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Exhibit 4.2
THIRD AMENDMENT TO AMENDED AND RESTATED
CREDIT AGREEMENT
THIS THIRD AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT (the
"Third Amendment") is entered into as of the 7th day of January, 1997, by and
among XXXXXX XXXXXX, INC., a Tennessee corporation ("Xxxxxx"), SUNTRUST BANK,
NASHVILLE, N.A., a national banking association ("SunTrust"), the other banks
and lending institutions listed on the signature pages hereof and any assignees
of SunTrust or such other banks and lending institutions that become "Lenders"
(SunTrust and such other banks, lending institutions and assignees are referred
to collectively herein as the "Lenders"), and SUNTRUST BANK, NASHVILLE, N.A.,
in its capacity as agent for the Lenders (the "Agent").
R E C I T A L S:
WHEREAS, Lenders, Agent and Xxxxxx entered into an Amended and
Restated Credit Agreement dated as of December 13, 1995, as amended by that
certain First Amendment to Amended and Restated Credit Agreement dated as of
January 3, 1996, and as further amended by that certain Second Amendment to
Amended and Restated Credit Agreement dated as of November 15, 1996 (the
"Second Amendment") (as amended or otherwise modified from time to time, the
"Credit Agreement"), wherein Lenders agreed to extend certain financial
accommodations to Xxxxxx; and
WHEREAS, Xxxxxx previously requested that Lenders consent to the sale
of all of the music assets of the subsidiaries and divisions of Xxxxxx listed
on Exhibit A attached hereto and incorporated herein by this reference (the
"Music Asset Sales"), which consent was granted by Lenders pursuant to the
Second Amendment; and
WHEREAS, the Second Amendment requires Xxxxxx and Lenders to amend the
Credit Documents (as defined in the Credit Agreement) in accordance with the
terms and provisions of the Second Amendment; and
WHEREAS, Xxxxxx and Lenders desire to further amend the terms of the
Credit Documents in accordance with the terms contained herein.
NOW, THEREFORE, in consideration of the premises and for other good
and valuable consideration, the receipt and adequacy of which are mutually
acknowledged, the parties hereby agree as follows:
1. Defined Terms. All defined terms used and not otherwise
defined herein shall have the meaning ascribed to such terms in the Credit
Agreement.
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2. Extension of Closing Date. Section 3 of the Second Amendment
is hereby deleted in its entirety. The Music Asset Sales shall be consummated,
and the Actual Net Proceeds (as defined in Section 3 of this Third Amendment)
shall be applied as set forth in this Third Amendment, on or prior to January
31, 1997 (the "Closing Date").
3. Actual Net Proceeds. Xxxxxx hereby represents and warrants to
Lenders that the actual net proceeds to Xxxxxx resulting from the Music Asset
Sales shall be approximately $90,000,000.00 (the "Actual Net Proceeds").
4. Section 2.06 of the Credit Agreement. Lenders hereby agree
that the provisions of Section 2.06 of the Credit Agreement shall not apply to
Xxxxxx'x application of the Actual Net Proceeds. Lenders and Xxxxxx agree that
Lenders' waiver of Section 2.06 of the Credit Agreement as set forth in this
Section 4 shall apply only to the application of the Actual Net Proceeds
resulting from the Music Asset Sales and shall not extend to any future Asset
Sales that may be contemplated by Xxxxxx, without the express written consent
of Lenders.
5. Section 11.03 of the Credit Agreement. Lenders hereby agree
that the provisions of Section 11.03 of the Credit Agreement shall not apply to
the Music Asset Sales. Lenders and Xxxxxx agree that Lender's waiver of Section
11.03 of the Credit Agreement as set forth in this Section 5 shall apply only
to the Music Asset Sales and shall not extend to any future Asset Sales that
may be contemplated by Xxxxxx, without the express written consent of Lenders.
6. Prudential Debt. Notwithstanding any provision to the contrary
set forth in the Credit Agreement, Lenders hereby agree that approximately
$35,000,000.00 of the Actual Net Proceeds (the "Prudential Payment") shall be
utilized by Xxxxxx to pay in full the indebtedness evidenced by the
$35,000,000.00 6.90% Series A Senior Notes executed by Xxxxxx to The Prudential
Insurance Company of America dated January 3, 1996 and due December 31, 2007
(collectively the "Prudential Notes"). Xxxxxx hereby represents and warrants
that no prepayment penalty is included in the Prudential Payment.
7. Balance of Actual Net Proceeds. Xxxxxx and Lenders hereby
agree that the balance of the Actual Net Proceeds remaining after payment in
full of the Prudential Notes shall be applied to repay all of the outstanding
indebtedness evidenced by the Revolving Credit Notes on the Closing Date (the
"Revolver Paydown"). Xxxxxx and Lenders further agree that the balance of the
Actual Net Proceeds remaining after payment in full of the Prudential Notes and
the Revolver Paydown, if any, shall be used by Xxxxxx for working capital needs
and for other general corporate purposes
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(which shall include acquisitions and capital expenditures of the Consolidated
Companies).
8. Revolving Loan Commitments. Lenders and Xxxxxx hereby agree
that the Revolving Loan Commitments are hereby permanently reduced to Seventy
Five Million and No/100 Dollars ($75,000,000.00), subject to any increase or
decrease from time to time as a result of any reduction thereof pursuant to
Section 2.04, Section 2.05, Section 2.06 or Section 2.07 of the Credit
Agreement, any assignment thereof pursuant to Section 14.06 of the Credit
Agreement, or any amendment thereof pursuant to Section 14.02 of the Credit
Agreement, and subject to further revision as Xxxxxx and Lenders may agree in
writing (the "Revolving Loan Commitments"). Notwithstanding the provisions of
Section 2.06 of the Credit Agreement, the application of the Revolver Paydown
described in Section 7 hereof shall not result in a permanent reduction to the
Revolving Loan Commitments. After the application of the Revolver Paydown, the
Revolving Loan Commitments shall be Seventy Five Million and No/100 Dollars
($75,000,000.00), subject to the increases and decreases as set forth in the
first sentence of this Section 8.
