed necessary by the
Administrative Agent) no payment on any guaranty in respect
thereof by the Restricted License Subsidiary shall be made
prior to the repayment in full of the Loan Sub-Portion and
which shall otherwise be on terms (including in respect of
principal amount, amortization, maturity and subordination)
which are no less favorable to the Borrower and the Lenders
than the terms of the Preferred Stock or related Subordinated
Debt being refinanced; PROVIDED, HOWEVER, that no such
Subordinated Debt shall be permitted to be incurred, issued or
assumed if a Default or Event of Default has occurred which is
continuing or would result therefrom.
(d) By amending Section 8.5 (Restricted Payments) by adding
the following new clause (c) thereto immediately prior to the proviso
at the end thereof:
(c) any Restricted Payment made as a result of any
refinancing of Indebtedness or any exchange or conversion of
Preferred Stock into Indebtedness permitted pursuant to
CLAUSES (E), (F) or (G) of SECTION 8.1;
(e) By amending Section 8.14 (Modification of Subordinated
Debt Documents and Preferred Stock Documents) by amending clause (iv)
of paragraph (a) thereof in its entirety to read as follows:
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(iv) change the redemption or prepayment provisions of such
Subordinated Debt or Preferred Stock other than to extend the dates
therefor or to reduce the premiums payable in connection therewith or
to change the notice requirements therein;
SECTION 3. CONDITIONS PRECEDENT TO THE EFFECTIVENESS OF THIS AMENDMENT
NO. 1. This Amendment No. 1 shall become effective as of the Closing Date on the
date the following conditions precedent have been satisfied (the "EFFECTIVE
DATE"):
(a) CERTAIN DOCUMENTS. The Administrative Agent shall have
received on or before the Effective Date all of the following, all of
which shall be in form and substance satisfactory to the Administrative
Agent, in sufficient executed copies for each of the Lenders:
(i) this Amendment No. 1 executed by the Borrower and
the Consent, Agreement and Affirmation of Guaranty executed by
the Subsidiary Guarantors;
(ii) an executed Acknowledgment and Consent, in the
form attached hereto as ANNEX B, from Lenders constituting the
Required Lenders; and
(iii) such additional documentation as the
Administrative Agent or the Requisite Lenders may reasonably
require.
(b) REPRESENTATIONS AND WARRANTIES. Except as, and to the
extent, affected, if at all, by the matters disclosed in the Borrower's
Form 8-K filed with the Securities and Exchange Commission on December
5, 2001 disclosing the recent arbitration and FCC actions brought by
the Borrower against NBC, each of the representations and warranties
made by the Borrower or any Guarantor in or pursuant to the Credit
Agreement and the other Loan Documents to which the Borrower or any
Guarantor is a party or by which the Borrower, or any Guarantor is
bound, shall be true and correct in all material respects, after giving
effect to the terms of this Amendment No. 1, on and as of the Effective
Date (other than representations and warranties in any such Loan
Document which expressly speak as of a different date).
(c) NO EVENTS OF DEFAULT. No Event of Default or Default shall
have occurred and be continuing on the Effective Date after giving
effect to the terms of this Amendment No. 1.
SECTION 4. REPRESENTATIONS AND WARRANTIES. The Borrower hereby
represents and warrants to the Administrative Agent and the Lenders that as of
the date hereof, (x) no Event of Default or Default under the Credit Agreement
shall have occurred and be continuing and (y) except as, and to the extent,
affected, if at all, by the matters disclosed in the Borrower's Form 8-K filed
with the Securities and Exchange Commission on December 5, 2001 disclosing the
recent arbitration and FCC actions brought by the Borrower against NBC, all of
the representations and warranties of the Loan Parties contained in Article IV
of the Credit Agreement and in any other Loan Document continue to be true and
correct in all material respects, as though made on and as of such date (other
than representations and warranties in any such Loan Document which expressly
speak as of a different date).
SECTION 5. COSTS AND EXPENSES. The Borrower agrees to pay on demand in
accordance with the terms of Section 13.3 of the Credit Agreement all costs and
expenses of the Administrative Agent in connection with the preparation,
reproduction, execution and delivery of this Amendment No. 1 and all other Loan
Documents entered into in connection herewith,
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including the reasonable fees, expenses and disbursements of Weil, Gotshal &
Xxxxxx LLP, counsel for the Administrative Agent with respect thereto.
SECTION 6. REFERENCE TO AND EFFECT ON THE LOAN DOCUMENTS.
(a) Upon the effectiveness of this Amendment No. 1, on and
after the date hereof, each reference in the Credit Agreement to "THIS
AGREEMENT", "HEREUNDER", "HEREOF" or words of like import, and each
reference in each other Loan Document, shall mean and be a reference to
the Credit Agreement as amended hereby.
(b) Except as specifically amended hereby, all of the terms of
the Credit Agreement and all other Loan Documents shall remain
unchanged and in full force and effect.
