Exhibit 10.1
FIRST MODIFICATION TO LOAN DOCUMENTS
THIS FIRST MODIFICATION TO LOAN DOCUMENTS (this "Modification") is made and
entered into effective as of January 18, 2008, 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 ("▇▇▇▇"), ▇▇▇▇▇
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"), and KABLE PRODUCTS SERVICES, INC., a Delaware
corporation ("KPS")(collectively, the "Borrowers"), and LASALLE BANK NATIONAL
ASSOCIATION, a national banking association, whose address is ▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (the "Lender").
W I T N E S S E T H:
A. Lender and KMS, KNC, KDS, KEXP, ▇▇▇▇, 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 (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) Facility C CapEx Note
dated as of January 16, 2007 in the principal amount of One Million Five Hundred
Thousand and 00/100 Dollars ($1,500,000) made by Initial Borrowers 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. Borrowers and Lender are agreeable to modify the Loan Agreement, Notes
and other Loan Documents to, among other things, (i) increase the Facility C
CapEx Loan Commitment to $4,500,000, (ii) add KPS as an additional Borrower,
(iii) modify the structure of the Facility C Loan to permit Borrowers to
reborrow amounts repaid under the Facility C Loans, (iv) modify the Facility C
Interest Rate options, and (v) to modify the Loan Documents to reflect all
amendments, modifications, extensions, renewals, restatements, substitutions or
replacements thereof through the date hereof pursuant to the terms and
conditions hereinafter set forth.
C. On October 31, 2007, Lender made a Facility C Loan to Borrowers in the
principal amount of One Million Five Hundred Thousand Dollars ($1,500,000)
("Initial Facility C Draw"). The Facility C Interest Rate applicable to this
Initial Facility C Draw shall be the Facility C Fixed Rate effective as of
February 1, 2008.
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 Definitions. The following definitions contained in Section
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1.1 of the Loan Agreement are hereby amended and restated as follows:
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"Cost of Funds Rate" shall mean a fixed rate of interest based upon
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the then-current cost of funds index published by Lender for the period
most nearly equaling the period of time between the selection of the Cost
of Funds Rate and the applicable Maturity Date for such Loan.
"Eligible Costs" shall mean with respect to a Facility C Loan, one
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hundred percent (100%) of the Lender-approved invoices (which shall not
include transportation or installation costs) for Collateral up to an
amount not to exceed the balance of the Facility C Loan Commitment.
"Facility C CapEx Note" shall mean a revolving note in the form of
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Exhibit D hereto in the amount of the Facility C Loan Commitment and
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maturing on the Facility C Maturity Date, duly executed by the Borrowers
and payable to the order of the Lender, together with any and all renewal,
extension, modification or replacement notes executed by the Borrowers and
delivered to the Lender and given in substitution therefor.
"Facility C Loan Commitment" shall mean Four Million Five Hundred
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Thousand and 00/100 Dollars ($4,500,000.00), as such amount may be reduced
pursuant to Section 2.3 hereof.
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"Facility C Interest Rate" shall mean the Borrowers' option of (i) a
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floating rate equal to the Prime Rate plus the Applicable Margin, (ii) a
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floating rate equal to the LIBOR Rate plus the Applicable Margin, (iii) the
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Locked LIBOR Rate or (iv) the Facility C Fixed Rate.
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(b) New Definitions. The following definitions shall be inserted
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alphabetically in Section 1.1 of the Loan Agreement:
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"Facility C Fixed Loan" shall mean a Facility C Loan which bears
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interest at the Facility C Fixed Rate.
"Facility C Fixed Rate" shall mean, for each Facility C Fixed Loan, a
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rate of interest equal to the Cost of Funds Rate plus the Applicable Margin
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for a LIBOR Loan in each case determined as of the date of funding of the
applicable Facility C Loan.
