Exhibit 10.5
EXECUTION COPY
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THIRD AMENDMENT TO LOAN AGREEMENT
This THIRD AMENDMENT TO LOAN AGREEMENT is made and entered into as of
April 3, 1997, by and among CASTLE TOWER CORPORATION, a Delaware corporation
("CTC-Del"), CASTLE TOWER CORPORATION (PR), a Puerto Rico corporation ("CTC-PR"
and, together with CTC-Del, collectively, the "Borrowers" and individually, a
"Borrower"), the FINANCIAL INSTITUTIONS listed on the signature pages hereof,
and KEYBANK NATIONAL ASSOCIATION (formerly known as "Society National Bank"), as
agent (the "Agent").
RECITALS
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A. CTC-Del, CTC-PR, the Agent and the Banks entered into a Loan
Agreement dated as of April 26, 1995 (as amended by the First Amendment to Loan
Agreement dated as of June 26, 1996, and the Second Amendment to Loan Agreement
dated as of January 17, 1997, the "Original Agreement"), pursuant to which the
Banks agreed to make available to the Borrowers loans of up to $50,000,000. The
Original Agreement, as amended hereby, may be referred to hereinafter as the
"Loan Agreement." Capitalized terms used herein and not otherwise defined shall
have the meanings assigned to them in the Loan Agreement.
B. The Borrowers desire to revise Section 8.5 of the Original
Agreement as set forth herein. Subject to the terms and conditions of this
Amendment, the Agent and the Banks have agreed to such request.
AGREEMENTS
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In consideration of the foregoing Recitals and of the covenants and
representations contained herein, and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the Borrowers, the
Agent and the Banks agree as follows:
1. Amendments. The Original Agreement shall be amended as follows:
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Section 8.5 shall be amended by deleting the figure "$50,000" in the eighth line
thereof, and in its place inserting the figure "$150,000".
2. Representations, Warranties and Events of Default.
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(a) Except as amended hereby, the terms, provisions, conditions and
agreements of the Original Agreement are hereby ratified and confirmed and shall
remain in full force
and effect. Each and every representation and warranty of the Borrowers set
forth in the Original Agreement, other than those which by their terms are
limited to a specific date, is hereby confirmed and ratified in all material
respects and such representations and warranties as so confirmed and ratified
shall be deemed to have been made and undertaken as of the date of this
Amendment as well as at the time they were made and undertaken.
(b) The Borrowers, jointly and severally, represent and warrant
that:
(i) No Event of Default or Possible Default now exists or
will exist immediately following the execution hereof or after giving effect to
the transactions contemplated hereby.
(ii) All necessary corporate or shareholder actions on the
part of each Borrower, Holdco and each stockholder of Holdco to authorize the
execution, delivery and performance of this Amendment have been taken; this
Amendment has been duly and validly executed and delivered and is legally valid
and binding upon each Borrower and enforceable in accordance with its terms,
except to the extent that the enforceability may be limited by bankruptcy,
insolvency or like laws or by general equitable principles.
(iii) The execution, delivery and performance of this
Amendment and all actions and transactions contemplated hereby will not (A)
violate, be in conflict with, result in a breach of or constitute (with due
notice or lapse of time or both) a default under (I) any provision of the
charter documents or by-laws of either Borrower, (II) any arbitration award or
any order of any court or of any other governmental agency or authority, (III)
any license, permit or authorization granted to either Borrower or under which
either Borrower operates, or (IV) any applicable law, rule, order or regulation,
indenture, agreement or other instrument to which either Borrower is a party or
by which either Borrower or any of its properties is bound and which has not
been waived or consented to, or (B) result in the creation or imposition of any
lien, charge or encumbrance of any nature whatsoever, except as expressly
permitted in the Loan Agreement, upon any of the properties of either Borrower.
(iv) No consent, approval or authorization of, or filing,
registration or qualification with, any governmental authority (including,
without limitation, the FCC and any other Licensing Authority) is required to be
obtained by either Borrower or Holdco in connection with the execution,
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delivery or performance of this Amendment which has not already been obtained or
completed.
3. Affirmation of the Borrowers. The Borrowers acknowledge that the
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security interests and liens granted by the Borrowers to the Agent, for the
benefit of the Banks, pursuant to the Amended and Restated Subsidiary Pledge
Agreement dated January 17, 1997 between CTC-Del and KeyBank National
Association, as agent, the Security Agreement, the Mortgages and the other
Collateral Documents remain in full force and effect and shall continue to
secure all Obligations of the Borrowers.
4. Fees and Expenses. As required under the Original Agreement, the
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Borrowers, jointly and severally, will reimburse the Agent upon demand for all
out-of-pocket costs, charges and expenses of the Agent (including fees and
disbursements of special counsel to the Agent) in connection with the
preparation, negotiation, execution and delivery of this Amendment and the other
agreements or documents relating hereto or required hereby.
5. Counterparts. This Amendment may be executed in as many
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counterparts as may be convenient and shall become binding when each Borrower,
the Agent and the Banks have executed at least one counterpart.
6. Governing Law. This Amendment shall be a contract made under and
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governed by the laws of the State of Ohio, without regard to the conflicts of
law provisions thereof.
7. Binding Effect. This Amendment shall be binding upon and shall
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inure to the benefit of the Borrowers, the Agent and the Banks and their
respective successors and assigns.
8. Reference to Original Agreement. Except as amended hereby, the
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Original Agreement shall remain in full force and effect and is hereby ratified
and confirmed in all respects. On and after the effectiveness of the amendments
to the Original Agreement accomplished hereby, each reference in the Original
Agreement to "this Agreement", "hereunder", "hereof", "herein" or words of like
import, and each reference to the Original Agreement in any Note or other
Collateral Document, or other agreement, document or instrument executed and
delivered pursuant to the Original Agreement, shall be deemed a reference to the
Original Agreement, as amended hereby.
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IN WITNESS WHEREOF, the parties have executed this Third Amendment to
Loan Agreement as of the date first above written.
BORROWERS:
CASTLE TOWER CORPORATION
By: /s/ XXXX X. XXXX
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Name: Xxxx X. Xxxx
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Title: Senior Vice President - Operations
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CASTLE TOWER CORPORATION (PR)
By: /s/ XXXX X. XXXX
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Name: Xxxx X. Xxxx
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Title: Senior Vice President - Operations
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BANKS:
KEYBANK NATIONAL ASSOCIATION
By: /s/ XXXXXXX X. XXXXXX
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Xxxxxxx X. Xxxxxx
Vice President
XXXXX FARGO BANK (TEXAS),
NATIONAL ASSOCIATION
By: /s/ XXXXXXX X. XXXXXXX
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Xxxxxxx X. Xxxxxxx
Vice President
AGENT:
KEYBANK NATIONAL ASSOCIATION
By: /s/ XXXXXXX X. XXXXXX
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Xxxxxxx X. Xxxxxx
Vice President
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