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EXHIBIT 10.7
FIRST AMENDMENT TO
AMENDED AND RESTATED
REVOLVING CREDIT AND TERM LOAN AGREEMENT
This FIRST AMENDMENT, dated as of February 6, 1998 (this "Amendment"), by
and among (a) Emmis Broadcasting Corporation, an Indiana corporation (the
"Borrower"), (b) BankBoston, N.A., Toronto Dominion (Texas), Inc., First Union
National Bank, Fleet Bank, N.A., Union Bank of California, N.A., The Bank of
New York, Mellon Bank, Barclays Bank PLC, Bank of America, Bank One, Indiana,
N.A., Bank of Montreal, Compagnie Financiere de CIC et de l'Union Europeenne,
Xxxxxx Commercial Paper Inc., Cooperatieve Centrale Raiffeisen-Boerenleenbank
B.A., "Rabobank Nederland", New York Branch, SunTrust Bank, Central Florida,
N.A., Banque Nationale de Paris, Banque Paribas, Mercantile Bank National
Association, National City Bank of Indiana, Societe Generale, Toronto Dominion
(Texas), Inc., and Key Corporate Capital Inc. (collectively, the "Banks"), (c)
BankBoston, N.A., as managing agent for each of the Banks (in such capacity,
the "Managing Agent"), and (d) The Toronto-Dominion Bank and First Union
National Bank as documentation agents, and Fleet Bank, N.A., Union Bank of
California, N.A., Key Corporate Capital Inc., The Bank of New York, Mellon Bank
and Barclays Bank PLC as co-agents (collectively, together with the Managing
Agent, the "Agents").
WHEREAS, the Borrower, the Banks and the Agents are parties to that
certain Amended and Restated Revolving Credit and Term Loan Agreement, dated as
of July 1, 1997, as amended (as amended and in effect, the "Credit Agreement");
and
WHEREAS, the Borrower has requested and the Banks have agreed, subject to
the terms and conditions set forth herein, to modify certain provisions of the
Credit Agreement in connection with (i) the acquisition (the "TMI Acquisition")
by the Borrower of the capital stock of Mediatex Communications Corporation
("MCC"), which owns all of the capital stock of Texas Monthly, Inc. ("TMI") and
Mediatex Development Corporation, ("MDC"), (ii) the WTLC Acquisition and (iii)
the Corporate Restructure;
NOW, THEREFORE, the Borrower, the Banks and the Agents hereby covenant and
agree as follows:
Section 1. DEFINED TERMS. Capitalized terms which are used herein without
definition and which are defined in the Credit Agreement shall have the same
meanings herein as in the Credit Agreement.
Section 2. AMENDMENTS TO THE CREDIT AGREEMENT.
(a) The following definitions in Section 1.1 of the Credit Agreement are
hereby amended and restated in their entirety to read as follows:
"Adjusted Total Funded Debt. At any time of determination, the sum
of (a) Total Funded Debt, plus (b) (i) prior to the WQCD Closing Date, the
Net WQCD Acquisition Amount and (ii) after the WQCD Closing Date, $0."
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"Copyright Notice. Collectively, (i) the Amended and Restated
Memorandum of Grant of Security Interest in Copyrights dated as of July 1,
1997, as the same may be amended from time to time hereafter, made by the
Borrower in favor of the Managing Agent and (ii) the Memorandum of Grant
of Security Interest in Copyrights dated as of March 1, 1998, as the same
may be amended from time to time hereafter, made by Texas Monthly, Inc. in
favor of the Managing Agent, each in form and substance satisfactory to
the Banks and the Managing Agent."
"Guaranty. Collectively, (i) the Amended and Restated Guaranty,
dated as of July 1, 1997, as the same may be amended from time to time
hereafter, made by each of the Subsidiaries of the Borrower named therein
in favor of the Banks and the Managing Agent, (ii) the Subsidiary
Guaranty, dated as of March 1, 1998, made by each of the New WTLC
Subsidiaries, the New TMI Subsidiaries, the License Subsidiaries, and the
Partnership Subsidiaries in favor of the Banks and the Managing Agent,
pursuant to which each Subsidiary guaranties to the Banks and the Managing
Agent the irrevocable payment and performance in full of the Obligations,
in form and substance satisfactory to the Banks and the Managing Agent."
"License Subsidiaries. Collectively, Emmis License Corporation,
Emmis License Corporation of New York, Emmis FM License Corporation of St.
