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Exhibit 10.6
EXECUTION
▇▇▇▇▇▇▇ ▇▇ ACQUISITION CORP.
▇▇▇▇▇▇▇ BROADCASTING OF EASTERN NORTH CAROLINA, INC.
▇▇▇▇▇▇▇ BROADCASTING OF EASTERN PENNSYLVANIA, INC.
▇▇▇▇▇▇▇ BROADCASTING OF ARKANSAS, INC.
W&B MEDIA, INC.
▇▇▇▇▇▇▇ BROADCASTING OF SOUTHWEST FLORIDA, INC.
▇▇▇▇▇▇▇ BROADCASTING OF COASTAL CAROLINA, INC.
▇▇▇▇▇▇▇-▇▇▇▇ ACQUISITION PARTNERSHIP
▇▇▇▇▇▇▇ RADIO, INC.
FIRST AMENDMENT TO CREDIT AGREEMENT
This FIRST AMENDMENT TO CREDIT AGREEMENT (this "AMENDMENT") is
dated as of August 11, 1999 and entered into by and among ▇▇▇▇▇▇▇ ▇▇ ACQUISITION
CORP., a Delaware corporation ("FM ACQUISITION CORP."), ▇▇▇▇▇▇▇ BROADCASTING OF
EASTERN NORTH CAROLINA, INC., a North Carolina corporation ("▇▇▇▇▇▇▇ OF NORTH
CAROLINA"), ▇▇▇▇▇▇▇ BROADCASTING OF EASTERN PENNSYLVANIA, INC., a Delaware
corporation ("▇▇▇▇▇▇▇ OF PENNSYLVANIA"), ▇▇▇▇▇▇▇ BROADCASTING OF ARKANSAS, INC.,
a Delaware corporation ("▇▇▇▇▇▇▇ OF ARKANSAS"), W&B MEDIA, INC., a North
Carolina corporation ("W&B"), ▇▇▇▇▇▇▇ BROADCASTING OF SOUTHWEST FLORIDA, INC., a
Delaware corporation ("▇▇▇▇▇▇▇ OF Florida"), ▇▇▇▇▇▇▇ BROADCASTING OF COASTAL
CAROLINA, INC., a Delaware corporation ("▇▇▇▇▇▇▇ OF COASTAL CAROLINA"),
▇▇▇▇▇▇▇-▇▇▇▇ ACQUISITION PARTNERSHIP, a Delaware general partnership
("▇▇▇▇▇▇▇-▇▇▇▇"), and ▇▇▇▇▇▇▇ RADIO, INC., a Delaware corporation ("▇▇▇▇▇▇▇
RADIO"); each of FM Acquisition Corp., ▇▇▇▇▇▇▇ of North Carolina, ▇▇▇▇▇▇▇ of
Pennsylvania, ▇▇▇▇▇▇▇ of Arkansas, W&B, ▇▇▇▇▇▇▇ of Florida, ▇▇▇▇▇▇▇ of Coastal
Carolina, ▇▇▇▇▇▇▇-▇▇▇▇ and ▇▇▇▇▇▇▇ Radio are a "BORROWER" and collectively, the
"BORROWERS"), on a joint and several basis, the financial institutions listed on
the signature pages hereof ("LENDERS"), and BANK OF MONTREAL, CHICAGO BRANCH
("BANK OF MONTREAL"), as agent for Lenders (in such capacity, "AGENT"), and is
made with reference to that certain Credit Agreement dated as of March 30, 1998
(as amended, supplemented or otherwise modified to the date hereof, the "CREDIT
AGREEMENT"), by and among Borrowers, certain Lenders and Agent. Capitalized
terms used herein without definition shall have the same meanings herein as set
forth in the Credit Agreement or in Section 1.1 hereof.
RECITALS
WHEREAS, Borrowers desire to amend the Credit Agreement to (i)
increase the aggregate Commitments from $140,000,000 to $150,000,000, (ii)
change the amounts of the scheduled reductions of the Commitments, (iii) extend
the final maturity of the Commitments to December 31, 2006, (iv) amend certain
financial covenants, (v) permit certain investments in non-broadcast radio
businesses, (vi) permit the transfer of certain tower sites to an Affiliate of
Borrowers, (vii) permit the transfer of certain equity interests in Borrowers to
a trust for estate
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planning purposes, and (viii) make certain other amendments thereto, in each
case on the terms set forth herein;
NOW, THEREFORE, in consideration of the premises and the
agreements, provisions and covenants herein contained, the parties hereto agree
as follows:
SECTION 1. AMENDMENTS TO THE CREDIT AGREEMENT
1.1 AMENDMENTS TO SECTION 1: DEFINITIONS
A. Subsection 1.1 of the Credit Agreement is hereby amended by adding
thereto the following definitions, which shall be inserted in proper
alphabetical order:
"ACKNOWLEDGMENT AND CONSENT" means the Acknowledgment and
Consent executed and delivered in connection with the First Amendment
by Credit Parties and their Affiliates party to the Affiliate
Subordination Agreement, substantially in the form of Exhibit XVIII
annexed hereto.
"BFT" means ▇▇▇▇▇▇▇ Family Towers, a Delaware corporation and
an Affiliate of Borrowers.
"FIRST AMENDMENT" means that certain First Amendment to Credit
Agreement dated as of August 11, 1999 by and among Borrowers and the
Lenders party thereto.
"FIRST AMENDMENT EFFECTIVE DATE" has the meaning assigned to
that term in the First Amendment.
"TRANSFERRED TOWER SITES" means those broadcast towers (and
the real property on which such towers are located) described on
Schedule 7.7(vii) annexed hereto.
"YEAR 2000 PROBLEMS" means limitations in the capacity or
readiness to handle date information for the Year 1999 or years
beginning January 1, 2000 of any of the hardware, firmware or software
systems owned or leased or otherwise controlled by any of the Credit
Parties ("SYSTEMS") associated with information processing and
delivery, operations or services (e.g., security and alarms, elevators,
communications, and HVAC) operated by or under the control of the
Credit Parties.
B. Subsection 1.1 of the Credit Agreement is hereby further amended by
deleting the definitions of "Agreement", "Combined Operating Cash Flow", "Loan
Documents", "Revolving Notes" and "Stated Maturity Date" therefrom in their
entirety and substituting therefor the following:
"AGREEMENT" shall mean this Credit Agreement dated as of March
30, 1998, as it may be amended, supplemented or otherwise modified from
time to time.
"COMBINED OPERATING CASH FLOW" shall mean for Borrowers and
the Subsidiaries on a combined basis and determined in accordance with
GAAP, for the four (4) Fiscal Quarter period ending on the date of
determination, (a) net income or loss for
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such period, excluding (i) extraordinary gains and losses, if any, for
such period and (ii) the write-up or write-down of assets for such
period, plus (b) to the extent deducted in determining net income for
such period, the sum of (i) depreciation expense for such period, (ii)
amortization expense for such period, (iii) Combined Cash Interest
Expense during such period, (iv) taxes expensed during such period, (v)
other deferred or non-cash expenses relating to trade for such period,
(vi) LMA Payments for such period, (vii) fees and expenses paid by the
Borrowers hereunder or under the other Loan Documents for the
effectiveness of such agreements and the other Closing Date
transactions, (viii) all legal fees and expenses incurred by Borrowers
with respect to any acquisition or disposition of a Station permitted
hereunder as a "like-kind" exchange under Section 1031 of the Internal
Revenue Code, (ix) legal fees incurred by Borrowers with respect to any
acquisition of a Station permitted hereunder, to the extent such legal
fees do not exceed $50,000 for any such acquisition or series of
related acquisitions, and (x) up to $300,000 of severance costs
associated with the termination of employees in connection with the
change in format of WWDB-FM (Philadelphia) from a time-brokered station
to a news/talk format, minus (c) to the extent included in determining
net income for such period, non-cash revenue relating to trade. For
purposes of calculating Combined Operating Cash Flow with respect to
assets not owned by the Borrowers for the full preceding 12-month
period, Combined Operating Cash Flow shall be calculated as if (A) any
operations acquired by any Borrower at any time during the preceding
12-month period had been in fact owned by such Borrower for the full
preceding 12-month period, and (B) any operations disposed of by any
Borrower at any time during the preceding 12-month period had not been
owned by the Borrowers for any of the full preceding 12-month period.
