Exhibit 10.4
FIRST AMENDMENT, dated as of March 17, 2006 (this "Amendment"), to
the Amended and Restated Five-Year Credit Agreement dated as of June 4, 2004 and
amended and restated as of December 3, 2004 (as amended, supplemented or
otherwise modified from time to time, the "Credit Agreement"), among XXX
COMMUNICATIONS, INC., a Delaware corporation, the lenders, syndication agents
and arrangers and bookrunners party thereto, and JPMORGAN CHASE BANK, N.A., as
Administrative Agent.
The parties hereto hereby agree as follows:
1. Defined Terms. Capitalized terms which are defined in the Credit
Agreement and not otherwise defined herein have the meanings given in the Credit
Agreement.
2. Amendment. Section 1.01 of the Credit Agreement is amended:
(a) By deleting the definition of "Unit Appreciation Plan
Expense" and adding the following new definition in proper alphabetical
order:
"Incentive Compensation Plan Expense" shall mean charges for
expenses, whether accrued or paid, under long-term incentive
compensation plans and unit appreciation plans, in effect on
March 1, 2006, as amended thereafter from time to time.
(b) By amending and restating the definition of "Consolidated
Operating Cash Flow" to read as follows:
"Consolidated Operating Cash Flow" shall mean, as of the last
day of any fiscal quarter of the Company for the period of
four fiscal quarters then ended, the sum of (i) operating
income of the Company and its Restricted Subsidiaries (less
cash dividends and other cash distributions to the holders of
minority interests in the Company's Restricted Subsidiaries),
to the extent otherwise reflected in operating income before
giving effect to depreciation, amortization, other non-cash
charges and equity in earnings (losses) of unconsolidated
investees on a consolidated basis and non-recurring one-time
charges, all calculated as if any Restricted Subsidiary or
business that has been presented as discontinued operations in
the Company's consolidated financial statements but that has
not been sold or disposed of as of the last day of such four
fiscal quarter period had been presented as part of continuing
operations, and (ii) cash dividends and cash distributions,
other than extraordinary distributions, for such period from
unconsolidated investees of the Company and its Restricted
Subsidiaries, on a consolidated basis, minus, without
duplication, (iii) the amount of cash payments in respect of
items that were originally reflected in operating income
(whether in such period or any earlier period) as non-cash
charges; provided that Incentive Compensation Plan Expense
shall not be included in the calculation of Consolidated
Operating Cash Flow.
3. Waiver. Any Events of Default that may have arisen on December
31, 2005, under Section 8.01 of the Credit Agreement that would not have
occurred if this Amendment had been effective on that date, and any Defaults and
Events of Default that may have arisen that are related to or a consequence of
any of the foregoing described Events of Default, and any Defaults and Events of
Defaults arising out of the failure to take any action or comply with or perform
any obligation as a result of any of the foregoing described Defaults or Events
of Default, and any Defaults or Events of Default arising out of any
misstatements as to the absence of any such Default or Event of Default, are
hereby waived.
4. Effectiveness. This Amendment will become effective when the
Administrative Agent has received this Amendment executed and delivered by the
Company and the Majority Lenders.
5. Representation and Warranties. The Company represents and
warrants that, after giving effect to the provisions of this Amendment, (a) each
of the representations and warranties made by the Company in Article VI of the
Credit Agreement are true in all material respects on and as of the date hereof
as if made on and as of such date, except to the extent that such
representations and warranties refer to an earlier date, in which case they are
true in all material respects as of such earlier date and except that for this
purpose only the date "December 31, 2003" in the last sentence of Section 6.02
of the Credit Agreement shall be changed to "December 31, 2004", and (b) no
Default or Event of Default has occurred and is continuing.
6. Continuing Effect of the Credit Agreement. This Amendment is
limited solely to the matters expressly set forth herein and does not constitute
a waiver of any Default or Event of Default, except as expressly set forth in
paragraph 3 above, or a consent to any future action or event. As expressly
amended hereby, the Credit Agreement remains in full force and effect.
7. Miscellaneous. The provisions of Sections 13.06, 13.07(a), 13.08,
13.09, 13.10 13.12 and 13.13 shall apply with like effect to this Amendment.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed and delivered by their proper and duly authorized officers as
of the day and year first above written.
XXX COMMUNICATIONS, INC.
By: /s/ Xxxxx X. Xxxxx
-------------------------------
Name:
Title:
XX XXXXXX XXXXX BANK, N.A., as
Administrative Agent and as Lender
By: /s/ Xxxxxxxxxx X. Xxxxxxx
-------------------------------
Name: Xxxxxxxxxx X. Xxxxxxx
Title: Vice President
BANK OF AMERICA, N.A.
By: /s/ Xxxxxxxxxxx X. Xxx
-------------------------------
Name: Xxxxxxxxxxx X. Xxx
Title: Vice President
THE BANK OF NEW YORK
By: /s/ Xxxxx Xxxxxx
-------------------------------
Name: Xxxxx Xxxxxx
Title: Vice President
THE BANK OF NOVA SCOTIA
By: /s/ Xxxx Xxxxxx
-------------------------------
Name: Xxxx X. Xxxxxx
Title: Authorized Signatory
3
BANK OF OKLAHOMA, N.A.
