1
Exhibit 10.5
FOURTH AMENDMENT
TO
CREDIT AGREEMENT
THIS FOURTH AMENDMENT TO CREDIT AGREEMENT, dated as of February 11,
2000 (this "Amendment" or this "Fourth Amendment"), is by and between THE
XXXXXXXX GROUP, INC., a Delaware corporation (the "Borrower"), certain financial
institutions party to the Credit Agreement (as hereinafter defined), FIRST UNION
NATIONAL BANK, a national banking association, as administrative agent for the
Lenders (the "Administrative Agent"), FLEET BANK, N.A. as documentation agent
("Documentation Agent") and KEYBANK NATIONAL ASSOCIATION, and BANK OF MONTREAL,
CHICAGO BRANCH as co-agents ("Co-Agents").
This Amendment amends that certain Credit Agreement dated as of January
22, 1999, between the Borrower, the Lenders, the Administrative Agent, the
Documentation Agent and the Co-Agents (as previously amended, as amended hereby
and as further amended, modified, restated or supplemented from time to time,
the "Credit Agreement"). All capitalized terms not otherwise defined in this
Amendment shall have the meanings assigned to them in the Credit Agreement.
RECITALS
A. The Borrower intends to purchase Station WETM-TV in Elmira,
New York (the "Station") by entering into a transaction with Xxxxx Television of
New York, Inc. ("Seller") in which the Borrower will (i) purchase a 20% equity
interest in Seller and (ii) enter into an LMA with respect to the Station (which
LMA would terminate, among other reasons, upon any foreclosure thereon by the
Banks following any Event of Default under the Credit Agreement). The foregoing
transaction is defined herein as the "Elmira Station Transaction". The parties
to the Elmira Station Transaction intend that the Borrower or one of its
subsidiaries will ultimately own or control the Station through the exercise of
a put by Seller or an option by the Borrower pursuant to the documents governing
such transaction. The Borrower has requested that the Credit Agreement be
amended to make clear that the Elmira Station Transaction and any similarly
structured transaction in the future be treated as an Acquisition.
B. The Required Lenders, the Administrative Agent, the
Documentation Agent and the Co-Agents are willing to agree to so amend the
Credit Agreement on the terms and conditions set forth herein.
2
STATEMENT OF AGREEMENT
NOW, THEREFORE, in consideration of the mutual covenants contained herein
and in the Credit Agreement, and for other good and valuable considerations,
the receipt and sufficiency of which are hereby acknowledged, each of the
Borrower, the Lenders, the Administrative Agent, the Documentation Agent and
the Co-Agents hereby agree as follows:
ARTICLE I.
AMENDMENTS TO CREDIT AGREEMENT
1.1 New Defined Term. The following is hereby added in appropriate
alphabetical order to Section 1.1 of the Credit Agreement:
"Fourth Amendment" shall mean the Fourth
Amendment to Credit Agreement, dated as of
February 11, 2000, between the Borrower, the
Administrative Agent, the Documentation Agent,
the Co-Agents and the Required Lenders.
1.2 Elmira Acquisition: (a) The definition of "Acquisition" is hereby
amended by adding the following as the third sentence thereof: "For purposes of
this Agreement, the Elmira Station Transaction (as defined in the Fourth
Amendment) and any similarly structured transaction in which the Borrower (or
a Subsidiary), on terms and conditions satisfactory to the Administrative Agent,
purchases for value any shares of Capital Stock in any Person, together with an
option to acquire additional Capital Stock sufficient to give the Borrower (or
such Subsidiary) a majority interest in such Person, shall be considered to be
an Acquisition."
(b) The Elmira Transaction is deemed to be a Permitted Acquisition.
ARTICLE II.
REPRESENTATIONS AND WARRANTIES
The Borrower hereby certifies and warrants to the Administrative Agent and
the Lenders that (a) after giving effect to the amendments effected hereby,
each of the representations and warranties contained in ARTICLE V of the Credit
Agreement and in the other Credit Documents are true and correct on the date
hereof with the same effect as though made on the date hereof, both immediately
before and after giving effect to this Amendment (except to the extent any such
representation or warranty is expressly stated to have been made as of a
specific date, in which case such representation or warranty shall be true and
correct as of such specified date), and (b) after giving effect to the
amendments effected hereby, no Default or Event of Default shall have occurred
and be continuing on the date hereof.
2
3
ARTICLE III.
GENERAL
3.1 FULL FORCE AND EFFECT. The Credit Agreement, as expressly amended
hereby, shall continue in full force and effect in accordance with the
provisions thereof on the date hereof. As used in the Credit Agreement,
"hereinafter," "hereto," "hereof," and words of similar import shall, unless
the context otherwise requires, mean the Credit Agreement after amendment by
this Amendment.
3.2 APPLICABLE LAW. This Amendment shall be governed by and construed in
accordance with the internal laws and judicial decisions of the State of North
Carolina.
3.3 COUNTERPARTS. This Amendment may be executed in two or more
counterparts, each of which shall constitute an original, but all of which when
taken together shall constitute but one instrument.
3.4 EXPENSES. The Borrower agrees to pay all reasonable out-of-pocket
expenses incurred by the Administrative Agent in connection with the
preparation, execution and delivery of this Amendment, including, without
limitation, all reasonable attorneys' fees.
3.5 FURTHER ASSURANCES. The Borrower shall execute and deliver to
Administrative Agent such documents, certificates and opinions as the
Administrative Agent may reasonably request to effect the amendment contemplated
by this Amendment and to continue the existence, perfection and first priority
of the Administrative Agent's security interests in the Collateral.
3.6 HEADINGS. The headings of this Amendment are for the purposes of
reference only and shall not affect the construction of this Amendment.
[This space intentionally left blank]
3
4
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed and delivered by their duly authorized officers all as of the date
first above written.