"LOAN DOCUMENTS" means this (i) Agreement, (ii) the Notes,
(iii) the Letters of Credit (and any applications for, or reimbursement
agreements or other documents or certificates executed by any Borrower
in favor of Issuing Lender relating to, the Letters of Credit), (iv)
the Subsidiary Guaranty, (v) the Security Documents, (vi) the
Acknowledgment and Consent and (vii) any Interest Rate Agreements
entered into by Borrowers with any Person that is or was a Lender or an
Affiliate of a Lender at the time of entry into such agreement.
"REVOLVING NOTES" means (i) the promissory notes of Borrowers
referred to in subsection 2.1D and issued on the First Amendment
Effective Date, and (ii) any promissory notes issued thereafter by
Borrowers pursuant to the last sentence of subsection 10.1B(i) in
connection with assignments of the Revolving Loan Commitments and
Revolving Loans of any Lenders, in each case substantially in the form
of Exhibit IV annexed hereto, as they may be amended, supplemented or
otherwise modified from time to time.
"STATED MATURITY DATE" means December 31, 2006.
1.2 AMENDMENTS TO SECTION 2: AMOUNTS AND TERMS OF COMMITMENTS AND LOANS
A. Subsection 2.1A of the Credit Agreement is hereby amended by adding
immediately prior to the "." at the end of the second sentence thereof the
following:
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"; and provided, further that on the First Amendment Effective Date,
(A) each Lender on such date shall have the Revolving Loan Commitment
set forth opposite its name on Schedule 2.1A annexed hereto and (B) the
aggregate amount of the Revolving Loan Commitments as at the First
Amendment Effective Date shall increase to $150,000,000, in each case
without any further action on the part of any Borrower or Lender, and
each such Lender agrees to continue its outstanding Loans on such date
and extend the maturity date thereof so that, immediately after giving
effect to such continuation and the reallocation described in
subsection 2.1F, each Lender will hold Loans in the amount of its Pro
Rata Share of the aggregate amount of the Commitments as set forth on
Schedule 2.1A, maturing on December 31, 2006."
B. Subsection 2.1D of the Credit Agreement is hereby amended by
deleting the first sentence thereof in its entirety and substituting therefor
the following:
"On the First Amendment Effective Date, Borrowers executed and
delivered to each Lender (or to Agent for that Lender) a Revolving Note
substantially in the form of Exhibit IV annexed hereto to evidence that
Lender's Revolving Loan, in the principal amount of that Lender's
Revolving Loan Commitment and with other appropriate insertions."
C. Subsection 2.1 of the Credit Agreement is hereby further amended by
adding at the end thereof a new subsection 2.1E as follows:
"E. REALLOCATION OF PRO RATA SHARES. Notwithstanding anything
to the contrary herein, but subject to the following provisions of this
paragraph, as of the First Amendment Effective Date all outstanding
Loans shall be continued as Loans (in a principal amount equal to the
aggregate principal amount of all outstanding Loans) hereunder, and
shall be subject to the terms and provisions of this Agreement. On the
First Amendment Effective Date, each Lender that will have a greater
Pro Rata Share (as reflected in Schedule 2.1A annexed hereto) with
respect to Loans upon the First Amendment Effective Date than its Pro
Rata Share immediately prior to the First Amendment Effective Date
(each a "PURCHASING LENDER"), without executing an Assignment
Agreement, shall be deemed to have automatically purchased assignments,
pro rata from each Lender (in proportion to the amounts to be purchased
from such Lender by all Purchasing Lenders) that will have a smaller
Pro Rata Share with respect to Loans on the First Amendment Effective
Date than its Pro Rata Share immediately prior to the First Amendment
Effective Date (each a "SELLING LENDER"), in all such Selling Lenders'
rights and obligations under this Agreement and the other Loan
Documents with respect to the Loans (collectively, except as set forth
below, the "ASSIGNED RIGHTS AND OBLIGATIONS"), and each Selling Lender
shall be deemed to have automatically assigned and sold such Loans in
such amounts to such Purchasing Lenders, so that, after giving effect
to all such assignments, each Lender shall hold its respective Pro Rata
Share as set forth in Schedule 2.1A (as adjusted as required under the
definition of Pro Rata Share) of the Loans. Each such purchase
hereunder shall be at par for a purchase price equal to the principal
amount of the purchased Loans and without recourse, representation or
warranty, except that each Selling Lender shall be deemed to represent
and warrant to
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each Purchasing Lender that the Assigned Rights and Obligations of such
Selling Lender are not subject to any Liens created by that Selling
Lender.
"Each Purchasing Lender required to make a payment pursuant to
any such assignment shall make the net amount of its required payment
available to Agent, in same day funds, at the Funding and Payment
Office not later than 12:00 Noon (New York time) on the First Amendment
Effective Date. Agent shall distribute on the First Amendment Effective
Date the proceeds of such amounts to the Selling Lenders entitled to
receive payments, pro rata in proportion to the amount each Selling
Lender is entitled to receive, at the primary address set forth below
such Selling Lender's name on the signature pages hereof or at such
other address as such Selling Lender may request in writing to Agent.
The purchase of a Loan by a Lender as set forth in this subsection 2.1E
shall be deemed to be the making of a Loan to Borrowers on the date
such funds are transmitted to Agent; provided, however, that such
reallocations described in subsection 2.1E shall not result in breakage
fees."
D. Subsection 2.4A of the Credit Agreement is hereby amended by
deleting the table set forth therein in its entirety and substituting therefor
the following:
SCHEDULED REDUCTION
QUARTER OF REVOLVING
ENDING LOAN COMMITMENTS
------ ----------------
September 30, 2000 $ 3,750,000
December 31, 2000 $ 3,750,000
March 31, 2001 $ 3,750,000
June 30, 2001 $ 3,750,000
September 30, 2001 $ 3,750,000
December 31, 2001 $ 3,750,000
March 31, 2002 $ 3,750,000
June 30, 2002 $ 3,750,000
September 30, 2002 $ 3,750,000
December 31, 2002 $ 3,750,000
March 31, 2003 $ 4,687,500
June 30, 2003 $ 4,687,500
September 30, 2003 $ 4,687,500
December 31, 2003 $ 4,687,500
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March 31, 2004 $ 5,625,000
June 30, 2004 $ 5,625,000
September 30, 2004 $ 5,625,000
December 31, 2004 $ 5,625,000
March 31, 2005 $ 7,500,000
June 30, 2005 $ 7,500,000
September 30, 2005 $ 7,500,000
December 31, 2005 $ 7,500,000
March 31, 2006 $10,312,500
June 30, 2006 $10,312,500
September 30, 2006 $10,312,500
December 31, 2006 $10,312,500
E. Subsection 2.4B(iii)(a)(1) of the Credit Agreement is hereby amended
by adding the following proviso immediately after the first proviso to the first
sentence thereof:
"; provided, further that no such Net Cash Proceeds from a sale or
transfer of Transferred Tower Sites permitted under subsection 7.7(vii)
shall be so applied"
1.3 AMENDMENT TO SECTION 5. REPRESENTATIONS AND WARRANTIES
Section 5 of the Credit Agreement is hereby amended by adding at the
end thereof a new subsection 5.19 as follows:
"5.19 YEAR 2000 PROBLEMS.
