Exhibit 4.4
THIRD MODIFICATION TO LOAN DOCUMENTS
THIS THIRD MODIFICATION TO LOAN DOCUMENTS (this "Modification") is made and
entered into effective as of April 27, 2009, by and among KABLE MEDIA SERVICES,
INC., a Delaware corporation ("KMS"), KABLE NEWS COMPANY, INC., an Illinois
corporation ("KNC"), KABLE DISTRIBUTION SERVICES, INC., a Delaware corporation
("KDS"), KABLE NEWS EXPORT, LTD., a Delaware corporation ("KEXP"), KABLE NEWS
INTERNATIONAL, INC., a Delaware corporation ("KINT"), KABLE FULFILLMENT
SERVICES, INC., a Delaware corporation ("KFS"), KABLE FULFILLMENT SERVICES OF
OHIO, INC., a Delaware corporation ("KFSO"), PALM COAST DATA HOLDCO, INC., a
Delaware corporation ("PCD"), PALM COAST DATA LLC, a Delaware limited liability
company ("PCD LLC"), KABLE PRODUCT SERVICES, INC., a Delaware corporation,
formerly known as Kable Products Services, Inc. ("KPS"), KABLE SPECIALTY
PACKAGING SERVICES LLC, a Delaware limited liability company ("KSPS"), and KABLE
STAFFING RESOURCES LLC, a Delaware limited liability company ("KSR")
(collectively, the "Borrowers"), and BANK OF AMERICA, N.A., a national banking
association, as successor by merger to LaSalle Bank National Association (the
"Lender").
W I T N E S S E T H:
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A. Lender and KMS, KNC, KDS, KEXP, KINT, KFS, KFSO, PCD and PCD LLC
(collectively, the "Initial Borrowers") heretofore have been parties to the
following agreements, documents and instruments: (a) Second Amended and Restated
Loan and Security Agreement dated as of January 16, 2007, as amended by that
certain First Modification to Loan Documents dated as of January 18, 2008
("First Modification") made by Initial Borrowers, KPS and Lender and Second
Modification to Loan Documents dated as of October 1, 2008 ("Second
Modification") made by Initial Borrowers, KPS, KSPS and KSR and Lender
(together, the "Loan Agreement"); (b) Facility A Revolving Note dated as of
January 16, 2007 in the principal amount of up to Thirty Five Million and 00/100
Dollars ($35,000,000) made by Initial Borrowers in favor of Lender ("Facility A
Revolving Note"); (c) Facility B Term Note dated as of January 16, 2007 in the
principal amount of Three Million Thirty Six Thousand and 00/100 Dollars
($3,036,000) made by Initial Borrowers in favor of Lender ("Facility B Term
Note"); (d) Amended and Restated Facility C CapEx Note dated as of January 18,
2008 in the principal amount of Four Million Five Hundred Thousand and 00/100
Dollars ($4,500,000) made by Initial Borrowers and KPS in favor of Lender
("Facility C CapEx Note"); (e) Facility D Revolving Note dated as of January 16,
2007 in the principal amount of up to Ten Million and 00/100 Dollars
($10,000,000) made by Initial Borrowers in favor of Lender ("Facility D
Revolving Note", together with the Facility A Revolving Note, Facility B Term
Note, Facility C CapEx Note and with all modifications, supplements, amendments,
restatements or extensions thereto or thereof, being referred to, collectively,
as the "Notes"); and (f) the balance of the other Loan Documents (as defined in
the Loan Agreement), documents and instruments delivered in connection
therewith.
B. The Borrowers have requested that Lender consent and agree to the
following proposed transactions (collectively, the "Transactions"): (i) the
dissolution and winding up of the affairs of KFSO and KEXP pursuant to
Subchapter X of the Delaware General Corporation Law, provided their remaining
assets after discharge of their liabilities, are distributed to other Borrowers,
(ii) the removal of KFSO and KEXP as parties to, and Borrowers under, the Loan
Agreement and the Loan Documents, and the classification of any interests of any
of the remaining Borrowers in KFSO and KEXP as permitted Investments, and (iii)
amendments to the Loan Agreement and the other Loan Documents to conform to
Transactions identified in (i) and (ii) above.
