EXHIBIT 99.2
FORM OF LIMITED WAIVER REGARDING FINANCIAL COVENANTS
May 31, 2002
The Xxxxxxxx Group, Inc.
0000 Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxx X. Xxxxxx
Ladies and Gentlemen:
Reference is made to that certain Credit Agreement dated as of September
7, 2001 (said Credit Agreement being the "CREDIT AGREEMENT", the terms defined
therein being used herein as therein defined), among The Xxxxxxxx Group, Inc., a
Delaware corporation ("COMPANY"), the financial institutions listed therein
("LENDERS"), Credit Suisse First Boston, as administrative agent (the
"ADMINISTRATIVE AGENT"), and General Electric Capital Corporation, as
co-arranger and syndication Administrative Agent ("SYNDICATION AGENT").
In connection with that certain Limited Waiver dated as of March 18,
2002, Company had informed Administrative Agent and Lenders that Company would
not be in compliance with the financial covenants in subsection 7.6 of the
Credit Agreement for the Fiscal Year ended December 31, 2001 and for the first
Fiscal Quarter ending March 31, 2002. Company has informed Administrative Agent
and Lender that Company does not expect to be in compliance with the financial
covenants in subsection 7.6 of the Credit Agreement for the second Fiscal
Quarter ending June 30, 2002. At the request of Company the undersigned Lenders,
constituting Requisite Lenders under subsection 10.6 of the Credit Agreement,
hereby waive compliance with the provisions of subsection 7.6 of the Credit
Agreement during the period from the date this Limited Waiver becomes effective
through and including July 31, 2002 (the "WAIVER PERIOD"), provided, that (A)
during the Waiver Period, the Company shall not be permitted to borrow any
Revolving Loans and provided further that (B) if the Agreement and Plan of
Merger dated October 5, 2001 (the "MERGER AGREEMENT"), by and among Clear
Channel Communications, Inc. ("CLEAR CHANNEL"), CCMM Sub, Inc. and Company,
pursuant to which, subject to the terms and conditions therein contained,
Company expects to be acquired by Clear Channel through a merger of CCMM Sub,
Inc. with and into Company (the "MERGER") is terminated for any reason or the
FCC disapproves the Merger for any reason, then (i) the outstanding principal
amount of all Loans, and any interest payments thereon not paid when due and any
fees and other amounts then due and payable hereunder shall bear interest at a
rate that is 2% per annum in excess of the interest rate otherwise payable under
the Credit Agreement with respect to the applicable Loans (or in the case of any
such fees and other amounts, at a rate that is 2% per annum in excess of the
interest rate otherwise payable under the Credit Agreement for Base Rate Loans),
retroactive to and commencing on April 1, 2002, (ii) in the case any of the
Loans outstanding pursuant to clause (i) above are Eurodollar Rate Loans, upon
the expiration of the Interest Period in effect at the
time any such increase in interest rate is effective, such Eurodollar Rate Loans
shall thereupon become Base Rate Loans and shall thereafter bear interest
payable upon demand at a rate which is 2% per annum in excess of the interest
rate otherwise payable Base Rate Loans, and (iii) on or before the date that is
ten (10) Business Days after the earlier of the date the FCC disapproves the
Merger or the Merger Agreement is terminated, the Company shall hold a
conference call with Administrative Agent, Syndication Agent and the Lenders to
discuss the Company's projected liquidity, current and projected financial
performance and debt reduction alternatives. If the condition set forth in the
foregoing proviso (B)(iii) is not fulfilled, then the Waiver Period shall
immediately terminate without further action or notice on the part of the
Requisite Lenders, the Administrative Agent or the Syndication Agent.
Without limiting the generality of the provisions of subsection 10.6 of
the Credit Agreement, the waiver set forth herein shall be limited precisely as
written and relates solely to the noncompliance by Company with the provisions
of subsection 7.6 during the Waiver Period for the Fiscal Year ended December
31, 2001 and for the first and second Fiscal Quarters of 2002, and nothing in
this Limited Waiver shall be deemed to (a) constitute a waiver of compliance by
Company with respect to (i) subsection 7.6 of the Credit Agreement in any other
instance or (ii) any other term, provision or condition of the Credit Agreement
or any other instrument or agreement referred to therein (whether in connection
with this Limited Waiver or otherwise) or (b) prejudice any right or remedy that
Administrative Agent or any Lender may now have (except to the extent such right
or remedy was based upon existing defaults that will not exist after giving
effect to this Limited Waiver) or may have in the future under or in connection
with the Credit Agreement or any other instrument or agreement referred to
therein. Except as expressly set forth herein, the terms, provisions and
conditions of the Credit Agreement and the other Loan Documents shall remain in
full force and effect and in all other respects are hereby ratified and
confirmed.