The Credit Parties have (i) engaged in a process of assessment
of the existence of the Year 2000 Problems reasonably appropriate to
the scope and complexity of their respective Systems; (ii) adopted and
are implementing a plan of correction ("PLAN OF CORRECTION") which the
Credit Parties reasonably believe will result in a substantial
elimination of Year 2000 Problems before any processing failure of a
System or of Systems due to Year 2000 Problems which might have a
material adverse effect on the business, operations or financial
performance of the Credit Parties; (iii) adopted and are implementing
validation procedures reasonably calculated to test on an ongoing basis
the sufficiency of the Plan of Correction, its implementation, and the
correction of Year 2000 Problems in any System; and (iv) adopted and
are implementing policies and procedures requiring regular reports to,
and monitoring by, senior management of the Credit Parties concerning
the foregoing matters."
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1.4 AMENDMENT TO SECTION 6. AFFIRMATIVE COVENANTS
Section 6 of the Credit Agreement is hereby amended by adding at the
end thereof new subsections 6.13 and 6.14 as follows:
"6.13 YEAR 2000 PROBLEMS.
Borrowers shall perform all acts reasonably necessary to
ensure that each Credit Party becomes Year 2000 Compliant in a timely
manner and in any event by November 15, 1999. Such acts shall include,
without limitation, performing a comprehensive review and assessment of
all of each Credit Party's Systems and adopting a detailed plan, with
itemized budget, for the remediation, monitoring and testing of such
Systems. As used in this subsection 6.13, "YEAR 2000 COMPLIANT" shall
mean, in regard to any entity, that all software, hardware, firmware,
equipment, goods or systems owned, leased or otherwise controlled and
utilized by or material to the business operations or financial
condition of such entity will properly perform date sensitive functions
before, during and after the year 2000."
"6.14 COLLATERAL MATTERS RELATING TO FIRST AMENDMENT.
No later than 10 Business Days after the First Amendment
Effective Date, Borrowers shall have delivered to Agent (i) instruments
reasonably satisfactory to Agent amending the Mortgages, as
appropriate, to reflect the increase in Commitments and the extension
of the Stated Maturity Date pursuant to this Amendment and (ii) a
certificate of Borrowers dated the date which is 10 days after the
First Amendment Effective Date certifying that since the First
Amendment Effective Date Borrowers have not created, assumed, incurred
or suffered to exist any Lien on the Collateral subject to the
Mortgages or any part thereof except for Permitted Encumbrances.
Promptly after the First Amendment Effective Date, a title report
and/or other lien searches reasonably requested by Agent with respect
to the Collateral subject to the Mortgages, the results of which report
and searches shall be satisfactory to Agent.
1.5 AMENDMENTS TO SECTION 7: NEGATIVE COVENANTS
A. Subsection 7.3 of the Credit Agreement is hereby amended by (i)
deleting the "and" at the end of subdivision (viii) thereof, (ii) deleting the
"." at the end of subdivision (ix) thereof and substituting therefor ";", and
(iii) adding at the end thereof new subdivisions (x) and (xi) as follows:
"(x) So long as no Event of Default or Potential Event of
Default shall have occurred and be continuing, or would result
therefrom, Borrowers and their respective Subsidiaries may, on or after
the First Amendment Effective Date, make other Investments in
businesses or Persons not engaged in the radio broadcasting business;
provided that (a) any Cash consideration paid or advanced to make any
such Investment, together with all Cash consideration paid or advanced
to make all such Investments made pursuant to this clause (x), shall
not exceed $5,000,000 in the aggregate, and (b) the value of any
non-Cash consideration paid or advanced to make any such Investment,
together with the value of all non-Cash consideration paid or advanced
to make all such
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Investments described under this clause (x), shall not exceed
$20,000,000 in the aggregate (it being understood that the value of any
such non-Cash consideration shall be determined in good faith by
Borrowers at the time such consideration is paid or advanced to make
the applicable Investment); and
"(xi) Borrowers and their Subsidiaries may make Investments
consisting of the promissory note or notes received in connection with
the sale or transfer of the Transferred Tower Sites permitted under
subsection 7.7(vii)."
B. Subsection 7.6C of the Credit Agreement is hereby amended by
deleting the table set forth therein in its entirety and substituting therefor
the following:
MAXIMUM
COMBINED TOTAL
PERIODS DEBT RATIO
------- ----------
April 1, 1999 - September 30, 1999 6.00:1.00
October 1, 1999 - June 30, 2000 5.75:1.00
July 1, 2000 - December 31, 2001 5.50:1.00
January 1, 2002 - December 31, 2002 5.00:1.00
January 1, 2003 - December 31, 2003 4.50:1.00
January 1, 2004 - December 31, 2004 4.00:1.00
January 1, 2005 and thereafter 3.50:1.00
C. Subsection 7.7 of the Credit Agreement is hereby amended by (i)
deleting the "and" at the end of clause (b)(3) of subdivision (iv) thereof, (ii)
deleting the "." at the end of subdivision (v) thereof and substituting therefor
";", and (iii) adding at the end thereof new subdivisions (vi), (vii) and (viii)
as follows:
"(vi) At any time on or after the First Amendment Effective
Date, Borrowers and their respective Subsidiaries may acquire by
purchase or otherwise all or substantially all the business, property
or fixed assets of, or stock or other evidence of beneficial ownership
of, any Person or any division or line of business of any Person to the
extent such acquisition constitutes an Investment otherwise permitted
under subsection 7.3(x);
"(vii) At any time after the First Amendment Effective Date,
Borrowers and their respective Subsidiaries may sell or otherwise
transfer the Transferred Tower Sites to BFT; provided that (a) the
consideration for such sale or transfer shall consist of a promissory
note or notes in an aggregate principal amount of not less than
$1,300,000, which shall have a final maturity of not more than 10 years
from the date of issuance
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thereof, shall provide for monthly cash interest at a per annum rate of
not less than 6.0%, and shall provide for monthly repayments of
principal such that the amount of each monthly installment of principal
and interest through and including the last such installment shall be
equal to each other such installment, (b) those Borrowers which are
transferors of such Transferred Tower Sites (collectively, the
"TRANSFEROR BORROWERS") shall, concurrently with such sale or transfer,
enter into lease contracts with BFT for such Transferred Tower Sites,
which contracts shall be in form and substance reasonably satisfactory
to Agent, and (c) in any event, in any month following such transfer
the aggregate of all lease payments for such Transferred Tower Sites
made in such month by Transferor Borrowers shall not exceed the amount
of the installment of principal and interest paid during such month in
cash to Borrowers pursuant to the promissory note or notes referred to
in the preceding clause (a); and
"(viii) At any time after the First Amendment Effective Date,
notwithstanding anything to the contrary in any Loan Document, equity
interests in any one or more of Borrowers may be transferred to a trust
or trusts so long as (a) each transferee of such equity interests shall
pledge, concurrently with such transfer, such equity interests as
collateral to secure the Obligations on terms identical in all material
respects as (and pursuant to documentation identical in all material
respects to the Collateral Documents pursuant to which) such equity
interests are pledged to Agent for the benefit of Lenders immediately
prior to such transfer, and all documentation relating to such transfer
and such pledge shall be delivered to, and shall be in form and
substance reasonably satisfactory to, Agent; (b) Borrowers and each
such transferee shall deliver to Agent such organizational documents,
good standing certificates, incumbency certificates, and other evidence
of due authorization, execution, and delivery of such documents by each
such transferee as Agent may reasonably require, and such evidence
shall be in form and substance reasonably satisfactory to Agent
(provided, however, that any provisions of the trust documents relating
solely to assets not constituting Collateral may be redacted prior to
delivery if the relevant parties certify to the foregoing); and (c)
Agent shall have received an opinion of counsel to each such transferee
reasonably satisfactory to Agent and its counsel, in form and substance
reasonably satisfactory to Agent and its counsel, setting forth (with
respect to the relevant transferees) substantially the matters set
forth as to the Credit Parties in the opinions of counsel delivered as
of the Closing Date to the extent relevant to the execution of the
documents referred to in the preceding clauses (a) and (b) and the
pledge of such equity interests, and such other opinions relating to
such transfer and pledge as Agent may reasonably require."