NOW THEREFORE, in consideration of the premises and other good and valuable
consideration, the receipt and adequacy of which are hereby acknowledged,
Borrowers and Lender hereby agree as follows:
1. DEFINITIONS. Capitalized words and phrases used herein without
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definition shall have the respective meanings ascribed to such words and
phrases in the Loan Agreement.
2. AMENDMENTS TO THE LOAN AGREEMENT.
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2.1 Definitions.
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(a) Substituted Definition. The following definitions contained in
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Section 1.1 of the Loan Agreement is hereby amended and restated as
follows:
"Change of Control" shall mean the occurrence of any of the
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following events: (a) KMS shall cease to own and control, directly or
indirectly, 100% of the outstanding Capital Securities of KDS; (b) KDS
shall cease to, directly or indirectly, own and control 100% of each
class of the outstanding Capital Securities of KINT or of the
surviving or resulting corporation in the event of their merger or
consolidation; (c) KMS shall cease to own and control, directly or
indirectly, 100% of the outstanding Capital Securities of KNC; (d) KNC
shall cease to, directly or indirectly, own and control 100% of each
class of the outstanding Capital Securities of KFS or of the surviving
or resulting corporation in the event of its merger or consolidation;
(e) KMS shall cease to own and control, directly or indirectly, 100%
of the outstanding Capital Securities of KSR; (f) KMS shall cease to
own and control, directly or indirectly, 100% of the outstanding
Capital Securities of KSPS; or (g) the granting by KMS, directly or
indirectly, of a security interest in its ownership interest in any of
the Borrowers, which could result in a change in the identity of the
individuals or entities in control of such Borrower. For the purpose
hereof, the terms "control" or "controlling" shall mean the possession
of the power to direct, or cause the direction of, the management and
policies of the Borrower(s) by contract or voting of securities or
ownership interests.
(b) Substituted Subsection (j) of Eligible Accounts. Subsection (j) of
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the definition of "Eligible Accounts" contained in Section 1.1 of the Loan
Agreement is hereby amended and restated as follows:
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(j) it is an Account stated in a monthly statement or an Account
invoiced (and dated as of such date) and, in each case, sent to the
Account Debtor thereof within the Borrowers' normal monthly billing
cycle, but in no event later than thirty (30) days after the shipment
and delivery to the Account Debtor of the Goods giving rise thereto or
the performance of the services giving rise thereto and (i) as to KDS
and its Subsidiaries which is due and payable within ninety (90) days
past the original invoice date (otherwise known as the monthly
statement date) thereof, (ii) in the case of Accounts pertaining to
KNC, KFS and PCD LLC the Account is evidenced by an invoice which is
due and payable within forty-five (45) days after the invoice date and
is no more than sixty (60) days past the due date of the invoice, and
(iii) in the case of Eligible Foreign Accounts, is evidenced by an
invoice which is due and payable within one hundred and twenty (120)
days after the invoice date, in each case according to the original
terms of sale;
2.2 Section 13.18, Notices. Section 13.18 of the Loan Agreement is
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hereby amended by deleting KEXP and KFSO from the notice provision under
Borrowers and the notices to Lender is hereby amended and restated to read
in its entirety as follows:
If to the Lender: Bank of America, N.A.
750 Walnut Avenue
Cranford, NJ 07016
Attention: Ilene M. Gerber
Sr. Credit Products Underwriter
Telephone No.: (908) 709-6482
Facsimile No.: (908) 709-6055
Email ilene.gerber@bankofamerica.com
2.3 Schedule 7.1. Section D - KFSO, and Section F- KNE also known as
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KEXP of Schedule 7.1 - Locations, Tradenames and Organizational
Identification Numbers are hereby deleted.
