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EXHIBIT 4
FOURTH AMENDMENT TO CREDIT AGREEMENT
THIS FOURTH AMENDMENT TO CREDIT AGREEMENT (this "Fourth Amendment"),
dated as of October 8, 1999, is entered into among XXXXXXX ENTERTAINMENT
COMPANY, a Delaware corporation ("Borrower"), the banks listed on the signature
pages hereof (collectively, "Lenders"), and BANK OF AMERICA, N.A. (formerly
known as 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,
that certain Second Amendment to Credit Agreement, dated as of March 24, 1998,
and that certain Third Amendment to Credit Agreement, dated as of March 22,
1999, but effective as of December 31, 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, Lenders and Administrative Lender desire to amend the
Credit Agreement and waive an anticipated Event of Default that would occur
pursuant to (a) Section 4.5 of the Credit Agreement as a result of the CBS Stock
Transaction (as defined in Section 1(a) of this Fourth Amendment) and (b)
Section 4.3 of the Credit Agreement as a result of exceeding the permitted
Capital Expenditures for the 1999 fiscal year.
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 defined term "CBS Stock Transaction" is hereby added to Section
1.1 of the Credit Agreement in proper alphabetical order to read as follows:
"CBS Stock Transaction" means the acquisition by CBS of KTVT in
exchange for CBS preferred stock which is convertible into 10,141,691
shares of CBS common stock, among other consideration, which will occur
on or about October 12, 1999.
(b) Section 4.4 of the Credit Agreement is hereby amended to read as
follows:
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"4.4 Net Worth. Borrower shall not permit Net Worth to be less than
an amount equal to the sum of (i) 90% of Net Worth on December 31,
1997, plus (ii) 50% of the cumulative Net Income from and including
January 1, 1998 (but excluding from the calculation of cumulative Net
Income (a) the effect, if any, of any fiscal quarter (or any portion of
a fiscal quarter not yet ended) for which Net Income was a negative
number and (b) the amount of any gain incurred as a result of the CBS
Stock Transaction), plus (iii) 75% of the Net Proceeds received by
Borrower or any of its Subsidiaries from any Equity Issuance occurring
on and after January 1, 1998, plus (iv) any increase in stockholders'
equity of Borrower pursuant to the conversion or exchange of preferred
Capital Stock of Borrower into common Capital Stock of Borrower, plus
(v) an amount equal to 75% of the net worth of any Person that becomes
a Subsidiary of Borrower or substantially all of the assets of which
are acquired by Borrower or any of its Subsidiaries to the extent the
purchase price therefor is paid in Capital Stock of Borrower or any of
its Subsidiaries, plus (vi) an amount equal to the gain incurred by the
Borrower as a result of the CBS Stock Transaction."
2. WAIVER. Subject to satisfaction of the conditions of effectiveness
set forth in Section 4 of this Fourth Amendment and the termination of the
waiver as provided herein, the Lenders hereby waive the anticipated Event of
Default with respect to (a) Section 4.5 of the Credit Agreement which would
occur as a result of the CBS Stock Transaction and (b) Section 4.3 of the Credit
Agreement which would occur as a result of exceeding the permitted Capital
Expenditures for the fiscal year 1999. The waiver provided herein does not
affect any other covenant or provision of the Credit Agreement. The waiver
provided in this Section 2 shall terminate automatically without any action by
the Administrative Lender, the Lenders or any other Person and be of no further
force or effect upon the earliest to occur of (a) February 4, 2000, (b) the
sale, disposition, pledge or other encumbrance, or the agreement to sell,
dispose or pledge or otherwise encumber, of all or any of the capital stock
acquired by the Borrower in the CBS Stock Transaction (or any stock obtained in
exchange or conversion of such stock), (c) the making by the Borrower and its
Subsidiaries of additional Investments after October 12, 1999 (excluding any
appreciation of Investments existing on October 12, 1999) in an aggregate amount
in excess of $20,000,000, or (d) a determination that the aggregate Capital
Expenditures for fiscal year 1999 are in excess of $125,000,000. Upon the
termination of the waiver, and notwithstanding anything in the Credit Agreement
to the contrary, an Event of Default shall automatically occur under the Credit
Agreement whether or not the Borrower is in compliance with Section 4.5 of the
Credit Agreement at such time.
3. 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 and the
waiver contemplated by the foregoing Section 2:
(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
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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
Fourth Amendment and the Credit Agreement, as amended hereby, and this Fourth
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 Fourth
Amendment or the Credit Agreement, as amended by this Fourth 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 Fourth Amendment or the
acknowledgment of this Fourth Amendment by any Guarantor.
4. CONDITIONS OF EFFECTIVENESS. This Fourth Amendment shall be
effective as of October 8, 1999, subject to the following:
(a) Administrative Lender shall have received counterparts of this
Fourth Amendment executed by Determining Lenders;
(b) Administrative Lender shall have received counterparts of this
Fourth Amendment executed by Borrower and acknowledged by each Guarantor; and
(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.