D. Subsection 7.11 of the Credit Agreement is hereby amended by
deleting the first proviso thereto and substituting therefor the following:
"; provided that the foregoing restrictions shall not apply to (i) any
transactions between or among the Borrowers and any of their respective
wholly-owned Subsidiaries or between or among any such Subsidiary and
any of its wholly-owned Subsidiaries, (ii) reasonable and customary
fees paid to members of the Board of Directors of the Credit Parties
and their respective Subsidiaries, (iii) the Management Agreements,
(iv) the transfer of the Transferred Tower Sites to BFT, together with
the issuance of the promissory notes and the entry into the lease
contracts (and the performance thereof)
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described in subsection 7.7(vii), so long as such transfer, promissory
notes and lease contracts are permitted under and meet the requirements
of such subsection, and (v) the payment by Borrowers and their
Subsidiaries of insurance premiums and tax liabilities attributable to
the Transferred Tower Sites, so long as the aggregate amount of such
premiums and tax liabilities shall not exceed $200,000 in any 12-month
period"
E. Subsection 7.13 of the Credit Agreement is hereby amended by adding
at the end thereof a new sentence as follows:
"Anything to the contrary in this subsection 7.13 notwithstanding,
Borrowers and their Subsidiaries may engage, pursuant to Investments
permitted under subsection 7.3(x), in the business conducted by the
businesses or Persons acquired through such Investments."
1.6 ADDITIONAL SCHEDULES AND EXHIBIT; SUBSTITUTION OF EXHIBIT
A. The Credit Agreement is hereby amended by adding a new Schedule 2.1A
and a new Schedule 7.7(vii) thereto in the forms of Annex A and Annex B,
respectively, to this Amendment.
B. The Credit Agreement is hereby further amended by adding a new
Exhibit XVIII thereto in the form of Annex C to this Amendment.
C. Exhibit IV to the Credit Agreement is hereby amended by deleting
said Exhibit IV in its entirety and substituting in place thereof a new Exhibit
IV in the form of Annex D to this Amendment.
SECTION 2. CONDITIONS TO EFFECTIVENESS
Section 1 of this Amendment shall become effective upon the
prior or concurrent satisfaction of all of the following conditions precedent
(the date of satisfaction of such conditions being referred to herein as the
"FIRST AMENDMENT EFFECTIVE DATE"):
A. On or before the First Amendment Effective Date, each Credit Party
shall have delivered to Lenders (or to Agent for Lenders with sufficient
originally executed copies, where appropriate, for each Lender and its counsel)
the following, each, unless otherwise noted, dated the First Amendment Effective
Date:
(i) Certified copies of the Certificate or Articles of
Incorporation or Certificate of Limited Partnership of such Credit
Party together with a good standing certificate from the Secretary of
State of its state of organization and, to the extent generally
available, a certificate or other evidence of good standing as to
payment of any applicable franchise or similar taxes from the
appropriate taxing authority of such state, each dated a recent date
prior to the First Amendment Effective Date;
(ii) Copies of its Bylaws or Partnership Agreement, as
applicable, certified as of the First Amendment Effective Date by its
corporate secretary or an assistant secretary (or the secretary or
assistant secretary of its general partner), or in lieu thereof a
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certificate of such secretary or assistant secretary to the effect that
there have been no amendments to such Bylaws or Partnership Agreement
after the Closing Date;
(iii) Resolutions of its Board of Directors or other
authorizing body or Person approving and authorizing the execution,
delivery and performance of this Amendment, the New Notes (as defined
below) and each Loan Document to which it is to be a party in
connection with this Amendment, certified as of the First Amendment
Effective Date by its corporate secretary or an assistant secretary (or
the secretary or assistant secretary of its general partner) as being
in full force and effect without modification or amendment;
(iv) Signature and incumbency certificates of the officers (or
the officers of the general partner) of such Person executing this
Amendment, the New Notes and each Loan Document to which it is to be a
party in connection with this Amendment; and
(v) Executed originals of (A) in the case of Borrowers, this
Amendment, Revolving Notes in substantially the form of Annex D hereto
drawn to the order of each Lender and with appropriate insertions
(collectively, the "NEW NOTES") and the Acknowledgment and Consent and
(B) in the case of each other Credit Party, the Acknowledgment and
Consent.
B. So long as each Lender shall have executed this Amendment, Agent
shall have received from Borrowers (a) for distribution to each Lender that has
executed and delivered this Amendment on or prior to 5:00 p.m. (New York City
time) on August 11, 1999, an amendment fee in an amount equal to .125% of the
Revolving Loan Exposure of such Lender as of such time, and (b) for distribution
to each Lender whose Revolving Loan Commitment will increase upon the
effectiveness of the First Amendment, a fee in an amount equal to .25% of such
increase.
C. Borrowers shall have delivered to Agent for Lenders (with sufficient
originally executed copies for each Lender and its counsel) originally executed
copies of one or more favorable written opinions of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, special
counsel to the Credit Parties, dated the First Amendment Effective Date and in
form and substance reasonably satisfactory to Agent and its counsel, regarding
the matters set forth in paragraphs A, B and E of Section 3 of this Amendment
and as to such other matters as Agent acting on behalf of Lenders may reasonably
request.
D. Borrowers shall have delivered to Agent a certificate of Borrowers
dated the First Amendment Effective Date certifying that since the Closing Date
Borrowers have not created, assumed, incurred or suffered to exist any Lien on
the Collateral subject to the Mortgages or any part thereof except for Permitted
Encumbrances.
11
12
SECTION 3. BORROWERS' REPRESENTATIONS AND WARRANTIES
In order to induce Lenders to enter into this Amendment and to
amend the Credit Agreement in the manner provided herein, Borrowers represent
and warrant to each Lender that the following statements are true, correct and
complete:
A. POWER AND AUTHORITY. Each Credit Party is a corporation, limited
liability company, partnership or limited partnership validly existing and in
good standing under the laws of its state of organization. Each Credit Party has
all requisite corporate, partnership or limited partnership power and authority
to enter into this Amendment, the New Notes and the Acknowledgment and Consent
(in each case to the extent it is a party thereto) and to carry out the
transactions contemplated by, and perform its obligations under, the Credit
Agreement as amended by this Amendment (as so amended, the "AMENDED AGREEMENT")
and the New Notes (in each case to the extent it is a party thereto).
B. AUTHORIZATION OF AGREEMENT. The execution and delivery of this
Amendment, the New Notes and the Acknowledgment and Consent and the performance
of the Amended Agreement and the New Notes have been duly authorized by all
necessary corporate, partnership or limited partnership action on the part of
each Credit Party.
C. NO CONFLICT. The execution and delivery by each Credit Party of this
Amendment, the New Notes and the Acknowledgment and Consent (in each case to the
extent it is a party thereto) and the performance by Borrowers of the Amended
Agreement and the New Notes do not and will not (i) violate any provision of any
law or any governmental rule or regulation applicable to any Credit Party, the
Certificate or Articles of Incorporation, Certificate of Limited Partnership,
Partnership Agreement or Bylaws of any Credit Party or any order, judgment or
decree of any court or other agency of government binding on any Credit Party,
(ii) conflict with, result in a breach of or constitute (with due notice or
lapse of time or both) a default under any Contractual Obligation of any Credit
Party, (iii) result in or require the creation or imposition of any Lien upon
any of the properties or assets of any Credit Party (other than any Liens
created under any of the Loan Documents in favor of Agent on behalf and for the
ratable benefit of Lenders), or (iv) require any approval of stockholders or any
approval or consent of any Person under any Contractual Obligation of any Credit
Party.