THE XXXXXXXX GROUP, INC.
By: /s/ Xxxxx Xxxxxxxx
---------------------------------------------
Title: Xxxxx Xxxxxxxx - Senior Vice President/CIO
------------------------------------------
(signatures continued)
4
5
FIRST UNION NATIONAL BANK
as Administrative Agent and as Lender
By: /s/
---------------------------------
Title: SVP
---------------------------------
(signatures continued)
5
6
FLEET BANK, N.A.
By: /s/ Xxxxxx Xxxxxxxx
-----------------------------------
XXXXXX XXXXXXXX
Title: VICE PRESIDENT
-----------------------------------
(signatures continued)
6
7
BANK OF MONTREAL, CHICAGO BRANCH
By: /s/ Xxx Xxxxxxxxx
--------------------------------
XXX XXXXXXXXX
Title: DIRECTOR
--------------------------------
(signatures continued)
7
8
KEYBANK NATIONAL ASSOCIATION
By: /s/ Xxxxxxx X. Xxxxx, Xx.
--------------------------------
XXXXXXX X. XXXXX, XX.
Title: ASSISTANT VICE PRESIDENT
--------------------------------
(signatures continued)
8
9
U.S. BANK NATIONAL ASSOCIATION
By: /s/ Xxxxxxx X. Xxxxxxxx
--------------------------------
Xxxxxxx X. Xxxxxxxx
Title: Vice President
--------------------------------
(signatures continued)
9
10
BANK OF AMERICA, N.A.
By: /s/ Xxxxxx X. Xxxxxxx
--------------------------------
Xxxxxx X. Xxxxxxx
Title: Vice President
--------------------------------
(signatures continued)
10
00
XXX XXXX XX XXXX XXXXXX
By: /s/ Xxx X. Xxxxxxx
------------------------------------
XXX X. XXXXXXX
Title: AUTHORIZED SIGNATORY
---------------------------------
(signatures continued)
11
12
THE CIT GROUP/EQUIPMENT
FINANCING, INC.
By: /s/ Xxxxxx X. X. Xxxxxxx
------------------------------------
XXXXXX X. X. XXXXXXX
Title: ASSISTANT VICE PRESIDENT
---------------------------------
(signatures continued)
13
13
FIRST HAWAIIAN BANK
By: /s/ Xxxxxx Xxxxxxxx
------------------------------------
XXXXXX XXXXXXXX
Title: ASST. VICE PRESIDENT
---------------------------------
(signatures continued)
15
14
CREDIT INDUSTRIEL ET COMMERCIAL
By: /s/ Xxxxxx Xxxxxx
------------------------------------
Xxxxxx Xxxxxx
Title: Vice President
---------------------------------
By: /s/ Xxxx Xxxxxxx
------------------------------------
Xxxx Xxxxxxx
Title: First Vice President
---------------------------------
(signatures continued)
17
15
MICHIGAN NATIONAL BANK
By: /s/ Xxxxxxx X. Xxxxxx
----------------------------------
Xxxxxxx X. Xxxxxx
Title: Vice President
-------------------------------
(signatures continued)
18
16
WASHINGTON MUTUAL BANK
(dba WESTERN BANK)
By: /s/ Xxxxx X. Xxxxxxx
----------------------------------
Xxxxx X. Xxxxxxx
Title: Vice President
-------------------------------
(signatures continued)
19
17
NATEXIS BANQUE POPULAIRES
(formerly known as Natexis Banque)
By: /s/ XXXX X. XXXXX
----------------------------------
XXXX X. XXXXX
Title: ASSISTANT VICE PRESIDENT
-------------------------------
By: /S/ XXXXXXX X. XXXXX
----------------------------------
XXXXXXX X. XXXXX
Title: SENIOR VICE PRESIDENT
-------------------------------
20
18
ACKNOWLEDGEMENT OF GUARANTY
Each of the undersigned, as a guarantor of the Obligations of The Xxxxxxxx
Group, Inc. (the "Company") under the Credit Agreement, dated as of January 22,
1999, among the Company, certain financial institutions party thereto, First
Union National Bank, in its capacity as administrative agent, Fleet Bank, N.A.,
in its capacity as documentation agent, and KeyBank National association and
Bank of Montreal, Chicago Branch, as co-agents (the "Credit Agreement"), hereby
consents to the foregoing Fourth Amendment to Credit Agreement, and further
waives any defense to its guaranty liability occasioned by such amendment
(including without limitation the extension of the maturity of the Loans as
contemplated thereby). The foregoing consent and waiver of the undersigned is
made as of the date of the Fourth Amendment.
XXXXXXXX AIRPORT ADVERTISING, INC. XXXXXXXX COMMUNICATIONS OF
MASSACHUSETTS, INC.
By: /s/ Xxxxx Xxxxxxxx By: /s/ Xxxxx Xxxxxxxx
------------------------- -----------------------
Title: Xxxxx Xxxxxxxx -- Title: Xxxxx Xxxxxxxx --
Assistant Secretary Assistant Secretary
AK MEDIA GROUP, INC. CENTRAL NEW YORK NEWS, INC.
By: /s/ Xxxxx Xxxxxxxx By: /s/ Xxxxx Xxxxxxxx
------------------------- -----------------------
Title: Xxxxx Xxxxxxxx -- Title: Xxxxx Xxxxxxxx --
Assistant Secretary Assistant Secretary
KVOS TV, LTD. TC AVIATION, INC.
By: /s/ Xxxxx Xxxxxxxx By: /s/ Xxxxx Xxxxxxxx
------------------------- -----------------------
Title: Xxxxx Xxxxxxxx -- Title: Xxxxx Xxxxxxxx --
Assistant Secretary Assistant Secretary
21