Louis, Emmis FM License Corporation of Chicago, KPWR License, Inc., Emmis
FM License Corporation of Indianapolis, Emmis FM Radio License Corporation
of Indianapolis, Emmis AM Radio License Corporation of Indianapolis, Emmis
Radio License Corporation of New York, Emmis 104.1 Radio License
Corporation of St. Louis, Emmis 106.5 FM License Corporation of St. Louis,
Emmis 105.7 FM Radio License Corporation of Indianapolis and Emmis 1310 AM
Radio License Corporation of Indianapolis, each an Indiana corporation and
after giving effect to the Corporate Restructure, each will become a
California corporation."
"Net WQCD Acquisition Amount. (a) (i) $141,000,000 at any time while
either (x) the Supplemental Agreement dated December 2, 1997 between
Tribune and the Borrower is in effect and Tribune's election thereunder is
not the subject of a revocation under Section 4 thereof and any condition
to the closing contemplated thereby which is not satisfied does not remain
unwaived by the parties thereto for more than 30 days or (y) Tribune has
exercised the option under the Option Agreement to require the Borrower to
complete the WQCD Acquisition pursuant to another tax-deferred like-kind
exchange and for so long as the Borrower and Tribune are actively pursuing
in good faith the exchange transaction contemplated by such exercise or
(ii) in any other case, $160,000,000, less (b) the sum of the Maximum
Drawing Amount under, and all Unpaid Reimbursement Obligations relating
to, all Letters of Credit issued for the benefit of Tribune to support the
Borrower's obligations under the WQCD Acquisition Documents."
"Operating Subsidiaries. Collectively, Emmis FM Broadcasting
Corporation of Indianapolis, Emmis FM Broadcasting Corporation of Chicago,
Emmis FM Broadcasting Corporation of St. Louis, Emmis Broadcasting
Corporation of New York, KPWR, Inc., Emmis FM Radio Corporation of
Indianapolis, Emmis AM Radio Corporation of Indianapolis, Emmis Holding
Corporation of New York, Emmis Radio Corporation of New York, Emmis 104.1
FM Radio Corporation of St. Louis, Emmis 106.5 FM Broadcasting Corporation
of St. Louis, Emmis International Corporation, Emmis 105.7 FM Radio
Corporation of Indianapolis, Emmis 1310 AM Radio Corporation of
Indianapolis and the New TMI Subsidiaries."
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"Pledge Agreements. Collectively, the Borrower Stock Pledge
Agreement, the Subsidiary Pledge Agreements and the Partnership Pledge
Agreements."
"Subsidiary Pledge Agreements. Collectively, (i) the Amended and
Restated Pledge Agreement, dated as of July 1, 1997, as the same may be
amended from time to time hereafter, among certain of the Subsidiaries of
the Borrower, on the one hand, and the Managing Agent, on the other hand,
(ii) the Subsidiary Pledge Agreement, dated as of March 1, 1998, among
Mediatex Communications Corporation, on the one hand, and the Managing
Agent, on the other hand, and (iii) the Subsidiary Pledge Agreement, dated
as of March 1, 1998, among Emmis License Corporation, on the one hand, and
the Managing Agent, on the other hand, each in form and substance
satisfactory to the Banks and the Managing Agent."
"Subsidiary Security Agreement. Collectively, (i) the Amended and
Restated Security Agreement dated as of July 1, 1997, as the same may be
amended from time to time hereafter, among the Subsidiaries of the
Borrower named therein, on the one hand, and the Managing Agent, on the
other hand, and (ii) the Subsidiary Security Agreement dated as of March
1, 1998 among the New WTLC Subsidiaries, the New TMI Subsidiaries, the
License Subsidiaries and the Partnership Subsidiaries on the one hand, and
the Managing Agent, on the other hand, each in form and substance
satisfactory to the Banks and the Managing Agent."
"Trademark Assignments. Collectively, (i) the Amended and Restated
Trademark Collateral Security and Pledge Agreement dated as of July 1,
1997, as the same may be amended from time to time hereafter, among the
Borrower and the Managing Agent, (ii) the Amended and Restated Trademark
Collateral Security and Pledge Agreement dated as of July 1, 1997, as the
same may be amended from time to time hereafter, among certain
Subsidiaries of the Borrower and the Managing Agent and (iii) the
Subsidiary Trademark Collateral Security and Pledge Agreement dated as of
March 1, 1998, as the same may be amended from time to time hereafter,
among Texas Monthly, Inc., Mediatex Communications Corporation and the
Managing Agent, each in form and substance satisfactory to the Banks and
the Managing Agent."