D. GOVERNMENTAL CONSENTS. The execution and delivery by each Credit
Party of this Amendment, the New Notes and the Acknowledgment and Consent (in
each case to the extent it is a party thereto) and the performance by Borrowers
of the Amended Agreement and the New Notes do not and will not require any
registration with, consent or approval of, or notice to, or other action to,
with or by, any federal, state or other governmental authority or regulatory
body including, without limitation, the FCC, except for filings required in
connection with the perfection of the security interests or the exercise of the
rights granted pursuant to the Security Documents and filings required with the
FCC in connection with the Acquisitions contemplated by the Permitted
Acquisition Documents and the filing of this Amendment and related documents
with the FCC.
E. BINDING OBLIGATION. This Amendment, the Amended Agreement, the New
Notes and the Acknowledgment and Consent have been duly executed and delivered
by each Credit
12
13
Party which is a party thereto and are the legally valid and binding obligations
of each such Credit Party, enforceable against each such Credit Party in
accordance with their respective terms, except as may be limited by bankruptcy,
insolvency, reorganization, moratorium or similar laws relating to or limiting
creditors' rights generally or by equitable principles relating to
enforceability.
F. INCORPORATION OF REPRESENTATIONS AND WARRANTIES FROM CREDIT
AGREEMENT. The representations and warranties contained in Section 5 of the
Credit Agreement are and will be true, correct and complete in all material
respects on and as of the First Amendment Effective Date to the same extent as
though made on and as of that date, except to the extent such representations
and warranties specifically relate to an earlier date, in which case they were
true, correct and complete in all material respects on and as of such earlier
date.
G. ABSENCE OF DEFAULT. No event has occurred and is continuing or will
result from the consummation of the transactions contemplated by this Amendment
that would constitute an Event of Default or a Potential Event of Default.
SECTION 4. MISCELLANEOUS
A. REFERENCE TO AND EFFECT ON THE CREDIT AGREEMENT AND THE OTHER LOAN
DOCUMENTS.
(i) On and after the First Amendment Effective Date, each
reference in the Credit Agreement to "this Agreement", "hereunder",
"hereof'", "herein" or words of like import referring to the Credit
Agreement, and each reference in the other applicable Loan Documents to
the "Credit Agreement", "thereunder", "thereof" or words of like import
referring to the Credit Agreement shall mean and be a reference to the
Amended Agreement.
(ii) Except as specifically amended by this Amendment, the
Credit Agreement and the other Loan Documents shall remain in full
force and effect and are hereby ratified and confirmed.
(iii) The execution, delivery and performance of this
Amendment shall not, except as expressly provided herein or therein,
constitute a waiver of any provision of, or operate as a waiver of any
right, power or remedy of any Agent or any Lender under, the Credit
Agreement or any of the other Loan Documents.
B. FEES AND EXPENSES. Borrowers acknowledge that all reasonable costs,
fees and expenses incurred by Agent and its counsel with respect to this
Amendment and the documents and transactions contemplated hereby shall be for
the account of Borrowers, jointly and severally.
C. REALLOCATION OF LOANS. On the Business Day immediately prior to the
First Amendment Effective Date, Agent shall calculate the appropriate
prospective adjustments to the Register to reflect any reallocation of Loans in
accordance with the applicable Pro Rata Shares of the relevant Lenders after
giving effect to the increase in Commitments on such date and shall (a) notify
each such Lender and Borrowers of the amounts of such reallocation and (b)
notify
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14
each such Lender of the amounts, representing the principal amount of such
outstanding Loans on the First Amendment Effective Date which are required to be
made by such Lender or which shall be repaid to such Lender, which such Lender
will either advance or receive, respectively, as a result of the reallocation
and the assignments described in the amendment to subsection 2.1E contained in
Section 1.2C of this Amendment.
D. HEADINGS. Section and subsection headings in this Amendment are
included herein for convenience of reference only and shall not constitute a
part of this Amendment for any other purpose or be given any substantive effect.
E. APPLICABLE LAW. THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE
PARTIES HERETO AND ALL OTHER ASPECTS HEREOF SHALL BE DEEMED TO BE MADE UNDER,
SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH,
THE LAWS OF THE STATE OF NEW YORK (INCLUDING SECTION 5-1401 OF THE GENERAL
OBLIGATIONS LAW OF THE STATE OF NEW YORK), WITHOUT REGARD TO CONFLICTS OF LAWS
PRINCIPLES.
F. COUNTERPARTS. This 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. This Amendment (other than Section 1 hereof) shall become
effective upon the execution of a counterpart hereof by each Lender and Borrower
and receipt by Borrowers and Agent of written or telephonic notification of such
execution and authorization of delivery thereof.
[Remainder of page intentionally left blank]
14
15
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be duly executed and delivered by their respective officers
thereunto duly authorized as of the date first written above.
BORROWERS: ▇▇▇▇▇▇▇ ▇▇ ACQUISITION CORP.
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Secretary
▇▇▇▇▇▇▇ BROADCASTING OF EASTERN NORTH
CAROLINA, INC.
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Asst. Secretary/▇▇
▇▇▇▇▇▇▇ BROADCASTING OF EASTERN
PENNSYLVANIA, INC.
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Secretary
▇▇▇▇▇▇▇ BROADCASTING OF ARKANSAS, INC.
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Secretary
S-1
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W&B MEDIA, INC.
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President/Secretary/Treasurer
▇▇▇▇▇▇▇ BROADCASTING OF SOUTHWEST
FLORIDA, INC.
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Secretary
▇▇▇▇▇▇▇ BROADCASTING OF COASTAL
CAROLINA, INC.
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Secretary/Treasurer
▇▇▇▇▇▇▇-▇▇▇▇ ACQUISITION PARTNERSHIP
By: ▇▇▇▇▇▇▇ ▇▇ ACQUISITION CORP.,
its general partner
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Secretary
S-2
17
▇▇▇▇▇▇▇ RADIO, INC.
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Secretary
S-3
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LENDERS: BANK OF MONTREAL, CHICAGO BRANCH,
individually and as Agent
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Director
FLEET NATIONAL BANK
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Vice President
KEY CORPORATE CAPITAL INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
BANK OF AMERICA, N.A.