"Locked LIBOR Loan" shall mean a Loan bearing interest at the Locked
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LIBOR Rate made pursuant to Section 2.1(b) in the case of a Facility A
Loan, Section 2.3(b) in the case of a Facility C Loan and Section 2.4(b) in
the case of a Facility D Loan.
"Locked LIBOR Rate" shall mean, for each Locked LIBOR Loan, a rate of
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interest equal to 30 day LIBOR as in effect on the first Business Day of
the then current month plus the Applicable Margin for a LIBOR Loan, such
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rate shall apply to all Locked LIBOR Loans outstanding at any time during
such calendar month. The Locked LIBOR Rate shall be reset on the first
Business Day of each succeeding month while any Locked LIBOR Loan remains
outstanding.
(c) All references in the Loan Agreement and other Loan Documents to "Fixed
LIBOR Loan" are hereby replaced with "Locked LIBOR Loan" and all references to
"Fixed LIBOR Rate" are hereby replaced with "Locked LIBOR Rate".
(d) Deleted Definitions. The following definitions in Section 1.1 of the
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Loan Agreement are hereby deleted in their entirety: Fixed LIBOR Loan and Fixed
LIBOR Rate.
2.2 Amended and Restated Facility C Loans. Section 2.3 of the Loan
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Agreement, captioned "Facility C Loans," is hereby amended and restated to read
in its entirety as follows:
(a) Facility C Loan Commitment. Provided that an Event of Default or
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any event which with notice, lapse of time or both would constitute an
Event of Default does not then exist, the Lender shall extend to the
Borrowers the Facility C Loan Commitment. Subject to the terms and
conditions of this Agreement, from the date hereof through but not
including May 1, 2010, the Lender shall from time to time make advances to
the Borrowers hereunder in an aggregate amount not to exceed the lesser of
(i) the Facility C Loan Commitment and (ii) the Eligible Costs. The
aggregate amount available under Facility C hereunder shall not exceed the
Facility C Loan Commitment. Each advance under Facility C hereunder shall
be called a "Facility C Loan." The Facility C Loans shall be evidenced by
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the Facility C CapEx Note in the amount of the Facility C Loan Commitment.
No advance under Facility C may have a maturity date later than the
Facility C Maturity Date. Facility C Loans may be repaid and, subject to
the terms and conditions hereof borrowed again up to, but not including,
the Facility C Maturity Date unless the Facility C Loans are otherwise
accelerated, terminated or extended as provided in this Agreement.
(b) Facility C Loan Interest and Principal Payments.
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(i) The Borrowers shall pay interest on the unpaid principal
balance of Facility C Loans at the applicable Facility C Interest Rate
selected pursuant to Section 2.3(e) as follows: (A) for Facility C
Loans that bear interest at either the Prime Rate or the Facility C
Fixed Rate, monthly in arrears beginning on the last Business Day of
the first full calendar month after such Facility C Loan was made and
continuing on the last Business Day of each calendar month thereafter
until all amounts due thereunder have been paid in full and (B) for
Facility C Loans that bear interest at the LIBOR Rate, on the last
Business Day of each LIBOR Interest Period (provided, however, that
for LIBOR Interest Periods of six months, accrued interest shall also
be paid on the date which is three months from the first day of such
LIBOR Interest Period), commencing on the first such date to occur
after such Facility C Loan was made and continuing on each such date
to occur thereafter, on the date of any principal repayment of a LIBOR
Loan and on the Facility C Maturity Date.
(ii) The Borrowers shall have the option for each Facility C Loan
to designate the timing for the principal repayments for each such
advance. The Borrowers may designate principal payments as either (A)
commencing on the last Business Day of the first full calendar month
after each Facility C Loan was initially funded (the "Facility C
Funding Date") and continuing on the last Business Day of each
calendar month thereafter or (B) commencing on the last Business Day
of the calendar quarter of the Facility C Funding Date and continuing
on the last Business Day of each calendar quarter thereafter, in each
case, such payments to continue through and including the Facility C
Maturity Date and in an equal amount necessary to amortize fully such
Facility C Loan over a period of not more than forty-eight (48)
months. The Borrowers shall pay the outstanding principal of and
interest on each Facility C CapEx Note not later than on the Facility
C Maturity Date. Borrowers shall notify Lender whether option (A) or
(B) applies on the Facility C Funding Date of each Facility C Loan.
