b) Conditions Precedent. The effectiveness of this Fifth Amendment is subject to the Administrative Agent's receipt of a fully executed copy of the Consent and Acknowledgment of the Subsidiaries of the Borrower in the form attached hereto as Exhibit...
EXHIBIT 10.4
FIFTH AMENDMENT TO CREDIT AGREEMENT
THIS FIFTH AMENDMENT TO CREDIT AGREEMENT (this "Fifth Amendment"),
---------------
dated effective as of December 31, 1997, is entered into by and among Xxxxxxxx
Broadcasting Company, Inc. (the "Borrower"), a Delaware corporation formerly
--------
known as Act III Broadcasting, Inc. and successor by merger to A-3 Acquisition,
Inc., Xxxxxxxx Broadcast Holdings, Inc. (the "Parent"), a Delaware corporation
------
formerly known as A-3 Holdings, Inc., the Lenders parties hereto, and
NationsBank of Texas, N.A., as Administrative Agent for the Lenders and as a
Lender, with reference to the hereinafter described Credit Agreement.
Capitalized terms used and not otherwise defined herein shall have the meanings
ascribed to them in such Credit Agreement.
RECITALS
A. A-3 Acquisition, Inc., a Delaware corporation, predecessor in
interest to the Borrower, A-3 Holdings, Inc., a Delaware corporation,
precedessor in interest to the Parent, the Administrative Agent, the other
members of the Agent Group and the Lenders entered into that certain Credit
Agreement, dated January 4, 1996 (as amended, modified, restated, supplemented,
renewed, extended, rearranged or substituted from time to time, the "Credit
------
Agreement").
---------
B. The Borrower, the Parent and the Majority Lenders entered into
(i) that certain First Amendment to Credit Agreement and Limited Waiver and
Consent, dated as of May 24, 1996, (ii) that certain Second Amendment to Credit
Agreement, dated as of July 10, 1996, (iii) that certain Third Amendment to
Credit Agreement, dated as of December 31, 1996 and (iv) that certain Fourth
Amendment to Credit Agreement, dated as of June 26, 1997 (collectively, the
"Amendments").
-----------
C. The Borrower, the Parent and the Lenders parties hereto wish to
enter into this Fifth Amendment in order to further amend the Credit Agreement
as hereinafter set forth.
NOW, THEREFORE, for valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto hereby agree as
follows:
Section 1. AMENDMENT TO CREDIT AGREEMENT
Subject to the terms and conditions set forth herein, and in reliance
upon the representations and warranties of the Borrower and the Parent herein
contained, the Borrower, the Parent and the Lenders parties hereto, who
constitute not less than the Majority Lenders, hereby amend Section 8.1(f) of
--------------
the Credit Agreement by deleting the number "$3,000,000" in item (ii) thereof
and replacing in lieu thereof the number "$4,000,000".
Section 2. REPRESENTATIONS AND WARRANTIES
The Borrower and the Parent hereby represent and warrant to the
Administrative Agent and the Lenders that (a) the execution, delivery and
performance of this Fifth Amendment has been authorized by all requisite
corporate action on the part of the Borrower and the Parent; and (b) this Fifth
Amendment constitutes a legal, valid, and binding obligation of the Borrower and
the Parent, enforceable in accordance with the terms hereof.
Section 3. MISCELLANEOUS
(a) Consent of Parent. Parent hereby consents to the amendments to
the Credit Agreement set forth in this Fifth Amendment and the other Amendments
and confirms and agrees that its obligations under Section 11 of the Credit
----------
Agreement are and remain in full force and effect and that no defenses exist
which the Parent may assert against any of the Lenders with respect to the
enforcement of the Lenders' rights under Section 11 of the Credit Agreement.
----------
(b) Conditions Precedent. The effectiveness of this Fifth Amendment
is subject to the Administrative Agent's receipt of a fully executed copy of the
Consent and Acknowledgment of the Subsidiaries of the Borrower in the form
attached hereto as Exhibit A.
---------
(c) Ratification and Confirmation of Loan Documents. Except as
specifically amended hereby, the Credit Agreement and other Loan Documents
remain in full force and effect and are hereby ratified and confirmed by the
Borrower and the Parent, and the execution and delivery of this Fifth Amendment
shall not, except as expressly provided herein, operate as an amendment or
waiver of any right, power or remedy of the Administrative Agent, the Lenders or
the Managing Agents under the Credit Agreement.
(d) Headings. Section and subsection headings in this Fifth Amendment
are included herein for convenience of reference only and shall not constitute a
part of this Fifth Amendment for any other purpose or be given any substantive
effect.