By: /s/ Xxxxxx X. Xxxxx
-------------------------------
Name: Xxxxxx X. Xxxxx
Title: Assistant Vice President
BANK OF TOKYO-MITSUBISHI UFJ TRUST
COMPANY (formerly known as BANK OF
TOKYO-MITSUBISHI TRUST COMPANY)
By: /s/ Xxxxx Xxxxxxxxxx
-------------------------------
Name: Xxxxx Xxxxxxxxxx
Title: Vice President
THE BANK OF TOKYO-MITSUBISHI UFJ,
LTD., NEW YORK BRANCH (as
successor-by-merger to UFJ BANK
LIMITED)
By: /s/ Xxxxx Xxxxxxxxxx
-------------------------------
Name: Xxxxx Xxxxxxxxxx
Title: Authorized Signatory
BARCLAYS BANK PLC
By: /s/ Xxxxx Xxxxxx
-------------------------------
Name: Xxxxx Xxxxxx
Title: Associate Director
CITIBANK, N.A.
By: /s/ Xxxxxxx Xxxxxxx
-------------------------------
Name: Xxxxxxx Xxxxxxx
Title: Director
CREDIT SUISSE, CAYMAN ISLANDS
BRANCH
By: /s/ Xxxxxx Xxxx
-------------------------------
Name: Xxxxxx Xxxx
Title: Vice President
By: /s/ Xxxxxx Xxxxxxx
-------------------------------
Name: Xxxxxx Xxxxxxx
Title: Associate
DRESDNER BANK AG, NEW YORK AND
GRAND CAYMAN BRANCHES
By: /s/ Xxxx XxXxxxxx
-------------------------------
Name: Xxxx XxXxxxxx
Title: Vice President
DRESDNER BANK AG, NEW YORK AND
GRAND CAYMAN BRANCHES
By: /s/ Xxxxx Xxxxx
-------------------------------
Name: Xxxxx Xxxxx
Title: Managing Director
FIRST HAWAIIAN BANK
By: /s/ Xxxxxxx X. Xxxxxxx
-------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
XXXXXX BROTHERS BANK, FSB
By: /s/ Xxxxxx X. Xxxxxx
-------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Authorized Signatory
XXXXXXX XXXXX BANK USA
By: /s/ Xxxxx Xxxxx
-------------------------------
Name: Xxxxx Xxxxx
Title: Director
MIZUHO CORPORATE BANK, LTD
By: /s/ Xxxxxxx Xxxxxxx
-------------------------------
Name: Xxxxxxx Xxxxxxx
Title: Deputy General Manager
XXXXXX XXXXXXX BANK
By: /s/ Xxxxxx Xxxxxx
-------------------------------
Name: Xxxxxx Xxxxxx
Title: Vice President
PNC BANK N.A.
By: /s/ Xxxxx X. XxXxxxxx
-------------------------------
Name: Xxxxx X. XxXxxxxx
Title: Vice President
THE ROYAL BANK OF SCOTLAND PLC
By: /s/ Xxxxxx Xxxx
-------------------------------
Name: Xxxxxx Xxxx
Title: Managing Director
SCOTIABANC INC.
By: /s/ Xxxxxxx X. Xxxxxxx
-------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Managing Director
SOCIETE GENERALE
By: /s/ Xxxxxx Xxxxxx
-------------------------------
Name: Xxxxxx Xxxxxx
Title: Director
SUMITOMO MITSUI BANKING CORPORATION
By: /s/ Xxxxxxxxx Xxxxxxxxx
-------------------------------
Name: Xxxxxxxxx Xxxxxxxxx
Title: Joint General Manager
SUNTRUST BANK
By: /s/ Xxxxxx X. Xxxxxx
-------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Managing Director
U.S. BANK NATIONAL ASSOCIATION
By: /s/ Xxxx X. Xxxxxxxx
-------------------------------
Name: Xxxx X. Xxxxxxxx
Title: Vice President
UBS LOAN FINANCE LLC, Lender
By: /s/ Xxxxxxx X. Xxxxxx
-------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Director
By: /s/ Xxxx X. Xxxx
-------------------------------
Name: Xxxx X. Xxxx
Title: Associate Director
WACHOVIA BANK, NATIONAL ASSOCIATION
By: /s/ Xxxx X. Xxxxx
-------------------------------
Name: Xxxx X. Xxxxx
Title: Director
XXXXX FARGO BANK, N.A.
By: /s/ Xxxxxx X. Xxxxxx
-------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President
By: /s/ Xxxxxx X. Xxxxxxxx
-------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Vice President
XXXXXXX STREET COMMITMENT
CORPORATION
(Recourse only to assets of Xxxxxxx
Street Commitment Corporation)
By: /s/ Xxxx Xxxxxx
-------------------------------
Name: Xxxx Xxxxxx
Title: Assistant Vice President