(iii) The Borrowers may from time to time prepay the Facility C
Loans, in whole or in part, without any prepayment penalty whatsoever,
provided that any prepayment of the entire principal balance shall
include accrued interest on such Facility C Loans to the date of such
prepayment.
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(c) Timing of Loans and Advances. Requests by the Borrowers for loans
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or advances under the Facility C Loan Commitment shall be made in writing
at least two (2) Business Days prior to each proposed advance on forms
reasonably acceptable to the Lender, but, at the Lender's sole discretion,
the Lender may make an advance to the Borrowers upon the oral request of
the Borrowers, subject to confirmation by the Borrowers in writing. Each
such request shall be in the minimum amount of $100,000 and $50,000
increments in excess thereof and shall be accompanied or preceded by
invoices and certificates setting forth, in form and substance reasonably
satisfactory to the Lender, the amount of Eligible Costs upon which the
requested loan or advance is to be based. Not more than two (2) Business
Days after the Lender's receipt of such request for advance, the Lender
shall provide the Borrowers with notice of the amount of Eligible Costs
approved by the Lender for such advance. As a condition to the Lender
making an advance with respect to a Facility C Loan, the Borrowers shall
deliver to the Lender the applicable invoices and certificates described
above relating thereto. The Borrowers consent to the Lender filing further
Uniform Commercial Code financing statements attaching such invoices and
certificates.
(d) One Loan or Advance. All Facility C Loans shall constitute one
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obligation secured by the Lender's Lien in the Borrowers' Collateral and by
all other Liens now or hereafter granted by the Borrowers to the Lender.
(e) Applicable Rate. The Borrowers agree to pay interest on the daily
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balance of each Facility C Loan. The Borrowers shall make an interest rate
election at the time of its request for an advance of a Facility C Loan
selecting one of the following four interest rate modes to apply to the
Facility C Loan for the period commencing on the date of the funding of the
Facility C Loan through the Facility C Maturity Date or such earlier date
on which the Facility C Loan is prepaid in full in accordance with this
Agreement:
(i) a variable interest rate equal to the Prime Rate;
(ii) the LIBOR Rate;
(iii) the Locked LIBOR Rate; or
(iv) the Facility C Fixed Rate
The foregoing notwithstanding, after the occurrence and during the
continuance of an Event of Default under this Agreement, the rate per annum
on such Facility C Loan shall be equal to the Default Rate.
(f) Computation of Interest. In computing interest on a Facility C
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Loan, (i) the date of funding of such Facility C Loan shall be included and
(ii) the date of payment of such Facility C Loan shall be excluded;
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provided that if a Facility C Loan is repaid on the same day on which it is
made, one day's interest shall be paid on such Facility C Loan.
2.3 Amendment to the First Sentence of Section 5.1. The first sentence of
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Section 5.1 of the Loan Agreement, captioned "Borrowing Procedures," is hereby
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amended and restated to read in its entirety as follows:
Each Facility A Loan or Facility D Loan may be advanced as a Prime
Loan, a Locked LIBOR Loan or a LIBOR Loan and each Facility C Loan may be
advanced as a Prime Loan, a Locked LIBOR Loan, a LIBOR Loan or a Facility C
Fixed Loan, provided, however, that at any time, the Borrowers may identify
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no more than five (5) Facility A Loans, five (5) Facility C Loans and five