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇
Title: Senior Vice President
PARIBAS (formerly known as Banque Paribas)
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Director
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Managing Director
S-4
▇▇
▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
UNION BANK OF CALIFORNIA
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Assistant Vice President
S-5
20
ANNEX A
SCHEDULE 2.1A
LENDERS' COMMITMENTS AND PRO RATA SHARES
LENDER COMMITMENT PRO RATA SHARE
------ ---------- --------------
Bank of Montreal, Chicago Branch $30,000,000.00 20.0000%
Union Bank of California $24,500,000.00 16.3333%
Fleet National Bank $24,500,000.00 16.3333%
Key Corporate Capital Inc. $21,000,000.00 14.0000%
The Bank of New York $20,000,000.00 13.3333%
Bank of America, N.A. $16,000,000.00 10.6667%
Paribas $14,000,000.00 9.3333%
Total $150,000,000 100.00%
A-1
21
ANNEX B
SCHEDULE 7.7(VII)
TOWER SITES
WIKS-FM Own tower, lease land
WIKS-FM 100 ft. tower that provides link to main tower
WMGV-FM Own tower and land
WTEL-AM Own tower and land
WQAM-AM Back up tower in Biscayne Bay. Own tower, lease land
WZFX-FM Own tower, lease land
WRXK-FM 500 ft. tower that provides link to main tower which is leased
WKML-FM Own tower and land
WWDB-AM Own tower and land
WTMR-AM Own tower and land
WFLB-FM Own tower and land - backup site for WFLB
WAZZ-AM Own tower and land
WNCT-AM Own tower, lease land
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ANNEX C
EXHIBIT XVIII
[FORM OF ACKNOWLEDGMENT AND CONSENT]
ACKNOWLEDGMENT AND CONSENT
This ACKNOWLEDGMENT AND CONSENT (this "ACKNOWLEDGMENT AND
CONSENT") is dated as of August ___, 1999 and entered into by the undersigned,
and is made with reference to that certain Credit Agreement dated as of March
30, 1998, as amended by that certain First Amendment to Credit Agreement (the
"FIRST AMENDMENT") dated as of the date hereof (such agreement as amended, and
as it may be further amended, supplemented or otherwise modified from time to
time, the "CREDIT AGREEMENT"), by and among ▇▇▇▇▇▇▇ ▇▇ Acquisition Corp., a
Delaware corporation ("FM ACQUISITION CORP."), ▇▇▇▇▇▇▇ Broadcasting of Eastern
North Carolina, Inc., a North Carolina corporation ("▇▇▇▇▇▇▇ OF NORTH
CAROLINA"), ▇▇▇▇▇▇▇ Broadcasting Of Eastern Pennsylvania, Inc., a Delaware
corporation ("▇▇▇▇▇▇▇ OF PENNSYLVANIA"), ▇▇▇▇▇▇▇ Broadcasting Of Arkansas, Inc.,
a Delaware corporation ("▇▇▇▇▇▇▇ OF ARKANSAS"), W&B Media, Inc., a North
Carolina corporation ("W&B"), ▇▇▇▇▇▇▇ Broadcasting Of Southwest Florida, Inc., a
Delaware corporation ("▇▇▇▇▇▇▇ OF FLORIDA"), ▇▇▇▇▇▇▇ Broadcasting Of Coastal
Carolina, Inc., a Delaware corporation ("▇▇▇▇▇▇▇ OF COASTAL CAROLINA"),
▇▇▇▇▇▇▇-▇▇▇▇ Acquisition Partnership, a Delaware general partnership
("▇▇▇▇▇▇▇-▇▇▇▇"), and ▇▇▇▇▇▇▇ Radio, Inc., a Delaware corporation ("▇▇▇▇▇▇▇
RADIO"; each of FM Acquisition Corp., ▇▇▇▇▇▇▇ of North Carolina, ▇▇▇▇▇▇▇ of
Pennsylvania, ▇▇▇▇▇▇▇ of Arkansas, W&B, ▇▇▇▇▇▇▇ of Florida, ▇▇▇▇▇▇▇ of Coastal
Carolina, ▇▇▇▇▇▇▇-▇▇▇▇ and ▇▇▇▇▇▇▇ Radio is a "BORROWER" and collectively, the
"BORROWERS"), the financial institutions from time to time party thereto as
Lenders ("LENDERS"), and Bank of Montreal, Chicago Branch, as Agent. Capitalized
terms used herein without definition shall have the same meanings herein as set
forth in the Credit Agreement.
Each Borrower is a party to the Pledge and Security Agreement,
as amended through the date hereof, pursuant to which such Borrower has secured
the Obligations of the Borrowers by granting to Agent, for the benefit of Agent
and Lenders, (i) a first priority lien on substantially all of its property and
(ii) a first priority lien on all the capital stock or other equity interests of
its direct Subsidiaries. Certain of the Borrowers are parties to the Mortgages,
pursuant to which each such Borrower has granted to Agent, for the benefit of
Agent and Lenders, a first priority lien on the Initial Mortgaged Properties and
the Subsequent Mortgaged Properties to secure the Obligations of the Borrowers.
Each of the Persons indicated as Subsidiary Guarantors on the signatures pages
hereof (each, a "SUBSIDIARY GUARANTOR") is a party to the Subsidiary Guaranty
and the Pledge and Security Agreement, in each case as amended through the date
hereof, pursuant to which such Subsidiary Guarantor has granted to Agent, for
the benefit of Agent and Lenders, (i) a first priority lien on substantially all
of its property and (ii) a first priority lien on all the capital stock or other
equity interests of its direct Subsidiaries to secure the obligations of such
Subsidiary Guarantor under the Subsidiary Guaranty. Certain of the Subsidiary
Guarantors are parties to the Mortgages, pursuant to which each such Subsidiary
Guarantor has granted to Agent, for the benefit of Agent and Lenders, a
C-1
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first priority lien on the Initial Mortgaged Properties and the Subsequent
Mortgaged Properties to secure the obligations of such Subsidiary Guarantor
under the Subsidiary Guaranty. Each of the Borrowers and the Persons indicated
as Subordinated Creditors on the signature pages hereof (each, a "SUBORDINATED
CREDITOR") is a party to the Affiliate Subordination Agreement, as amended
through the date hereof, pursuant to which such Subordinated Creditor has
subordinated in favor of Agent the "Subordinated Debt" (as defined in the
Affiliate Subordination Agreement) to the "Senior Indebtedness" (as defined in
the Affiliate Subordination Agreement). FM Acquisition Corp. and ▇▇▇▇ Miami
Holdings, Inc. ("▇▇▇▇" or "PARTNER PLEDGOR") are parties to the ▇▇▇▇▇▇▇-▇▇▇▇
Pledge Agreement pursuant to which FM Acquisition Corp. and ▇▇▇▇ have secured
the Obligations of the Borrowers by granting to Agent, for the benefit of Agent
and Lenders, a first priority lien on all the partnership interests in
▇▇▇▇▇▇▇-▇▇▇▇ to secure the "Secured Obligations" (as defined in the ▇▇▇▇▇▇▇-▇▇▇▇
Pledge Agreement). The Borrowers, the Subsidiary Guarantors and ▇▇▇▇ are
collectively referred to herein as the "CREDIT SUPPORT PARTIES", and the Pledge
and Security Agreement, each Mortgage and the ▇▇▇▇▇▇▇-▇▇▇▇ Pledge Agreement are
collectively referred to herein as the "CREDIT SUPPORT DOCUMENTS".
Each Credit Support Party and each Subordinated Creditor
hereby acknowledges that it has reviewed the terms and provisions of the Credit
Agreement as amended and consents to the amendment of the Credit Agreement
effected pursuant to the First Amendment. Each Credit Support Party hereby
confirms that each Credit Support Document to which it is a party or otherwise
bound and all Collateral or Property encumbered thereby, as the case may be (in
each case as such terms are defined in the applicable Credit Support Documents),
will continue to guaranty or secure, as the case may be, to the fullest extent
possible, the payment and performance of all "Guarantied Obligations" or
"Secured Obligations", as the case may be (in each case as such terms are
defined in the applicable Credit Support Document). Without limiting the
generality of the foregoing, each Credit Support Party hereby acknowledges and
confirms the understanding and intent of such party that, upon the effectiveness
of the First Amendment, the definition of "Secured Obligations" or "Guarantied
Obligations" (in each case as such terms are defined in the applicable Credit
Support Document) includes the Obligations of the Borrowers under the Credit
Agreement. Each Subordinated Creditor hereby confirms that the Affiliate
Subordination Agreement and all "Subordinated Debt" subordinated thereby will
continue to be subordinated, to the fullest extent possible, to the payment of
all "Senior Indebtedness". Without limiting the generality of the foregoing,
each Subordinated Creditor hereby acknowledges and confirms the understanding
and intent of such party that, upon the effectiveness of the First Amendment,
the definition of "Senior Indebtedness" includes the Obligations of Borrowers
under the Credit Agreement.
Each Credit Support Party and each Subordinated Creditor
acknowledges and agrees that any of the Credit Support Documents to which it is
a party or otherwise bound and the Affiliate Subordination Agreement shall
continue in full force and effect and that all of its obligations thereunder
(which obligations on the date hereof remain absolute and unconditional and are
not subject to any defense, set-off or counterclaim) shall be valid and
enforceable and shall not be impaired or limited by the execution or
effectiveness of the First Amendment. Each Credit Support Party and Subordinated
Creditor represents and warrants that all representations
C-2
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and warranties contained in the Credit Agreement and the Credit Support
Documents to which it is a party or otherwise bound and the Affiliate
Subordination Agreement are true and correct in all material respects on and as
of the date hereof to the same extent as though made on and as of that date,
except to the extent such representations and warranties specifically relate to
an earlier date, in which case they were true and correct in all material
respects on and as of such earlier date.