2.4 Schedule 7.23. Section D - KFSO, and Section F-KNE, also known as
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KEXP, of Schedule 7.23 - Places of Business, Location of Books and Records
and Location of Collateral are hereby deleted.
2.5 Schedule 9.3. Schedule 9.3- Existing Investments is hereby amended
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in the form attached hereto as Schedule 9.3, Existing Investments and
incorporated by reference herein.
3. CONSENTS AND WAIVER UNDER LOAN AGREEMENT.
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3.1 Consents and Waiver. On the terms and subject to the conditions
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contained herein, the Lender hereby (i) approves the dissolution of KEXP
and KFSO, (ii) consents to the Transactions and waives applicable
restrictions contained in Sections 8.2, 9.3, 9.4, 9.7, 9.13, and 11.9 of
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the Loan Agreement solely for the Transactions, and (iii) reserves all
rights of the Lender with respect to any future transactions, whether
similar in nature or type to the Transactions, including any future or
other redemption, debt incurrence or other non-compliance by Borrowers with
the provisions of the Loan Agreement, as amended hereby. Borrowers hereby
agree strictly to adhere to the terms and conditions contained in the Loan
Agreement, including without limitation Sections 8.2, 9.3, 9.4, 9.7, 9.13
and 11.9 thereof.
4. RELEASE OF KEXP AND KFSO AS BORROWERS TO THE LOAN DOCUMENTS.
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4.1 Release of KEXP and KFSO as a Party. The Borrowers, including KEXP
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and KFSO, and Lender hereby agree that from and after the date hereof and
giving effect to the terms and conditions of this Modification: (a) KEXP
and KFSO are released as parties to the Loan Agreement and all other Loan
Documents, as amended hereby, (b) all references in the Loan Documents to
Borrowers shall hereafter exclude KEXP and KFSO as a "Borrower" under the
Loan Agreement and Loan Documents and (c) Lender hereby releases the
security interest in and lien on all the Collateral (as defined in Section
1.1 of the Loan Agreement) granted by KEXP and KFSO.
5. REPRESENTATIONS AND WARRANTIES.
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5.1 Organization. Except for the dissolution of KEXP and KFSO, each
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Borrower is a corporation or limited liability company duly organized,
existing and in good standing under the laws of the jurisdiction of its
organization with full and adequate power to carry on and conduct its
business as presently conducted. Each Borrower is duly licensed or
qualified in all foreign jurisdictions wherein the nature of its activities
require such qualification or licensing, except for such jurisdictions
where the failure to so qualify would not have a Material Adverse Effect.
The organizational documents and resolutions of the Borrowers delivered in
connection with the closing of the Loan Agreement have not been changed or
amended since their delivery to the Lender except as set forth in the First
Modification and Second Modification. The exact legal name of each Borrower
is as set forth in the preamble of this Modification, and except as set
forth on Schedule 7.1 to the Loan Agreement, as of the date hereof the
Borrowers do not conduct, nor have they during the last five (5) years
conducted, business under any other name or trade name. Except for the
dissolution of KEXP and KFSO, each Borrower will not change its name, its
organizational identification number, if it has one, its type of
organization, its jurisdiction of organization or other legal structure,
except as permitted by the Loan Agreement.
5.2 Authorization. The Borrowers have full right, power and authority
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to enter into this Modification, to borrow monies under the Loan Agreement,
as amended hereby, and to perform their obligations under the Loan
Agreement as amended hereby.
5.3 No Conflicts. The execution and delivery of this Modification and
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the performance by each Borrower of its obligations under the Loan
Agreement, as amended hereby, do not and will not violate or contravene any
provision of law in any material respect or of any of the organizational
documents of the Borrowers.
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5.4 Validity and Binding Effect. The Loan Agreement, as amended
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hereby, is a legal, valid and binding obligation of each Borrower,
enforceable against each Borrower in accordance with its terms, except as
enforceability may be limited by bankruptcy, insolvency or other similar
laws of general application affecting the enforcement of creditors' rights
or by general principles of equity limiting the availability of equitable
remedies.