(5) Facility D Loans which may be LIBOR Loans and Borrowers may have only
one (1) Locked LIBOR Loan Facility A Loan and one (1) Locked LIBOR Loan
Facility D Loan at any one time
3. ADDITION OF A NEW BORROWER TO THE LOAN DOCUMENTS.
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3.1 Addition of KPS as a Party. From and after the date of this Amendment,
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the Borrowers, including KPS, hereby agree that from and after the date hereof
KPS is a party to, and bound by, the Loan Agreement and the balance of the Loan
Documents, as amended hereby. All references in the Loan Documents to Borrowers
shall hereafter mean and include KPS. KPS as a "Borrower", agrees and confirms
that as a result of becoming a party to, and bound by, the Loan Agreement that
KPS has granted to Lender a security interest in and lien on all the Collateral
(as defined in Section 1.1 of the Loan Agreement) of KPS.
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4. REPRESENTATIONS AND WARRANTIES.
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4.1 Organization. Each Borrower is a corporation or limited liability
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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, resolutions and incumbency certificates of the Initial
Borrowers delivered in connection with the closing of the Loan Agreement have
not been changed or amended since the date of such closing. 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. 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 amended by the revised Exhibit A, copies of which are attached hereto
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and made a part hereof.
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4.2 Authorization. The Borrowers have full right, power and authority to
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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.
4.3 No Conflicts. The execution and delivery of this Modification and the
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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.
4.4 Validity and Binding Effect. The Loan Agreement, as amended hereby, is
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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.
4.5 Compliance with Loan Agreement. The representation and warranties set
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forth in Section 7 of the Loan Agreement, as amended hereby, including as
amended by the revised Schedules 7.1, 7.19 and 7.23, copies of which are
attached hereto and made a part hereof, 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, each Initial 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 revised Schedule 9.3) and
Section 10 thereof.
4.6 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.
4.7 Release and Waiver. As of the date hereof, no Borrower possesses (or
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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.
4.8 Omnibus Amendment. Each of the Loan Documents shall be deemed amended
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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
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(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.
5. CONDITIONS PRECEDENT. This Modification shall become effective as of the
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date above first written after receipt by Lender of the following:
5.1 Modification. This Modification executed by each Borrower and Lender.
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5.2 Resolutions. A certified copy of resolutions of the Board of Directors
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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.
5.3 Other Documents. Such other documents, certificates, resolutions and/or
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opinions of counsel as Lender may request.
6. GENERAL.
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6.1 Governing Law; Severability. This Modification shall be construed in
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accordance with and governed by the laws 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.
6.2 Successors and Assigns. This Modification shall be binding upon each
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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.
6.3 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.
6.4 Expenses. Borrowers shall pay all costs and expenses in connection with
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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.
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6.5 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.
6.6 Jury Waiver. BORROWERS AND LENDER IRREVOCABLY WAIVE ANY RIGHT TO TRIAL
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BY JURY IN ANY ACTION OR PROCEEDING: (a) TO ENFORCE OR DEFEND ANY 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/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇,
Vice President and Treasurer Senior Vice President
and Director of Finance
KABLE NEWS EXPORT, LTD., KABLE NEWS INTERNATIONAL, INC.,
a Delaware corporation a Delaware corporation
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇,
Vice President and Secretary Treasurer
KABLE FULFILLMENT SERVICES, INC., a Delaware corporation KABLE FULFILLMENT SERVICES OF OHIO, INC., a Delaware
corporation
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇,
Vice President and Treasurer Vice President and Treasurer
KABLE DISTRIBUTION SERVICES, INC., a Delaware corporation PALM COAST DATA LLC, a Delaware limited liability
company
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
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▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇, President,
Senior Vice President Chief Operating Officer and Secretary
PALM COAST DATA HOLDCO, INC., KABLE PRODUCTS SERVICES, INC.,
a Delaware corporation a Delaware corporation
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇,
President, Chief Operating Officer and Secretary Executive Vice President of Finance and Treasurer
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LENDER:
LASALLE BANK NATIONAL ASSOCIATION,
a national banking association
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
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▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, First Vice President
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