FORM OF
CONSENT AND AMENDMENT
March 24, 1997
To the Banks parties to the
Credit Agreement referred to below
Gentlemen:
We refer to the Second Amended and Restated Credit Agreement
dated as of November 22, 1996 (the "Credit Agreement") among SFX Broadcasting,
Inc. (the "Borrower"), the Subsidiaries of the Borrower from time to time
parties thereto, the Lenders from time to time parties thereto and The Bank of
New York, as Agent (the "Agent"), as amended by the First Amendment to the
Second Amended and Restated Credit Agreement dated as of January 22, 1997.
Unless otherwise defined herein, the terms defined in the Credit Agreement
shall be used herein as therein defined.
We have notified the Agent that we have entered into an
agreement to acquire four radio stations in Pittsburgh, Pennsylvania (WDVE-FM,
WXDX-FM, WDSY-FM and WJJJ-FM) and three radio stations in Indianapolis,
Indiana (WFBQ-FM, WRZX-FM and WNDE-AM) from Secret Communications, L.P., a
Delaware limited partnership (the "Stations").
Pursuant to Section 6.14(c) of the Credit Agreement relating
to Permitted Acquisitions, the Borrower may make a Permitted Acquisition so
long as no Default or Event of
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Default would exist before and after giving effect to such Permitted
Acquisition. Pursuant to the definition of "Permitted Acquisition" set forth
in Section 1.1 of the Credit Agreement, the Borrower is required to obtain the
approval of the Required Lenders for any acquisition not specifically
referenced in such definition. In that the acquisition of the Stations is not
so referenced, we hereby request your consent in order that the Borrower may
acquire the Stations as described above.
We have also notified the Agent that we, together with a
wholly-owned subsidiary, SFX Holdings, Inc., a Delaware corporation, have
entered into a separate agreement with EZ Communications, Inc., a Virginia
corporation, Professional Broadcasting, Incorporated, a Virginia corporation,
and EZ Philadelphia, Inc., a Virginia corporation, to exchange one of the
stations being acquired in Pittsburgh, Pennsylvania (WDSY-FM) and $20 million
cash for WRFX-FM located in Kannapolis, North Carolina and serving the
Charlotte, North Carolina market (the "Exchange"). Pursuant to Section 6.14(b)
of the Credit Agreement the Borrower is prohibited from directly or indirectly
exchanging any of its assets except as specifically referenced in Section
6.14(b) and so long as no Default or Event of Default would exist before or
after giving effect thereto. In that the Exchange is not so referenced, we
hereby request that you consent to the amendment of the Credit Agreement by
deleting Section 6.14(b) therein in its entirety and inserting in lieu thereof
the following:
"(b) Exchange of Assets. No Obligor shall, directly or
indirectly, exchange any of its assets except as permitted by Section
6.5, and so long as no Default or Event of Default would exist before
or after giving effect thereto, other than:
(i) KRLD-AM and the Texas State Networks in
Dallas, Texas for KKRW-FM in Houston, Texas;
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(ii) WBAB-FM, WHFM-FM, WBLI-FM and WGBB-
AM in Long Island for stations WFYW-FM and WAPE-FM in
Jacksonville, Florida;
(iii) KTXQ-FM and KRRW-FM in Dallas, Texas for
station WHFS-FM serving Washington DC/Baltimore, Maryland; and
(iv) WDSY-FM in Pittsburgh, Pennsylvania and $20
million cash for WRFX-FM located in Kannapolis, North Carolina and
serving the Charlotte, North Carolina market; and
(v) other assets provided that:
(A) (1) the BCF attributable to all radio
broadcast stations sold and/or exchanged
during the one-year period ending on the
date of the proposed exchange shall not
exceed 15% of the BCF of the Borrower;
(2) the BCF attributable to all
radio broadcast stations sold and/or
exchanged since the date of this
Agreement, after giving effect to the
proposed exchange, shall not exceed 25% of
the BCF of the Borrower;
(3) fair value is received by
any of the Obligors; and
(4) at least 75% of the
consideration to be received by any of the
Obligors is in the form of a radio
broadcast station or other assets used in
the broadcast of radio programming and/or
cash or cash equivalents.
(B) the assets received by any of the
Obligors pursuant to such exchanges qualify
as a Permitted Acquisition."
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In that the Credit Agreement does not provide for
investments in Subsidiaries organized in connection with an Exchange of
Assets, we hereby request that you consent to the amendment of the Credit
Agreement by deleting in its entirety the definition of "Permitted
Investments" set forth in Section 1.1 of the Credit Agreement and inserting in
lieu thereof the following:
"Permitted Investments" means (a) investments in obligations
of the United States of America maturing within one year from the
date of acquisition, (b) certificates of deposit issued by commercial
banks organized under the Laws of the United States of America or any
state thereof and having a combined capital, surplus and undivided
profits of not less than $100,000,000, (c) investments in commercial
paper, maturing not more than 90 days after the date of issue, issued
by a Person (other than an Affiliate) with a rating of "P-1" (or its
then equivalent) according to Xxxxx'x Investors Service, Inc., "A-1"
(or its then equivalent) according to Standard & Poor's Corporation,
or a better rating, (d) investments in Wholly-Owned Subsidiaries
identified on Schedule 4.4(D), in Wholly-Owned Subsidiaries organized
in connection with Permitted Acquisitions and in Wholly-Owned
Subsidiaries organized in connection with an exchange of assets as
permitted by Section 6.14(b), and (e) the investment in ABS equal to
at least a 96% interest therein.