5.5 Compliance with Loan Agreement. The representations and warranties
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set forth in Section 7 of the Loan Agreement, as amended hereby, including
as amended by the Revisions to Schedules 7.1 and 7.23, are true and correct
with the same effect as if such representations and warranties had been
made on the date hereof, with the exception that all references to the
financial statements shall mean the financial statements most recently
delivered to Lender and except for such changes as are specifically
permitted under the Loan Agreement. In addition, as of the date hereof and
giving effect to the terms and conditions contained in this Modification,
each Borrower has complied with and each Borrower is in compliance with all
of the covenants set forth in the Loan Agreement, as amended hereby,
including, but not limited to, those set forth in Section 8, Section 9
(including as amended by the Revision to Schedule 9.3 attached hereto) and
Section 10 thereof.
5.6 No Event of Default. As of the date hereof, no Event of Default or
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Unmatured Event of Default exists under Section 11 of the Loan Agreement,
as amended hereby.
5.7 Release and Waiver. As of the date hereof, no Borrower possesses
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(or has knowledge of) any claims, defenses, offsets or counterclaims
against Lender (or its officers, directors, members, shareholders,
employees or agents) relating to this Modification or the Loan Documents.
In the event there exists on the date of this Agreement, any facts that
would give rise to any claim, defense, offset or counterclaim against or
with respect to the enforcement of this Modification or the Loan Documents,
each Borrower hereby unconditionally, irrevocably, and unequivocally waives
and fully releases Lender (and its officers, directors, shareholders,
employees or agents) of any such claim, defense, offset or counterclaim to
the same extent as if such claims were the subject of a lawsuit adjudicated
to conclusion and dismissed therein with prejudice.
5.8 Omnibus Amendment. Each of the Loan Documents shall be deemed
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amended to give effect to the provisions of this Modification without need
for referencing each of the Loan Documents by name. Without limiting the
generality of the foregoing, Borrowers and Lender acknowledge that the term
"Loan Documents" shall mean all of the Loan Documents as modified by this
Modification (and any notes, amendments and agreements delivered in
connection herewith). Additionally, as used in the other Loan Documents,
the term "Documents" and/or "Loan Documents" shall now be deemed to include
this Modification and any other documents, instruments or agreements
executed in connection herewith.
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6. CONDITIONS PRECEDENT. This Modification shall become effective as
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of the date above first written after receipt by Lender of the following:
6.1 Modification. This Modification executed by each Borrower and
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Lender.
6.2 Resolutions. A certified copy of resolutions of the Board of
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Directors and/or shareholders, or members and/or mangers of, as applicable,
of each Borrower authorizing the execution, delivery and performance of
this Modification and the Loan Documents.
6.3 Other Documents. Such other documents, certificates, resolutions
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and/or opinions of counsel as Lender may request.
7. GENERAL.
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7.1 Governing Law; Severability. This Modification shall be construed
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in accordance with and governed by the laws of the State of Illinois.
Wherever possible each provision of the Loan Agreement and this
Modification shall be interpreted in such manner as to be effective and
valid under applicable law, but if any provision of the Loan Agreement and
this Modification shall be prohibited by or invalid under such law, such
provision shall be ineffective to the extent of such prohibition or
invalidity, without invalidating the remainder of such provision or the
remaining provisions of the Loan Agreement and this Modification.
7.2 Successors and Assigns. This Modification shall be binding upon
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each Borrower and Lender and their respective successors and assigns, and
shall inure to the benefit of such Borrower and Lender and the successors
and assigns of Lender.
7.3 References to Loan Agreement. This Modification amends the Loan
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Agreement, as in effect on the date hereof. Each reference in the Loan
Agreement to "this Agreement", "hereunder", "hereof", or words of like
import, and each reference to the Loan Agreement in any and all instruments
or documents delivered in connection therewith, shall be deemed to refer to
the Loan Agreement, as amended hereby.