(e) APPLICABLE LAW. THIS FIFTH AMENDMENT SHALL BE GOVERNED BY, AND
SHALL BE CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF
NEW YORK, WITHOUT REGARD TO CONFLICTS OF LAW PRINCIPLES.
(f) Counterparts. This Fifth 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 an original, but all
such counterparts together shall constitute but one and the same instrument;
signature pages may be detached from multiple separate counterparts and attached
to a single counterpart so that all signature pages are physically attached to
the same document.
2
(g) FINAL AGREEMENT. THIS FIFTH AMENDMENT, TOGETHER WITH THE
AMENDMENTS, THE CREDIT AGREEMENT AND OTHER LOAN DOCUMENTS, REPRESENTS THE FINAL
AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR,
CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO
UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.
[Remainder of Page Intentionally Left Blank; Signature Pages Follow]
3
IN WITNESS WHEREOF, the parties hereto have caused this Fifth Amendment to
be duly executed and delivered by their proper and duly authorized officers as
of the day and year first above written.
XXXXXXXX BROADCASTING COMPANY, INC.
By: /s/ Xxxxxxx Xxxxxxx
--------------------------------
Name: XXXXXXX XXXXXXX
Title: C.F.O.
XXXXXXXX BROADCAST HOLDINGS, INC.
By: /s/ Xxxxxxx Xxxxxxx
--------------------------------
Name: XXXXXXX XXXXXXX
Title: C.F.O.
NATIONSBANK OF TEXAS, N.A.,
as Administrative Agent and as a Lender
By:
--------------------------------
Name:
Title:
BANKERS TRUST COMPANY,
as a Lender
By:
--------------------------------
Name:
Title:
IN WITNESS WHEREOF, the parties hereto have caused this Fifth Amendment to
be duly executed and delivered by their proper and duly authorized officers as
of the day and year first above written.
XXXXXXXX BROADCASTING COMPANY, INC.
By:
--------------------------------
Name:
Title:
XXXXXXXX BROADCAST HOLDINGS, INC.
By:
--------------------------------
Name:
Title:
NATIONSBANK OF TEXAS, N.A.,
as Administrative Agent and as a Lender
By: /s/ Xxxxxxx Xxxx
--------------------------------
Name: Xxxxxxx Xxxx
Title: Vice President
BANKERS TRUST COMPANY,
as a Lender
By:
--------------------------------
Name:
Title:
IN WITNESS WHEREOF, the parties hereto have caused this Fifth Amendment to
be duly executed and delivered by their proper and duly authorized officers as
of the day and year first above written.
XXXXXXXX BROADCASTING COMPANY, INC.
By:
--------------------------------
Name:
Title:
XXXXXXXX BROADCAST HOLDINGS, INC.
By:
--------------------------------
Name:
Title:
NATIONSBANK OF TEXAS, N.A.,
as Administrative Agent and as a Lender
By:
--------------------------------
Name:
Title:
BANKERS TRUST COMPANY,
as a Lender
By: /s/ Xxxx X. Xxxxxxxx
--------------------------------
Name: XXXX X. XXXXXXXX
Title: VICE PRESIDENT
BANKBOSTON, N.A.,
as a Lender
By: /s/ Xxxxxx X. Xxxxxxx
--------------------------------
Name: XXXXXX X XXXXXXX
Title: MANAGING DIRECTOR
THE CHASE MANHATTAN BANK,
as a Lender
By:
--------------------------------
Name:
Title:
NEW YORK LIFE INSURANCE COMPANY,
as a Lender
By:
--------------------------------
Name:
Title:
BANKBOSTON, N.A.,
as a Lender
By:
--------------------------------
Name:
Title:
THE CHASE MANHATTAN BANK,
as a Lender
By: /s/ Xxx X. Xxxxx
--------------------------------
Name: XXX X. XXXXX
Title: VICE PRESIDENT
NEW YORK LIFE INSURANCE COMPANY,
as a Lender
By:
--------------------------------
Name:
Title:
BANKBOSTON, N.A.,
as a Lender
By:
--------------------------------
Name:
Title:
THE CHASE MANHATTAN BANK,
as a Lender
By:
--------------------------------
Name:
Title:
NEW YORK LIFE INSURANCE COMPANY,
as a Lender
By:/s/ Xxxx X. Xxxxxxx
--------------------------------
Name: XXXX X. XXXXXXX
Title: MANAGING DIRECTOR
BANK OF AMERICA NT & SA,
as a Lender
By: /s/ Xxxx X. Xxxxx
--------------------------------
Name: Xxxx X. Xxxxx
Title: Vice President
BANK OF MONTREAL, CHICAGO BRANCH,
as a Lender
By:
--------------------------------
Name:
Title:
NATEXIS BANQUE BFCE, formerly known as
Banque Francaise du Commerce Exterieur,
as a Lender
By:
--------------------------------
Name:
Title:
BANQUE PARIBAS,
as a Lender
By:
--------------------------------
Name:
Title:
BANK OF AMERICA NT & SA,
as a Lender
By:
--------------------------------
Name:
Title:
BANK OF MONTREAL, CHICAGO BRANCH,
as a Lender
By: /s/ Xxxxxx Xxx
--------------------------------
Name: XXXXXX XXX
Title: SENIOR VICE PRESIDENT
NATEXIS BANQUE BFCE, formerly known as
Banque Francaise du Commerce Exterieur,
as a Lender
By:
--------------------------------
Name:
Title:
BANQUE PARIBAS,
as a Lender
By:
--------------------------------
Name:
Title:
BANK OF AMERICA NT & SA,
as a Lender
By:
--------------------------------
Name:
Title:
BANK OF MONTREAL, CHICAGO BRANCH,
as a Lender
By:
--------------------------------
Name:
Title:
NATEXIS BANQUE BFCE, formerly known as
Banque Francaise du Commerce Exterieur,
as a Lender
By: /s/ Xxxx X. Xxxxx /s/[SIGNATURE APPEARS HERE]
----------------------------------------------
Name: XXXX X. XXXXX [NAME APPEARS HERE]
Title: ASSOCIATE VICE PRESIDENT
BANQUE PARIBAS,
as a Lender
By:
--------------------------------
Name:
Title:
BANK OF AMERICA NT & SA,
as a Lender
By:
--------------------------------
Name:
Title:
BANK OF MONTREAL, CHICAGO BRANCH,
as a Lender
By:
--------------------------------
Name:
Title:
NATEXIS BANQUE BFCE, formerly known as
Banque Francaise du Commerce Exterieur,
as a Lender
By:
--------------------------------
Name:
Title:
BANQUE PARIBAS,
as a Lender
By: /s/ Xxxxx X. Xxxxxxx
--------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Director
CIBC INC.,
as a Lender
By: /s/ Xxxxx Xxxxx
--------------------------------
Name: XXXXX XXXXX
Title: EXECUTIVE DIRECTOR
CIBC Xxxxxxxxxxx Corp, AS AGENT
CORESTATES BANK, N.A.,
as a Lender
By:
--------------------------------
Name:
Title:
XXXXXXX XXXXX SENIOR FLOATING RATE
FUND, INC., as a Lender
By:
--------------------------------
Name:
Title:
FLEET NATIONAL BANK,
formerly known as Shawmut Bank Connecticut, N.A.,
as a Lender
By:
--------------------------------
Name:
Title:
CIBC INC.,
as a Lender
By:
--------------------------------
Name:
Title:
CORESTATES BANK, N.A.,
as a Lender
By: /s/ [SIGNATURE APPEARS HERE]
--------------------------------
Name:
Title: Vice President
XXXXXXX XXXXX SENIOR FLOATING RATE
FUND, INC., as a Lender
By:
--------------------------------
Name:
Title:
FLEET NATIONAL BANK,
formerly known as Shawmut Bank Connecticut, N.A.,
as a Lender
By:
--------------------------------
Name:
Title:
CIBC INC.,
as a Lender
By:
--------------------------------
Name:
Title:
CORESTATES BANK, N.A.,
as a Lender
By:
--------------------------------
Name:
Title:
XXXXXXX XXXXX SENIOR FLOATING RATE
FUND, INC., as a Lender
By: /s/ Xxxxxx X. Xxxxxx
--------------------------------
Name: XXXXXX X. XXXXXX
Title: AUTHORIZED SIGNATORY
FLEET NATIONAL BANK,
formerly known as Shawmut Bank Connecticut, N.A.,
as a Lender
By:
--------------------------------
Name:
Title:
CIBC INC.,
as a Lender
By:
--------------------------------
Name:
Title:
CORESTATES BANK, N.A.,
as a Lender
By:
--------------------------------