In addition, we hereby request that you consent to the
amendment of the Credit Agreement by deleting in its entirety Section 5.13
thereof and inserting in lieu thereof the following:
"Section 5.13 Further Documentation. In the event that
stations WBAB-FM, WHFM-FM, WBLI-FM and WGBB-AM in Long Island shall
not be exchanged as permitted by and in accordance with Section
6.14(b)(ii) within 270 days from the date hereof, Borrower shall
cause to be promptly delivered to the Agent, the documents described
in Section 3.1(c), and such other documentation as the Agent may from
time to time, in its discretion request, all in form and substance
satisfactory to the Agent."
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We also request that you consent to the amendment of the
Credit Agreement by deleting in its entirety Section 4.29 thereof and
inserting in lieu thereof the following:
"Section 4.29 License Subsidiaries. Except as set forth in
Schedule 4.29, all FCC licenses and other authorizations relating to
the Stations and all FCC licenses and other authorizations relating
to any other stations acquired in connection with a Permitted
Acquisition or asset exchange are held by their respective License
Subsidiaries. In the case of those stations set forth on Schedule
4.29 and those stations acquired in connection with a Permitted
Acquisition or asset exchange, Borrower shall cause by the later of
(i) April 30, 1997 or (ii) 60 days after such acquisition, all FCC
licenses another authorizations relating to such stations to be held
by their respective License Subsidiaries. No License Subsidiary (a)
owns or holds any assets (including the ownership of stock or any
other interest in any Person) other than Operating Agreements and FCC
licenses and other authorizations relating to the Stations and
Operating Agreements and FCC licenses and other authorizations
relating to any other stations acquired in connection with Permitted
Acquisitions, (b) is engaged in any business other than the holding,
acquisition and maintenance of FCC licenses and other authorizations,
(c) has any investments in any other Person or (d) owes any Debt to
any Person other than Intercompany Debt."
We also request that you consent to the amendment of the
Credit Agreement by deleting in its entirety Section 6.25(e) thereof and
inserting in lieu thereof the following:
"(e) From and after April 30, 1997 (or if an Operating
Subsidiary is formed or acquired by the Borrower after the date
hereof, from and after the date which is 60 days after such formation
or acquisition), no Operating Subsidiary shall operate, manage or
direct the day-to-day operations of any Station or any station
acquired pursuant to a Permitted Acquisition or a permitted asset
exchange unless it has entered into an Operating Agreement with a
License Subsidiary and such Operating Agreement is in full force and
effect."
Moreover, we hereby request you consent to the substitution
of Schedule 1.1(D) of the Credit Agreement with Schedule 1.1(D) hereto.
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Please evidence your consent to these requests by executing
and returning at least two counterparts of this Consent to the Agent's
counsel, Xxxxxxxx & Xxxxxxxx, 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
attention of Xxxxx Xxxxxxxxxxx, facsimile no. (000) 000-0000. This consent
shall become effective when and if (a) counterparts of this Consent shall have
been executed by the Required Lenders and (b) the Borrower shall have complied
with the provisions of Section 5.12 of the Credit Agreement regarding New
Subsidiaries. This Consent is subject to the provisions of Section 10.10(c)
relating to waivers and consents in respect of Credit Agreement.
Very truly yours,
SFX BROADCASTING, INC.
By:____________________________________
Title:
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Agreed as of the date first written above:
THE BANK OF NEW YORK
By:________________________________
Title:
BANK OF TOKYO-MITSUBISHI TRUST COMPANY
By:________________________________
Title:
BANKERS TRUST COMPANY
By:________________________________
Title:
BANK OF MONTREAL
By:________________________________
Title:
BANQUE NATIONALE DE PARIS
By:________________________________
Title:
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CIBC, INC.
By:________________________________
Title:
CORESTATES BANK N.A.
By:________________________________
Title:
THE FUJI BANK, LIMITED, NEW YORK
By:________________________________
Title:
XXXXXX COMMERCIAL PAPER INC.
By:________________________________
Title:
NATIONAL BANK OF CANADA
By:________________________________
Title:
NATIONAL CITY BANK
By:________________________________
Title:
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SOCIETE GENERALE
By:________________________________
Title:
SOUTHERN PACIFIC THRIFT
& LOAN ASSOCIATION
By:________________________________
Title:
THE SUMITOMO BANK, LIMITED
By:________________________________
Title:
SUNTRUST BANK, CENTRAL FLORIDA, N.A.
By:________________________________
Title:
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SCHEDULE 1.1(D)
PERMITTED DEBT
1. Note payable to Xxxx Xxxxxx from SFX Broadcasting, Inc. for the purchase of the assets and
broadcast license of WKTF in Jackson, MS entered into in December, 1993. Balance of
$597,717.
