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Exhibit 4.5
THIRD AMENDMENT TO CREDIT AGREEMENT
THIS THIRD AMENDMENT TO CREDIT AGREEMENT (this "Third Amendment"),
dated as of March 22, 1999 but effective as of December 31, 1998, is entered
into among XXXXXXX ENTERTAINMENT COMPANY, a Delaware corporation ("Borrower"),
the banks listed on the signature pages hereof (collectively, "Lenders"), and
NATIONSBANK, N.A. (successor by merger to NationsBank of Texas, N.A.), as
Administrative Lender (in said capacity, "Administrative Lender").
BACKGROUND
A. Borrower, Lenders and Administrative Lender are parties to that
certain Credit Agreement, dated as of August 19, 1997, as amended by that
certain First Amendment to Credit Agreement, dated as of September 30, 1997, and
that certain Second Amendment to Credit Agreement, dated as of March 24, 1998
(said Credit Agreement, as amended, the "Credit Agreement"; the terms defined in
the Credit Agreement and not otherwise defined herein shall be used herein as
defined in the Credit Agreement).
B. Borrower, Lender and Administrative Lender desire to make an
amendment to the Credit Agreement.
NOW, THEREFORE, in consideration of the covenants, conditions and
agreements hereinafter set forth, and for other good and valuable consideration,
the receipt and adequacy of which are all hereby acknowledged, Borrower, Lenders
and Administrative Lender covenant and agree as follows:
1. AMENDMENTS TO CREDIT AGREEMENT.
(a) The definition of "Index Debt Rating" set forth in Section
1.1 of the Credit Agreement is hereby amended to read as follows:
"Index Debt Rating" means the rating applicable to Borrower's
senior, unsecured, non-credit enhanced long-term indebtedness for
borrower money; provided, however, for the Index Debt Rating to be
available for determination of the pricing of an interest rate or fees
hereunder, the rating shall not have been issued and outstanding for
more than twelve months.
(b) Section 4.2 of the Credit Agreement is hereby amended to read as
follows:
"4.2 EBITDA to Interest Charges. Borrower shall not permit the
ratio of EBITDA to Interest Charges to be less than (a) 2.50 to 1 at
any time during the period from the Agreement Date to and including
September 30, 1998, (b) 2.80 to 1 at any time after September 30, 1998
to and including December 31, 1998, (c) 3.00 to 1 at any time after
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December 31, 1998 to and including September 30, 1999, and (d) 3.25 at
any time thereafter."
(c) The Officer's Certificate-Financial in the form of Exhibit N to the
Credit Agreement is hereby amended to be in the form of Exhibit N to this Third
Amendment.
2. REPRESENTATIONS AND WARRANTIES TRUE; NO EVENT OF DEFAULT. By its
execution and delivery hereof, Borrower represents and warrants that after
giving effect to the amendments contemplated by the foregoing Section 1:
(a) the representations and warranties contained in the Credit
Agreement and the other Loan Documents are true and correct on and as of the
date hereof as though made on and as of such date, except to the extent that any
such representation or warranty relates expressly to a specified date or is no
longer correct because of a change in circumstances permitted by the Loan
Documents;
(b) no event has occurred and is continuing which constitutes a
Default or Event of Default;
(c) Borrower has full power and authority to execute and deliver this
Third Amendment and the Credit Agreement, as amended hereby, and this Third
Amendment and the Credit Agreement, as amended hereby, constitute the legal,
valid and binding obligations of Borrower, enforceable in accordance with their
respective terms, except as enforceability may be limited by applicable debtor
relief laws and by general principles of equity (regardless of whether
enforcement is sought in a proceeding in equity or at law) and except as rights
to indemnity may be limited by federal or state securities laws;
(d) neither the execution, delivery and performance of this Third
Amendment or the Credit Agreement, as amended by this Third Amendment, will
contravene or conflict with any Law to which Borrower or any of its Subsidiaries
is subject or any indenture, agreement or other instrument to which Borrower or
any of its Subsidiaries or any of their respective property is subject; and
(e) no authorization, approval, consent, or other action by, notice to,
or filing with, any Tribunal or other Person, is required for the execution,
delivery or performance by Borrower of this Third Amendment or the
acknowledgment of this Third Amendment by any Guarantor.
3. CONDITIONS OF EFFECTIVENESS. This Third Amendment shall be
effective as of December 31, 1998, subject to the following:
(a) Administrative Lender shall have received counterparts of this
Third Amendment executed by Determining Lenders;
(b) Administrative Lender shall have received counterparts of this
Third Amendment executed by Borrower and acknowledged by each Guarantor; and
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(c) Administrative Lender shall have received, in form and substance
satisfactory to Administrative Lender and its counsel, such other documents,
certificates and instruments as Administrative Lender reasonably shall require.