(b) Section 1.1 of the Credit Agreement is hereby amended by adding the
following new definitions in the proper alphabetical sequence thereof:
"New TMI Subsidiaries. Mediatex Communications Corporation, Texas
Monthly, Inc. and Mediatex Development Corporation."
"New WTLC Subsidiaries. Emmis 105.7 FM Radio Corporation of
Indianapolis, Emmis 105.7 FM Radio License Corporation of Indianapolis,
Emmis 1310 AM Radio Corporation of Indianapolis, and Emmis 1310 AM Radio
License Corporation of Indianapolis."
"Partnership Pledge Agreements. Collectively, (i) the Collateral
Assignment of Partnership Interests, dated as of March 1, 1998, as the
same may be amended from time to time hereafter, among the partners of the
Partnership Subsidiaries, on the one hand, and the Managing Agent, on the
other hand, and (ii) the Collateral Assignment of Partnership Interests,
dated as of March 1, 1998, as the same may be amended from time to time
hereafter, among Mediatex Development Corporation, on the one hand, and
the Managing Agent, on the other hand, each in form and substance
satisfactory to the Banks and the Managing Agent."
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"Partnership Subsidiaries. Collectively, Emmis Indiana Radio, L.P.
and Emmis Publishing, L.P."
(c) The Credit Agreement is hereby amended by replacing Schedules 1.1(b),
8.3(b), 8.3(c), 8.7, 8.19, 8.20, 8.21 and 8.22 thereto with Schedules 1.1(b),
8.3(b), 8.3(c), 8.7, 8.19, 8.20, 8.21 and 8.22 hereto.
Section 3. CONSENT. The Banks and the Managing Agent hereby consent to
the consummation by the Borrower of the Acquisition contemplated by the Stock
Purchase Agreement (the "Purchase Agreement"), among the Borrower, Xxxxxxx X.
Xxxx, Dow Xxxxx & Company, Inc., and Xxxxxxx Xxxxxx, substantially in the form
of Exhibit A hereto with such changes thereto as are approved by the Managing
Agent (other than changes to the amount of the Purchase Price as defined
therein), provided, that, each of the conditions specified in Section 4 of this
Amendment shall have been satisfied with respect to such Acquisition.
Section 4. CONDITIONS TO EFFECTIVENESS. This Amendment shall become
effective upon the satisfaction of the following conditions precedent:
(a) the execution and delivery by the Borrower, the Managing Agent and the
Banks of this Amendment;
(b) receipt by the Managing Agent of a duly executed Subsidiary Guaranty,
Subsidiary Security Agreement (referenced in clause (ii) of such definition),
Subsidiary Pledge Agreement (referenced in clause (ii) of such definition),
Trademark Assignment (referenced in clause (iii) of such definition) and
Copyright Notice (referenced in clause (ii) of such definition) and a duly
executed amendment to the Borrower Stock Pledge Agreement, each in form and
substance satisfactory to the Managing Agent, as necessary to insure that the
Managing Agent has a pledge of 100% of the issued and outstanding stock of the
New TMI Subsidiaries, a first priority perfected security interest in all of
the assets of the New TMI Subsidiaries and that the New TMI Subsidiaries are
Guarantors under the Guaranty;
(c) receipt by the Managing Agent from each of the New TMI Subsidiaries of
a completed and fully executed Perfection Certificate;
(d) receipt by the Managing Agent of the results of UCC searches with
respect to the Collateral of each New TMI Subsidiary, indicating no liens other
than Permitted Liens;
(e) receipt by the Managing Agent of such UCC financing statements as
necessary to perfect the Managing Agent's security interest in the assets of
the New TMI Subsidiaries;
(f) each owner of equity interests in the New TMI Subsidiaries shall have
delivered to the Managing Agent the certificated securities to be pledged
pursuant to the applicable Pledge Agreement, together with stock powers
therefor duly executed in blank;
(g) all filings, recordings, deliveries of instruments and other actions
necessary or desirable in the opinion of the Managing Agent to perfect the
Managing Agent's security interest in the Collateral of the New TMI
Subsidiaries and the stock of the New TMI Subsidiaries shall have been duly
effected
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and the Managing Agent shall have received evidence thereof in form and
substance satisfactory to the Managing Agent;
(h) the Managing Agent shall have received such duly executed Mortgages
with respect to any Real Estate owned or leased by any of the New TMI
Subsidiaries as the Managing Agent may request, together with related title
insurance policies, collateral assignments in the form of the Collateral
Assignment of Leases and all necessary consents from each applicable landlord,
each in form and substance satisfactory to the Managing Agent;
(i) the Managing Agent shall have received copies of environmental reports