2. Note payable to Carolina First Bank from SFX Broadcasting, Inc. for satellite equipment in
Greenville, SC entered into in April, 1993. Balance of $20,050.
3. Capital lease between Metropolitan Broadcasting of Dallas, Inc. and IBM Credit Corp. for
a mini computer in Dallas, TX entered into in June, 1992. Balance of $28,656.
4. Capital lease between Metropolitan Broadcasting of Dallas, Inc. and Xxxxx Financial for
computer equipment and software in Dallas, TX entered into in February, 1993. Balance of
$37,066.
5. Capital lease between SFX Broadcasting, Inc. and Tokai Financial for modular furniture in
Dallas, TX entered into in May, 1995. Balance of $54,844.
6. Capital lease between SFX Broadcasting, Inc. and IBM Credit Corp. for mini computer in
Jackson, MS entered into in January, 1994. Balance of $18,608.
7. Note payable between Capstar Communications of South Carolina (WMYI), Inc. and
Carolina First Bank for a vehicle in Greenville, SC entered into in August, 1993. Balance of
$5,910.
8. Note payable between Capstar Communications of South Carolina (WMYI), Inc. and
Carolina First Bank for computer equipment in Greenville, SC entered into in April, 1993.
Balance of $8,224.
9. Capital lease between SFX Broadcasting, Inc. and IBM Credit Corp. for mini computer in
Greenville, SC entered into in March, 1994. Balance of $19,438.
10. Capital lease between Capstar Communications Inc. and Devon Capital Corp. for
broadcasting equipment in Nashville, TN entered into in January, 1992. Balance of $3,749.
11. Capital lease between SFX Broadcasting, Inc. and IBM Credit Corp. for mini computer in
Nashville, TN entered into in December, 1993. Balance of $21,746.
12. Letter of credit between SFX Broadcasting, Inc. and Chemical Bank payable to 000 X. 00xx
Xx. Partners with respect to leased space in New York, NY. Balance of $125,000.
13. Notes payable to Texas Stadium Corporation for two stadium suites in Dallas, TX entered
into in August, 1989. Balance of $644,818.
14. Capital lease between SFX Broadcasting, Inc. and Priority Leasing for satellite equipment
in Dallas, TX entered into in July, 1995. Balance of $287,078.
15. Capital lease between BB&T Leasing Company and SFX Broadcasting, Inc. for furniture in
Charlotte, NC entered into in March, 1996. Balance of $100,738.
16. Capital leases between Creative Financial Service and WMXB for a 1993
- Plymouth Grand Voyager in Richmond, VA entered into in July, 1993.
Balance of $8,000.
17. Capital leases between AT&T and WGNA for a Merlin Phone System in Latham, NY
entered into in August, 1993. Balance of $7,011.
18. Capital leases between AT&T and WPYX for a Merlin Phone System in Latham, NY
entered into in June, 1996. Balance of $37,186.
19. Notes payable to Wachovia Bank of South Carolina, NA for a vehicle in Greenville, SC
entered into in April, 1996. Balance of $33,275.
20. Capital leases between NEC America, Inc. and SFX Broadcasting, Inc. for phone equipment
in San Diego, CA entered into in May, 1995. Balance of $25,155.52.
21. Capital leases between Ford Financial Services, Inc. and SFX Broadcasting, Inc. for furniture
in San Diego, CA entered into in July, 1995. Balance of $38,343.
22. Capital leases between Capelco Capital, Inc. and SFX Broadcasting, Inc. for office
equipment in San Diego, CA entered into in January, 1995. Balance of $46,648.
23. Notes payable to Xxxxxx Xxxxxxx Xxxx for a vehicle in Greenville, SC entered into in April,
1995. Balance of $7,344.
24. Capital leases between CFC Funding Corporation and SEX Broadcasting, Inc. for equipment
in Dallas, TX entered into in July, 1995. Balance of $32,141.
25. All indebtedness of MMR or any Subsidiary thereof which will become
an Obligor upon consummation of the MMR Merger, provided that such
indebtedness was in existence as of September 30, 1996. From and
after the date which is five business days after the closing of
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the MMR Merger, indebtedness owed by MMR to Finova Capital Corporation and The Xxxx
Alternative Fund L.P. shall be excluded from the definition of Permitted Debt.
26. All capital leases, purchase money debt and other ordinary course of business debt of any
company acquired by the Borrower pursuant to a Permitted Acquisition (which for the
avoidance of doubt shall include debt assumed in connection with the Purchase of
Nederlander of Connecticut, Inc., a Connecticut corporation, Connecticut Amphitheater
Development Corporation, a Connecticut corporation, QN Corp., a Connecticut corporation,
Connecticut Performing Arts, Inc., a Connecticut corporation, and Connecticut Performing
Arts Partners) provided that such capital leases, purchase money debt or other ordinary
course of business debt was in existence on the closing of such Permitted Acquisition.
27. The Existing Subordinated Notes.
28. The New Notes.
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