(c) The execution, delivery and effectiveness of this
Amendment No. 1 shall not, except as expressly provided herein, operate
as a amendment or waiver of any right, power or remedy of any Lender,
any Issuer or the Administrative Agent under the Credit Agreement or
any of the Loan Documents, nor constitute an amendment or waiver of any
provision of the Credit Agreement or any of the Loan Documents.
(d) This Amendment No. 1 is a Loan Document.
SECTION 7. TITLES. The Section titles contained in this Amendment No. 1
are and shall be without substantive meaning or content of any kind whatsoever
and are not a part of the agreement between the parties hereto.
SECTION 8. EXECUTION IN COUNTERPARTS. This Amendment No. 1 may be
executed and delivered in any number of counterparts and by different parties
hereto in separate counterparts, each of which when so executed and delivered
shall be deemed an original and all of which taken together shall constitute one
and the same original agreement.
SECTION 9. NOTICES. All communications and notices to the
Administrative Agent hereunder shall be given as provided in the Credit
Agreement.
SECTION 10. SEVERABILITY. If any term or provision set forth in this
Amendment No. 1 shall be invalid or unenforceable, the remainder of this
Amendment No. 1, or the application of such terms or provisions to persons or
circumstances, other than those to which it is held unenforceable, shall not in
any way be affected or impaired thereby.
SECTION 11. SUCCESSORS. The terms of this Amendment No. 1 shall be
binding upon, and shall inure to the benefit of, the parties hereto and their
respective successors or assigns.
SECTION 12. GOVERNING LAW. This Amendment No. 1 shall be interpreted,
and the rights and liabilities of the parties determined, in accordance with the
internal law of the State of New York.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the parties hereto have caused this
Amendment No. 1 to be executed by their respective officers thereunto duly
authorized, as of the date first above written.
XXXXXX COMMUNICATIONS CORPORATION,
as Borrower
By: /s/ Xxxxxx Xxxxxxxx, Xx.
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Name: Xxxxxx Xxxxxxxx, Xx.
Title: Senior Vice President,
Chief Financial Officer
and Treasurer
CITICORP USA, INC.,
as Administrative Agent
By:
-------------------------------------
Name:
Title:
CONSENT, AGREEMENT AND AFFIRMATION OF GUARANTY
Each of the undersigned Subsidiary Guarantors hereby consents to the
terms of the foregoing Amendment No. 1 in its capacity as a guarantor under the
Guaranty and agrees that the terms of this Amendment No. 1 shall not affect in
any way its obligations and liabilities under its guaranty, all of which
obligations and liabilities shall remain in full force and effect and each of
which is hereby reaffirmed.
On behalf of each of the Subsidiary
Guarantors under the Loan Documents
By:
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Name: Xxxxxx Xxxxxxxx, Xx.
Title: Vice President and Treasurer
and, with respect to America 51,
L.P., Vice President and Treasurer
of its General and Limited Partners
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ANNEX A
ACKNOWLEDGEMENT AND CONSENT
Xxxxxx Communications Corporation
000 Xxxxxxxxxx Xxxx Xxxx
Xxxx Xxxx Xxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxxx, Xx., Chief Financial Officer,
with a copy to Xxxxxxx X. Xxxxxxxx, Esq. General Counsel
Telecopy no:000-000-0000
000 Xxxxxxxxx Xxxxxx, Xxxxx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxx Xxxxx
Telecopy no: (000) 000 0000
RE: XXXXXX COMMUNICATIONS CORPORATION
Ladies and Gentlemen:
Reference is made to Credit Agreement, dated as of July 12, 2001 (the
"CREDIT AGREEMENT"), among Xxxxxx Communications Corporation, a Delaware
corporation (the "BORROWER"), the Lenders (as defined in the Credit Agreement),
Citicorp USA, Inc., as administrative agent for the Lenders and as collateral
agent for the Secured Parties under the Collateral Documents (in each such
capacity, the "ADMINISTRATIVE AGENT"), Union Bank of California, N.A., as
syndication agent for the Lenders and CIBC, Inc. and General Electric Capital
Corporation each as co-documentation agents for the Lenders. Unless otherwise
defined herein, capitalized terms used herein and defined in the Credit
Agreement are used herein as therein defined.
The Borrower has requested that the Lenders consent to an amendment to
the Credit Agreement on the terms described in Amendment No. 1 to Credit
Agreement ("AMENDMENT NO. 1"), a form of which is attached as EXHIBIT A hereto.
Pursuant to Section 11.1 of the Credit Agreement, the undersigned
Lender hereby consents to the amendments of, and modifications to, the Credit
Agreement contained in Amendment No. 1 and authorizes the Administrative Agent
to execute Amendment No. 1 on its behalf.
Very truly yours,
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(NAME OF LENDER)
By:
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Name:
Title:
Dated as of January __, 2002