5. GUARANTOR ACKNOWLEDGMENT. By signing below, each of the Guarantors
(i) acknowledges, consents and agrees to the execution and delivery of this
Fourth 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 Fourth Amendment or any of the provisions
contemplated herein, (iii) ratifies and confirms its obligations under its
Guaranty,
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and (iv) acknowledges and agrees that it has no claims or offsets against, or
defenses or counterclaims to, its Guaranty.
6. REFERENCE TO THE CREDIT AGREEMENT.
(a) Upon the effectiveness of this Fourth 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 or modified by
this Fourth Amendment.
(b) The Credit Agreement, as amended or modified by this Fourth
Amendment, and all other Loan Documents shall remain in full force and effect
and are hereby ratified and confirmed.
7. 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 Fourth 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
Fourth Amendment).
8. EXECUTION IN COUNTERPARTS. This Fourth 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.
9. GOVERNING LAW: BINDING EFFECT. This Fourth 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.
10. HEADINGS. Section headings in this Fourth Amendment are included
herein for convenience of reference only and shall not constitute a part of this
Fourth Amendment for any other purpose.
11. ENTIRE AGREEMENT. THE CREDIT AGREEMENT, AS AMENDED BY THIS FOURTH
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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IN WITNESS WHEREOF, the parties hereto have executed this Fourth
Amendment to be effective as of the date first above written.
XXXXXXX ENTERTAINMENT COMPANY
By: /s/ Xxxxxx X. Xxxxx
-------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Executive Vice President
Chief Operating Officer
Chief Financial Officer
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BANK OF AMERICA, N.A., as a
Lender, Swing Line Bank,
Issuing Bank and as
Administrative Lender
By: /s/ Xxxxxxx X. Xxxxx
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Name: Xxxxxxx X. Xxxxx
Title: Principal
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THE BANK OF NEW YORK
By: /s/ Xxxxxxx X. Xxxxxx
-------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
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SUNTRUST BANK, NASHVILLE, N.A.
By: /s/ Xxxxx X. Xxxxxxx
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Name: Xxxxx X. Xxxxxxx
Title: Senior Vice President
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CREDIT LYONNAIS NEW YORK BRANCH
By: /s/ Xxxxxx Xxxxxxxxx
-------------------------------------
Name: Xxxxxx Xxxxxxxxx
Title: Senior Vice President
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XXXXX XXXXX XXXX (XXXXX), NATIONAL
ASSOCIATION
By: /s/ Xxxxx X. Xxxxxx
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Name: Xxxxx X. Xxxxxx
Title: Vice President
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FIRST UNION NATIONAL BANK
By: /s/ Xxxxx X. Xxxxxxxx
-------------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Vice President
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THE INDUSTRIAL BANK OF JAPAN, LIMITED,
ATLANTA AGENCY
By: /s/ Minami Miura
-------------------------------------
Name: Minami Miura
Title: Vice President
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COMERICA BANK
By: /s/ Xxxxxxxx X. Xxxxxxxxx
-------------------------------------
Name: Xxxxxxxx X. Xxxxxxxxx
Title: Assistant Vice President
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GENERAL ELECTRIC CAPITAL CORPORATION
By: /s/ Xxxx Xxxxxxx
-------------------------------------
Name: Xxxx Xxxxxxx
Title: Duly Authorized Signatory
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XXX XXXX XX XXXX XXXXXX
By: /s/ Xxxxxxx X. Xxxxxxxxxx, Xx.
-------------------------------------
Name: Xxxxxxx X. Xxxxxxxxxx, Xx.
Title: Authorized Signatory
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WACHOVIA BANK, N.A.
By: /s/ Xxxxxxx Xxxxxxxxxx
-------------------------------------
Name: Xxxxxxx Xxxxxxxxxx
Title: Vice President
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BANK ONE, OKLAHOMA, NATIONAL
ASSOCIATION
By: /s/ Xxxxxx X. Xxxxxxxx
-------------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Senior Vice President
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ACKNOWLEDGED AND AGREED:
IDEA ENTERTAINMENT, INC.
By: /s/ Xxxxxx X. Xxxxx
-------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Vice President
XXXXXXX BROADCASTING COMPANY, L.P.
By: Xxxxxxx Communications, Inc.,
its General Partner
By: /s/ Xxxxxx X. Xxxxx
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Name: Xxxxxx X. Xxxxx
Title: Vice President
OPRYLAND ATTRACTIONS, INC.
By: /s/ Xxxxxx X. Xxxxx
-------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Vice President
OLH, G.P.
By: Opryland Hospitality, Inc.
By: /s/ Xxxxxx X. Xxxxx
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Name: Xxxxxx X. Xxxxx
Title: Vice President
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XXXXX-XXXX MUSIC PUBLISHING, INC.
(formerly known as OPRYLAND MUSIC
GROUP, INC.)
By: /s/ Xxxxxx X. Xxxxx
-------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Vice President
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