Each Credit Support Party (other than the Borrowers) and each
Subordinated Creditor acknowledges and agrees that (i) notwithstanding the
execution of this Acknowledgment and Consent or the conditions to effectiveness
set forth in the First Amendment, such Credit Support Party or Subordinated
Creditor is not required by the terms of the Credit Agreement or any other Loan
Document to consent to the amendments to the Credit Agreement effected pursuant
to the First Amendment and (ii) nothing in the Credit Agreement, this
Acknowledgment and Consent or any other Loan Document shall be deemed to require
the consent of such Credit Support Party or such Subordinated Creditor to any
future amendments to the Credit Agreement.
THIS ACKNOWLEDGMENT AND CONSENT AND THE RIGHTS AND OBLIGATIONS
OF THE UNDERSIGNED SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN
ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW YORK (INCLUDING WITHOUT
LIMITATION SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF NEW
YORK), WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES.
[Remainder of page intentionally left blank]
C-3
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IN WITNESS WHEREOF, the undersigned have caused this
Acknowledgment and Consent to be duly executed and delivered by their respective
officers thereunto duly authorized as of the date first written above.
BORROWERS:
▇▇▇▇▇▇▇ ▇▇ ACQUISITION CORP.
By:
-----------------------------------------
Name:
Title:
▇▇▇▇▇▇▇ BROADCASTING OF EASTERN NORTH
CAROLINA, INC.
By:
-----------------------------------------
Name:
Title:
▇▇▇▇▇▇▇ BROADCASTING OF EASTERN
PENNSYLVANIA, INC.
By:
-----------------------------------------
Name:
Title:
▇▇▇▇▇▇▇ BROADCASTING OF ARKANSAS, INC.
By:
-----------------------------------------
Name:
Title:
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W&B MEDIA, INC.
By:
-----------------------------------------
Name:
Title:
▇▇▇▇▇▇▇ BROADCASTING OF SOUTHWEST FLORIDA, INC.
By:
-----------------------------------------
Name:
Title:
▇▇▇▇▇▇▇ BROADCASTING OF COASTAL CAROLINA, INC.
By:
-----------------------------------------
Name:
Title:
▇▇▇▇▇▇▇-▇▇▇▇ ACQUISITION PARTNERSHIP
By: ▇▇▇▇▇▇▇ ▇▇ ACQUISITION CORP.,
its general partner
By:
---------------------------------
Name:
Title:
▇▇▇▇▇▇▇ RADIO, INC.
By:
-----------------------------------------
Name:
Title:
▇-▇
▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇:
WXTU LICENSE LIMITED PARTNERSHIP
WPOW LICENSE LIMITED PARTNERSHIP
WRXK LICENSE LIMITED PARTNERSHIP
WEWO LICENSE LIMITED PARTNERSHIP
WAZZ LICENSE LIMITED PARTNERSHIP
WDAS LICENSE LIMITED PARTNERSHIP
WJHM LICENSE LIMITED PARTNERSHIP
WIKS LICENSE LIMITED PARTNERSHIP
WMGV LICENSE LIMITED PARTNERSHIP
WXNR LICENSE LIMITED PARTNERSHIP
WFLB LICENSE LIMITED PARTNERSHIP
▇▇▇▇▇▇ LICENSE LIMITED PARTNERSHIP
By: ▇▇▇▇▇▇▇ ▇▇ ACQUISITION CORP.,
the general partner of each of the foregoing
By:
----------------------------------------
Name:
Title:
KAAY LICENSE LIMITED PARTNERSHIP
By: ▇▇▇▇▇▇▇ BROADCASTING OF ARKANSAS, INC.,
its general partner
By:
----------------------------------------
Name:
Title:
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WNCT LICENSE LIMITED PARTNERSHIP
By: ▇▇▇▇▇▇▇ BROADCASTING OF COASTAL
CAROLINA, INC.,
its general partner
By:
----------------------------------------
Name:
Title:
EASTERN NORTH CAROLINA LICENSE LIMITED PARTNERSHIP
By: ▇▇▇▇▇▇▇ BROADCASTING OF EASTERN
NORTH CAROLINA, INC.,
its general partner
By:
----------------------------------------
Name:
Title:
WTEL LICENSE LIMITED PARTNERSHIP
By: ▇▇▇▇▇▇▇ BROADCASTING OF EASTERN
PENNSYLVANIA, INC.,
its general partner
By:
----------------------------------------
Name:
Title:
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WXKB LICENSE LIMITED PARTNERSHIP
By: ▇▇▇▇▇▇▇ BROADCASTING OF SOUTHWEST
FLORIDA, INC.,
its general partner
By:
----------------------------------------
Name:
Title:
WSFL LICENSE LIMITED PARTNERSHIP
By: W&B MEDIA, INC.,
its general partner
By:
----------------------------------------
Name:
Title:
WQAM LICENSE LIMITED PARTNERSHIP
By: ▇▇▇▇▇▇▇-▇▇▇▇ ACQUISITION
PARTNERSHIP,
its general partner
By: ▇▇▇▇▇▇▇ ▇▇ ACQUISITION CORP.,
its general partner
By:
-------------------------------
Name:
Title:
C-8
30
SUBORDINATED CREDITORS:
▇▇▇▇▇▇▇ BROADCASTING OF PHILADELPHIA, INC.
By:
------------------------------------------
Name:
Title:
▇▇▇▇▇▇▇-▇▇▇▇ BROADCASTING OF MIAMI, INC.
By:
------------------------------------------
Name:
Title:
▇▇▇▇▇▇▇ BROADCASTING MANAGEMENT CORP.
By:
------------------------------------------
Name:
Title:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇,
an individual
--------------------------------------------
C-9
31
PARTNER PLEDGOR:
▇▇▇▇ MIAMI HOLDINGS, INC.
By:
------------------------------------------
Name:
Title:
▇-▇▇
▇▇
▇▇▇▇▇ ▇
[FORM OF AMENDED AND RESTATED REVOLVING NOTE]
▇▇▇▇▇▇▇ ▇▇ ACQUISITION CORP.
▇▇▇▇▇▇▇ BROADCASTING OF EASTERN NORTH CAROLINA, INC.
▇▇▇▇▇▇▇ BROADCASTING OF EASTERN PENNSYLVANIA, INC.
▇▇▇▇▇▇▇ BROADCASTING OF ARKANSAS, INC.
W&B MEDIA, INC.
▇▇▇▇▇▇▇ BROADCASTING OF SOUTHWEST FLORIDA, INC.
▇▇▇▇▇▇▇ BROADCASTING OF COASTAL CAROLINA, INC.
▇▇▇▇▇▇▇-▇▇▇▇ ACQUISITION PARTNERSHIP
▇▇▇▇▇▇▇ RADIO, INC.