In order to induce Lenders to enter into this Limited Waiver, Company,
by its execution of a counterpart of this Limited Waiver, represents and
warrants that after giving effect to this Limited Waiver (a) no Event of Default
or Potential Event of Default exists under the Credit Agreement, (b) all
representations and warranties contained in the Credit Agreement and the other
Loan Documents are true, correct and complete in all material respects on and as
of the date hereof 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, and (c)
Company has performed all agreements to be performed on its part as set forth in
the Credit Agreement.
This Limited Waiver 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. The limited waiver
set forth herein shall become effective as of the date hereof upon the execution
of counterparts hereof by Company and the Subsidiary Guarantors and by Lenders
constituting Requisite Lenders and receipt by each Lender consenting to this
Limited Waiver by 5:00 p.m., New York time, on May ___, 2002, of a fee in an
amount equal to 0.25% of the sum of such Xxxxxx's outstanding Term Loans and
Revolving Loan Commitments.
2
THIS LIMITED WAIVER AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES
HEREUNDER 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.
ADMINISTRATIVE AGENT:
CREDIT SUISSE FIRST BOSTON,
individually and as Administrative Agent
By:
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Title:
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COMPANY:
THE XXXXXXXX GROUP, INC.,
By:
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Xxxxx X. Xxxxxx
Chief Financial Officer and
Assistant Secretary
SYNDICATION AGENT:
GENERAL ELECTRIC CAPITAL CORPORATION,
as Co-Arranger and Syndication Agent
By:
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Duly authorized signatory
3
By its execution of a counterpart of this Limited Waiver, the
undersigned, as Guarantors under that certain Subsidiary Guaranty dated as of
September 7, 2002 (the "GUARANTY") in favor of Administrative Agent for the
benefit of Lenders, hereby acknowledge that they have read this Limited Waiver
and consent to the terms thereof and further hereby confirm and agree that,
notwithstanding the effectiveness of this Limited Waiver, the obligations of the
undersigned under the Guaranty shall not be impaired or affected and the
Guaranty is, and shall continue to be, in full force and effect and is hereby
confirmed and ratified in all respects.
XXXXXXXX MEDIA GROUP, INC.
XXXXXXXX VENTURES, INC.
AK FLORIDA OUTDOOR, INC.
XXXXXXXX BROADCASTING FRESNO, LLC
XXXXXXXX COMMUNICATIONS OF MASSACHUSETTS, INC.
FULL HOUSE SPORTS AND ENTERTAINMENT, INC.
CENTRAL NY NEWS, INC.
TC AVIATION, INC.
XXXXXXXX INTERACTIVE MEDIA, INC.
AK MOBILE TELEVISION, INC.
SSI, INC.
XXXXXXXX SEATTLE STORM, INC.
By:
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On behalf of each of the entities immediately
preceding this signature block
Xxxxx X. Xxxxxx
Treasurer and Assistant Secretary
4
By signing below, the undersigned Xxxxxx xxxxxx (i) authorizes Credit Suisse
First Boston, in its capacity as Administrative Agent pursuant to that certain
Credit Agreement dated as of September 7, 2001, among The Xxxxxxxx Group, Inc.,
a Delaware corporation, Credit Suisse First Boston, as administrative agent for
the financial institutions listed therein (in such capacity, "ADMINISTRATIVE
AGENT") and certain other parties named therein to execute and deliver that
certain Limited Xxxxxx Xxxxxxxxx Financial Covenants dated as of May 31, 2002,
on such Xxxxxx's behalf, (ii) approves such Limited Waiver Regarding Financial
Covenants and (iii) agrees that such Limited Waiver Regarding Financial
Covenants shall be binding upon such Lender.
--------------------------------,
as a Lender
By:
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Name:
Title:
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