4. GUARANTOR ACKNOWLEDGEMENT. By signing below, each of the Guarantors
(i) acknowledges, consents and agrees to the execution and delivery of this
Third Amendment, (ii) acknowledges and agrees that its obligations in respect of
its Guaranty are not released, diminished, waived, modified, impaired or
affected in any manner by this Third Amendment or any of the provisions
contemplated herein, (iii) ratifies and confirms its obligations under its
Guaranty, and (iv) acknowledges and agrees that it has no claims or offsets
against, or defenses or counterclaims to, its Guaranty.
5. REFERENCE TO THE CREDIT AGREEMENT.
(a) Upon the effectiveness of this Third Amendment, each reference in
the Credit Agreement to "this Agreement", "hereunder", or words of like import
shall mean and be a reference to the Credit Agreement, as amended by this Third
Amendment.
(b) The Credit Agreement, as amended by this Third Amendment, and all
other Loan Documents shall remain in full force and effect and are hereby
ratified and confirmed.
6. COSTS, EXPENSES AND TAXES. Borrower agrees to pay on demand all
costs and expenses of the Administrative Lender in connection with the
preparation, reproduction, execution and delivery of this Third Amendment and
the other instruments and documents to be delivered hereunder (including the
reasonable fees and out-of-pocket expenses of counsel for the Administrative
Lender with respect thereto and with respect to advising the Lenders as to their
rights and responsibilities under the Credit Agreement, as amended by this Third
Amendment).
7. EXECUTION IN COUNTERPARTS. This Third Amendment may be executed in
any number of counterparts and by different parties hereto in separate
counterparts, each of which when so executed and delivered shall be deemed to be
an original and all of which taken together shall constitute but one and the
same instrument.
8. GOVERNING LAW: BINDING EFFECT. This Second Amendment shall be
governed by and construed in accordance with the laws of the State of Texas and
shall be binding upon Borrower and each Lender and their respective successors
and assigns.
9. HEADINGS. Section headings in this Third Amendment are included
herein for convenience of reference only and shall not constitute a part of this
Third Amendment for any other purpose.
10. ENTIRE AGREEMENT. THE CREDIT AGREEMENT, AS AMENDED BY THIS THIRD
AMENDMENT, AND THE OTHER LOAN DOCUMENTS REPRESENT THE FINAL AGREEMENT BETWEEN
THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS,
OR SUBSEQUENT ORAL AGREEMENTS BETWEEN THE PARTIES. THERE ARE NO UNWRITTEN ORAL
AGREEMENTS BETWEEN THE PARTIES.
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REMAINDER OF PAGE LEFT INTENTIONALLY BLANK
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IN WITNESS WHEREOF, the parties hereto have executed this Third
Amendment to be effective as of the date first above written.
XXXXXXX ENTERTAINMENT COMPANY
By:
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Name:
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Title:
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NATIONSBANK, N.A.
as a Lender, Swing Line Bank, Issuing
Bank and as Administrative Lender
By:
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Name:
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Title:
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THE BANK OF NEW YORK
By:
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Name:
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Title:
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THE FUJI BANK, LIMITED, ATLANTA AGENCY
By:
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Name:
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Title:
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SUNTRUST BANK, NASHVILLE, N.A.
By:
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Name:
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Title:
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FIRST AMERICAN NATIONAL BANK
By:
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Name:
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Title:
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CREDIT LYONNAIS NEW YORK BRANCH
By:
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Name:
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Title:
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BANQUE PARIBAS
By:
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Name:
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Title:
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By:
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Name:
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Title:
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XXXXX FARGO BANK (TEXAS), NATIONAL
ASSOCIATION
By:
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Name:
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Title:
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FIRST UNION NATIONAL BANK
By:
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Name:
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Title:
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THE SAKURA BANK, LIMITED
By:
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Name:
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Title:
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THE INDUSTRIAL BANK OF JAPAN, LIMITED,
ATLANTA AGENCY
By:
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Name:
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Title:
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COMERICA BANK
By:
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Name:
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Title:
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THE LONG-TERM CREDIT BANK OF JAPAN, LTD.
By:
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Name:
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Title:
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THE SANWA BANK, LIMITED
By:
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Name:
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Title:
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THE BANK OF NOVA SCOTIA
By:
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Name:
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Title:
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WACHOVIA BANK, N.A.
By:
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Name:
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Title:
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BANK OF TOKYO MITSUBISHI TRUST COMPANY
By:
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Name:
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Title:
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ACKNOWLEDGED AND AGREED:
IDEA ENTERTAINMENT, INC.
By:
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Name:
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Title:
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CNR, INC.
By:
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Name:
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Title:
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XXXXXXX BROADCASTING COMPANY, L.P.
By: Xxxxxxx Communications, Inc.,
its General Partner
By:
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Name:
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Title:
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OPRYLAND ATTRACTIONS, INC.
By:
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Name:
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Title:
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OLH, L.P.
By: Opryland Hospitality, Inc.
By:
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Name:
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Title:
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XXXXX-XXXX MUSIC PUBLISHING, INC.
(formerly known as OPRYLAND MUSIC GROUP, INC.)
By:
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Name:
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Title:
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