$[1] NEW YORK, NEW YORK
AUGUST ___, 1999
FOR VALUE RECEIVED, ▇▇▇▇▇▇▇ ▇▇ ACQUISITION CORP., a Delaware
corporation ("FM ACQUISITION Corp."), ▇▇▇▇▇▇▇ BROADCASTING OF EASTERN NORTH
CAROLINA, INC., a North Carolina corporation ("▇▇▇▇▇▇▇ OF NORTH CAROLINA"),
▇▇▇▇▇▇▇ BROADCASTING OF EASTERN PENNSYLVANIA, INC., a Delaware corporation
("▇▇▇▇▇▇▇ OF Pennsylvania"), ▇▇▇▇▇▇▇ BROADCASTING OF ARKANSAS, INC., a Delaware
corporation ("▇▇▇▇▇▇▇ OF ARKANSAS"), W&B MEDIA, INC., a North Carolina
corporation ("W&B"), ▇▇▇▇▇▇▇ BROADCASTING OF SOUTHWEST FLORIDA, INC., a Delaware
corporation ("▇▇▇▇▇▇▇ OF FLORIDA"), ▇▇▇▇▇▇▇ BROADCASTING OF COASTAL CAROLINA,
INC., a Delaware corporation ("▇▇▇▇▇▇▇ OF COASTAL CAROLINA"), ▇▇▇▇▇▇▇-▇▇▇▇
ACQUISITION PARTNERSHIP, a Delaware general partnership ("▇▇▇▇▇▇▇-▇▇▇▇"), and
▇▇▇▇▇▇▇ RADIO, INC., a Delaware corporation ("▇▇▇▇▇▇▇ RADIO"; each of FM
Acquisition Corp., ▇▇▇▇▇▇▇ of North Carolina, ▇▇▇▇▇▇▇ of Pennsylvania, ▇▇▇▇▇▇▇
of Arkansas, W&B, ▇▇▇▇▇▇▇ of Florida, ▇▇▇▇▇▇▇ of Coastal Carolina, ▇▇▇▇▇▇▇-▇▇▇▇
and ▇▇▇▇▇▇▇ Radio is a "BORROWER" and collectively, the "BORROWERS"), on a joint
and several basis, promise to pay to [2] ("PAYEE"), on or before December 31,
2006, the lesser of (x) [3] ($[1]) or (y) the unpaid principal amount of all
advances made by Payee to Borrowers as Revolving Loans under the Credit
Agreement referred to below.
Each Borrower, jointly and severally, also promises to pay
interest on the unpaid principal amount hereof, from the date of the making of
any advance representing such principal amount until paid in full, at the rates,
at the times and from the dates which shall be determined in accordance with the
provisions of that certain Credit Agreement dated as of March 30, 1998, as
amended by that certain First Amendment to Credit Agreement dated as of August
___, 1999 (such agreement as amended, and as it may be further amended,
restated, replaced, supplemented or otherwise modified from time to time, the
"CREDIT AGREEMENT"; capitalized terms used herein
--------
[1] Insert amount of Lender's Revolving Loan Commitment in numbers.
[2] Insert Lender's name in capital letters.
[3] Insert amount of Lender's Revolving Loan Commitment in words.
D-1
33
without definition shall have the meanings assigned to those terms in the Credit
Agreement) by and among Borrowers, on a joint and several basis, the lenders
listed therein (each individually referred to herein as a "LENDER" and
collectively as "LENDERS"), and Bank of Montreal, Chicago Branch, as Agent
("AGENT").
This Note is one of Borrowers' "Revolving Notes" in the
aggregate principal amount of $150,000,000 and is issued, together with the
other Revolving Notes, to amend and restate without interruption or novation,
certain indebtedness evidenced by the Revolving Notes and is issued pursuant to
and entitled to the benefits of the Credit Agreement, to which reference is
hereby made for a more complete statement of the terms and conditions under
which the Revolving Loans evidenced hereby were made and are to be repaid.
All payments of principal and interest in respect of this Note
shall be made in lawful money of the United States of America in same day funds
at the office of Agent located at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇,
or at such other place as shall be designated in writing for such purpose in
accordance with the terms of the Credit Agreement. Until notified in writing of
the transfer of this Note in accordance with the terms of the Credit Agreement,
Borrowers and Agent shall be entitled to deem Payee (or such person who has been
identified by the transferor in writing to Borrowers and Agent as the owner and
holder of this Note) as the owner and holder of this Note. Each of Payee and any
subsequent holder of this Note agrees, by its acceptance hereof, that before
disposing of this Note or any part hereof it will make a notation hereon of all
principal payments previously made hereunder and of the date to which interest
hereon has been paid; provided, however, that the failure to make a notation of
any payment made on this Note shall not limit or otherwise affect the obligation
of Borrowers hereunder with respect to payments of unpaid principal or interest
on this Note.
Whenever any payment on this Note shall be stated to be due on
a day which is not a Business Day, such payment shall be made on the next
succeeding Business Day and such extension of time shall be included in the
computation of the payment of interest on this Note; provided, however, that in
the event that the day on which payment relating to a LIBOR Rate Loan is due is
not a Business Day but is a day of the month after which no further Business Day
occurs in such month, then the due date thereof shall be the next preceding
Business Day.
This Note is subject to mandatory prepayment as provided in
subsection 2.4B(iii) of the Credit Agreement and to prepayment at the option of
Borrowers as provided in subsection 2.4B(i) of the Credit Agreement.
THE CREDIT AGREEMENT AND THIS NOTE SHALL BE GOVERNED BY, AND
SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE
STATE OF NEW YORK, WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES.
Upon the occurrence of an Event of Default, the unpaid balance
of the principal amount of this Note may become, or may be declared to be, due
and payable in the manner, upon the conditions and with the effect provided in
the Credit Agreement.
D-2
34
The terms of this Note are subject to amendment only in the
manner provided in the Credit Agreement.
No reference herein to the Credit Agreement and no provision
of this Note or the Credit Agreement shall alter or impair the obligations of
Borrowers, which are absolute and unconditional, to pay the principal of and
interest on this Note at the place, at the respective times, and in the currency
herein prescribed.
Each Borrower, jointly and severally, promises to pay all
costs and expenses, including reasonable attorneys' fees, all as provided in
subsection 10.2 of the Credit Agreement, incurred in the collection and
enforcement of this Note. Each Borrower and any endorsers of this Note hereby
consent to renewals and extensions of time at or after the maturity hereof,
without notice, and hereby waive diligence, presentment, protest, demand and
notice of every kind and, to the full extent permitted by law, the right to
plead any statute of limitations as a defense to any demand hereunder.
This Note is secured by certain Security Documents including,
without limitation, the Pledge and Security Agreement and Mortgages.
[Remainder of page intentionally left blank]
D-3
35
IN WITNESS WHEREOF, each Borrower has caused this Note to be duly
executed and delivered by its officer thereunto duly authorized as of the date
and at the place first written above.
▇▇▇▇▇▇▇ ▇▇ ACQUISITION CORP.
By:
----------------------------------------------
Name:
Title:
▇▇▇▇▇▇▇ BROADCASTING OF EASTERN
NORTH CAROLINA, INC.
By:
----------------------------------------------
Name:
Title:
▇▇▇▇▇▇▇ BROADCASTING OF EASTERN
PENNSYLVANIA, INC.
By:
----------------------------------------------
Name:
Title:
▇▇▇▇▇▇▇ BROADCASTING OF ARKANSAS, INC.
By:
----------------------------------------------
Name:
Title:
D-4
36
W&B MEDIA, INC.
By:
----------------------------------------------
Name:
Title:
▇▇▇▇▇▇▇ BROADCASTING OF SOUTHWEST
FLORIDA, INC.
By:
----------------------------------------------
Name:
Title:
▇▇▇▇▇▇▇ BROADCASTING OF COASTAL
CAROLINA, INC.
By:
----------------------------------------------
Name:
Title:
▇▇▇▇▇▇▇-▇▇▇▇ ACQUISITION
PARTNERSHIP
By: ▇▇▇▇▇▇▇ ▇▇ ACQUISITION CORP.,
its general partner
By:
-------------------------------------
Name:
Title:
▇▇▇▇▇▇▇ RADIO, INC.
By:
----------------------------------------------
Name:
Title:
D-5
37
TRANSACTIONS
ON
REVOLVING NOTE
Outstanding
Type of Amount of Amount of Principal
Loan Made Loan Made Principal Paid Balance Notation
Date This Date This Date This Date This Date Made By
---- --------- --------- --------- --------- -------
D-6