7.4 Expenses. Borrowers shall pay all costs and expenses in connection
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with the preparation of this Modification and other related loan documents,
including, without limitation, reasonable attorneys' fees and time charges
of attorneys who may be employees of Lender. Borrowers shall pay any and
all stamp and other taxes, UCC search fees, filing fees and other costs and
expenses in connection with the execution and delivery of this Modification
and the other instruments and documents to be delivered hereunder, and
agrees to save Lender harmless from and against any and all liabilities
with respect to or resulting from any delay in paying or omission to pay
such costs and expenses.
7.5 Counterparts. This Modification may be executed in any number of
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counterparts, all of which shall constitute one and the same agreement.
7.6 Jury Waiver. BORROWERS AND LENDER IRREVOCABLY WAIVE ANY RIGHT TO
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TRIAL BY JURY IN ANY ACTION OR PROCEEDING: (a) TO ENFORCE OR DEFEND ANY
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RIGHTS UNDER OR IN CONNECTION WITH THIS MODIFICATION OR ANY AMENDMENT,
INSTRUMENT, DOCUMENT OR AGREEMENT DELIVERED OR WHICH MAY IN THE FUTURE BE
DELIVERED IN CONNECTION HEREWITH; OR (b) ARISING FROM ANY DISPUTE OR
CONTROVERSY IN CONNECTION WITH OR RELATED TO THIS MODIFICATION OR ANY SUCH
AMENDMENT, INSTRUMENT, DOCUMENT OR AGREEMENT, AND AGREE THAT ANY SUCH
ACTION OR PROCEEDING SHALL BE TRIED BEFORE A COURT AND NOT BEFORE A JURY.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the parties have executed this Modification as of
the date first above written.
BORRROWERS:
KABLE MEDIA SERVICES, INC., KABLE NEWS COMPANY, INC.,
a Delaware corporation an Illinois corporation
By: /s/ Bruce Obendorf By: /s/ Bruce Obendorf
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Bruce Obendorf, Bruce Obendorf,
Vice President Senior Vice President
KABLE NEWS EXPORT, LTD., KABLE NEWS INTERNATIONAL, INC.,
a Delaware corporation a Delaware corporation
By: /s/ Bruce Obendorf By: /s/ Bruce Obendorf
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Bruce Obendorf, Bruce Obendorf,
Vice President Treasurer
KABLE FULFILLMENT SERVICES, INC., KABLE FULFILLMENT SERVICES OF
a Delaware corporation OHIO, INC., a Delaware corporation
By: /s/ Bruce Obendorf By /s/ Bruce Obendorf
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Bruce Obendorf, Bruce Obendorf,
Vice President Vice President
KABLE DISTRIBUTION SERVICES, INC., PALM COAST DATA LLC, a Delaware
a Delaware corporation limited liability company
By: /s/ Bruce Obendorf By: By: /s/ Bruce Obendorf
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Bruce Obendorf, Bruce Obendorf,
Senior Vice President Vice President
PALM COAST DATA HOLDCO, INC., KABLE PRODUCT SERVICES, INC.,
a Delaware corporation a Delaware corporation
By: /s/ Peter M. Pizza By: /s/ Bruce Obendorf
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Peter M. Pizza, Vice President Bruce Obendorf,
Executive Vice President Finance
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KABLE SPECIALTY PACKAGING KABLE STAFFING RESOURCES LLC,
SERVICES LLC, a Delaware limited a Delaware limited liability company
liability company
By: /s/ Bruce Obendorf By: /s/ Bruce Obendorf
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Bruce Obendorf Bruce Obendorf
Vice President, Finance Vice President, Finance
LENDER:
BANK OF AMERICA, N.A., a national
banking association, as successor by merger
to LaSalle Bank National Association
By: /s/ Ilene M. Gerber
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Ilene M. Gerber
Sr. Credit Products Underwriter
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