9. Future Borrowings under Revolving Loan Commitments. Lenders
and Xxxxxx hereby agree that any future reborrowings by Xxxxxx under the
Revolving Loan Commitments, as reduced by Section 8 hereof, for any use other
than for working capital and for other general corporate purposes (which shall
include acquisitions and capital expenditures of the Consolidated Companies)
shall not be permitted without the express written consent of Lenders.
10. Governing Law. This Third Amendment shall be governed by and
construed in accordance with the laws of the State of Tennessee.
11. Full Force and Effect. Except as specifically amended by this
Third Amendment, all other terms and provisions of the Credit Agreement shall
remain in full force and effect.
12. No Other Waiver. Except as expressly stated herein, no other
waiver of any term or provision of the Credit Agreement shall be inferred or
implied.
IN WITNESS WHEREOF, the parties have caused this Third Amendment to be
duly executed as of the date first above written.
XXXXXX XXXXXX, INC.
By: /s/ Xxx X. Xxxxxx
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Title: Executive Vice President
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ACCEPTED AND AGREED TO:
SUNTRUST BANK, NASHVILLE, N.A., as Agent
By: /s/ J. Xxxx Xxxxxx
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Title: Executive Vice President
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Acceptance Date: January 6, 1997
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SUNTRUST BANK, NASHVILLE, N.A.
By: /s/ J. Xxxx Xxxxxx
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Title: Executive Vice President
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Acceptance Date: January 6, 1997
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NATIONSBANK OF TEXAS, N.A.
By: /s/ Xxxxxx X. Xxxxxxxx
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Title: Vice President
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Acceptance Date: January 6, 1997
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CREDITANSTALT-BANKVEREIN
By: /s/ Xxxxxx X. Xxxxxxxx
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Title: Executive Vice President
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By: /s/ Xxxxxx X. Xxxxxxx
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Title: Vice President
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Acceptance Date: January 6, 1997
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NATIONAL CITY BANK, KENTUCKY
By: /s/ Xxxxx X. Xxxxxxxx
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Title: Vice President
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Acceptance Date: January 6, 1997
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FIRST AMERICAN NATIONAL BANK
By: /s/ Xxxxx X. Xxxx
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Title: Senior Vice President
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Acceptance Date: January 6, 1997
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The undersigned join in the execution of this Third Amendment in order
to acknowledge their consent to the terms and provisions of this Third
Amendment and to confirm that the execution of this Third Amendment by the
parties hereto in no way affects the undersigneds' respective obligations under
the Amended and Restated Guaranty Agreement executed as of December 13, 1995 by
Word, Incorporated, a corporation organized and existing under the laws of the
State of Delaware, PPC, Inc., a corporation organized and existing under the
laws of the State of North Carolina, Editorial Caribe, Inc., a corporation
organized and existing under the laws of the State of Florida, Morningstar
Radio Network, Inc., a corporation organized and existing under the laws of the
State of Texas, Xxxxxx Word Ltd., a corporation organized and existing under
the laws of the United Kingdom, Word Communications, Ltd., a corporation
organized and existing under the laws of British Columbia, Canada, Word Direct,
Inc., a corporation organized and existing under the laws of the State of
Texas, Word Direct Partners, L.P., a limited partnership organized and existing
under the laws of the State of Texas, The X.X. Xxxxxx Company, a corporation
organized and existing under the laws of the State of Delaware, 855673 Ontario
Limited, a corporation organized and existing under the laws of Ontario,
Canada, in favor of SunTrust Bank, Nashville, N.A., a national banking
association, in its capacity as agent for banks and other lending institutions
parties to the Credit Agreement and each assignee thereof becoming a "Lender"
as provided therein. Each person executing this Amendment on behalf of each of
the undersigned is duly authorized to so execute and deliver this Amendment on
behalf of each of the undersigned entities.
WORD, INCORPORATED
By: /s/ Xxx X. Xxxxxx
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Title: Executive Vice President
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PPC, INC.
By: /s/ Xxx X. Xxxxxx
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Title: Executive Vice President
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EDITORIAL CARIBE, INC.
By: /s/ Xxx X. Xxxxxx
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Title: Executive Vice President
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MORNINGSTAR RADIO NETWORK, INC.
By: /s/ Xxx X. Xxxxxx
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Title: Executive Vice President
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XXXXXX WORD LTD.
By: /s/ Xxx X. Xxxxxx
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Title: Executive Vice President
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WORD COMMUNICATIONS, LTD.
By: /s/ Xxx X. Xxxxxx
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Title: Executive Vice President
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WORD DIRECT, INC.
By: /s/ Xxx X. Xxxxxx
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Title: Executive Vice President
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WORD DIRECT PARTNERS, L.P.
By: /s/ Xxx X. Xxxxxx
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Title: Executive Vice President
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THE X. X. XXXXXX COMPANY
By: /s/ Xxx X. Xxxxxx
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Title: Executive Vice President
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855763 ONTARIO LIMITED
By: /s/ Xxx X. Xxxxxx
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Title: Executive Vice President
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EXHIBIT A
Music Asset Sales
1. Word Incorporated Music Assets
2. Unison Division Music Assets
3. Word Direct Partners, L.P. Music Assets
4. Xxxxxx Word Ltd. Music Assets
5. Word Communications, Ltd. Music Assets
6. Word Non-Music Trademarks (Registration #'s 1,130,259 and
1,953,046)
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