Name:
Title:
XXXXXXX XXXXX SENIOR FLOATING RATE
FUND, INC., as a Lender
By:
--------------------------------
Name:
Title:
FLEET NATIONAL BANK,
formerly known as Shawmut Bank Connecticut, N.A.,
as a Lender
By: /s/ Xxxxxxx X. XxXxxxxxxx
--------------------------------
Name: Xxxxxxx X. Xxxxxxxxxx
Title: Supervisor
SOCIETE GENERALE,
as a Lender
By: /s/ Xxxx Xxxxx-Xxxx
--------------------------------
Name: XXXX XXXXX-XXXX
Title: VICE PRESIDENT
THE TRAVELERS INSURANCE COMPANY,
as a Lender
By:
--------------------------------
Name:
Title:
UNION BANK OF CALIFORNIA, N.A.,
successor by merger to Union Bank,
as a Lender
By:
--------------------------------
Name:
Title:
SOCIETE GENERALE,
as a Lender
By:
--------------------------------
Name:
Title:
THE TRAVELERS INSURANCE COMPANY,
as a Lender
By: /s/ Xxxx X. Xxxxxxxx
--------------------------------
Name: XXXX X. XXXXXXXX
Title: Second Vice President
UNION BANK OF CALIFORNIA, N.A.,
successor by merger to Union Bank,
as a Lender
By:
--------------------------------
Name:
Title:
SOCIETE GENERALE,
as a Lender
By:
--------------------------------
Name:
Title:
THE TRAVELERS INSURANCE COMPANY,
as a Lender
By:
--------------------------------
Name:
Title:
UNION BANK OF CALIFORNIA, N.A.,
successor by merger to Union Bank,
as a Lender
By: /s/ Xxxxxxx X. XxXxxxx
--------------------------------
Name: Xxxxxxx X. XxXxxxx
Title: Senior Vice President
XXX XXXXXX AMERICAN CAPITAL PRIME
RATE INCOME TRUST, as a Lender
By: /s/ Xxxxxxx X. Xxxxxxx
--------------------------------
Name: XXXXXXX X. XXXXXXX
Title: Senior Vice President & Director
XXX XXXXXX CLO I, LIMITED
By: Xxx Xxxxxx American Capital
Management, Inc., as Collateral Manager
By: /s/ Xxxxxxx X. Xxxxxxx
------------------------------------
Name: XXXXXXX X. XXXXXXX
Title: Senior Vice President & Director
NEW YORK LIFE INSURANCE AND ANNUITY CORPORATION,
as a Lender
By: NEW YORK LIFE INSURANCE
COMPANY
By:
------------------------------------
Name:
Title:
XXX XXXXXX AMERICAN CAPITAL PRIME
RATE INCOME TRUST, as a Lender
By:
--------------------------------
Name:
Title:
XXX XXXXXX CLO I, LIMITED
By: Xxx Xxxxxx American Capital
Management, Inc., as Collateral Manager
By:
------------------------------------
Name:
Title:
NEW YORK LIFE INSURANCE AND ANNUITY CORPORATION,
as a Lender
By: NEW YORK LIFE INSURANCE
COMPANY
By: /s/ Xxxx X. Xxxxxxx
------------------------------------
Name: XXXX X. XXXXXXX
Title: MANAGING DIRECTOR
AERIES FINANCE LTD.,
as a Lender
By: /s/ Xxxxxx Xxx Xxxxxxx
--------------------------------
Name: Xxxxxx Xxx Xxxxxxx
Title: Director
SENIOR DEBT PORTFOLIO,
as a Lender
By: BOSTON MANAGEMENT AND
RESEARCH, as Investment Advisor
By:
----------------------------
Name:
Title:
KZH HOLDING CORPORATION III,
as a Lender
By:
-----------------------------------
Name:
Title:
AERIES FINANCE LTD.,
as a Lender
By:
--------------------------------
Name:
Title:
SENIOR DEBT PORTFOLIO,
as a Lender
By: BOSTON MANAGEMENT AND
RESEARCH, as Investment Advisor
By: /s/ Payson X. Xxxxxxxxx
----------------------------
Name: PAYSON X. XXXXXXXXX
Title: Vice President
KZH HOLDING CORPORATION III,
as a Lender
By:
-----------------------------------
Name:
Title:
AERIES FINANCE LTD.,
as a Lender
By:
--------------------------------
Name:
Title:
SENIOR DEBT PORTFOLIO,
as a Lender
By: BOSTON MANAGEMENT AND
RESEARCH, as Investment Advisor
By:
---------------------------------
Name:
Title:
KZH HOLDING CORPORATION III,
as a Lender
By: /s/ X. Xxxxxx
----------------------------------------
Name: Xxxxxxxx X. Xxxxxx
Title: Authorized Agent