with respect to the Real Estate of the New TMI Subsidiaries;
(j) the Borrower shall have furnished to the Managing Agent a duly
executed certificate substantially in the form of Exhibit B hereto;
(k) the Managing Agent shall have received from each New TMI Subsidiary
(i) a certificate of the Secretary of State of each jurisdiction in which such
Subsidiary is incorporated or qualified to do business as to the legal
existence and good standing of such New TMI Subsidiary, (ii) its charter,
certified as of a recent date by the Secretary of State of its jurisdiction of
incorporation, (iii) its by-laws, certified by a duly authorized officer of
such New TMI Subsidiary as of the date hereof, (iv) the resolutions of the
Board of Directors of such New TMI Subsidiary authorizing the execution,
delivery and performance of the Security Documents to which it is to become a
party as required hereby, certified by a duly authorized officer of such New
TMI Subsidiary and (v) a certificate of an officer of such New TMI Subsidiary
as to the incumbency and signature of officers authorized to execute and
deliver the documents contemplated hereby;
(l) the Banks and the Managing Agent shall have received opinions from
counsel to the Borrower and its Subsidiaries and counsel to the Sellers under
the Purchase Agreement, each in form and substance satisfactory to the Banks
and the Managing Agent;
(m) the Managing Agent shall have received evidence satisfactory to it
that (i) all liens and encumbrances with respect to the properties and assets
of the New TMI Subsidiaries, other than Permitted Liens, have been discharged
in full and (ii) all outstanding Indebtedness of the New TMI Subsidiaries,
other than Indebtedness permitted by the Credit Agreement, has been paid in
full;
(n) the Managing Agent shall have received (i) evidence that the Borrower
has completed the TMI Acquisition in accordance with the terms of the Purchase
Agreement and (ii) certified copies of the Purchase Agreement and the other
acquisition documents executed in connection therewith; and
(o) the Managing Agent shall have received evidence that all conditions
precedent to the Corporate Restructure Closing Date have been satisfied and
performed in full as set forth in Section 15 of the Credit Agreement.
Section 5. AFFIRMATION OF THE BORROWER. The Borrower hereby affirms all
of its Obligations under the Credit Agreement and under each of the other Loan
Documents to which it is a party and hereby affirms its absolute and
unconditional promise to pay to the Banks the Loans and all other amounts due
under the Credit Agreement and the other Loan Documents. The Borrower hereby
represents, warrants and confirms that the Obligations are and remain secured
pursuant to the Security Documents.
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Section 6. REPRESENTATIONS AND WARRANTIES. The Borrower hereby represents
and warrants to the Banks and the Managing Agent as follows:
(a) Representations and Warranties. Each of the representations and
warranties contained in Section 8 of the Credit Agreement were true and correct
in all material respects when made, and, after giving effect to this Amendment,
are true and correct on and as of the date hereof, except to the extent that
such representations and warranties relate specifically to a prior date.
(b) Enforceability. The execution and delivery by the Borrower of this
Amendment, and the performance by the Borrower of this Amendment and the Credit
Agreement, as amended hereby, are within the corporate authority of the
Borrower and have been duly authorized by all necessary corporate proceedings.
This Amendment and the Credit Agreement, as amended hereby, constitute valid
and legally binding obligations of the Borrower, enforceable against it in
accordance with their terms, except as limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws relating to or affecting the
enforcement of creditors' rights in general.
(c) No Default. No Default or Event of Default has occurred and is
continuing, and no Default or Event of Default will result from the execution,
delivery and performance by the Borrower of this Amendment.
Section 7. NO OTHER AMENDMENTS, ETC. Except as expressly provided in this
Amendment, (a) all of the terms and conditions of the Credit Agreement and the
other Loan Documents remain unchanged, and (b) all of the terms and conditions
of the Credit Agreement, as amended hereby, and of the other Loan Documents are
hereby ratified and confirmed and remain in full force and effect. Nothing
herein shall be construed to be an amendment or a waiver of any requirements of
the Borrower or of any other Person under the Credit Agreement or any of the
other Loan Documents except as expressly set forth herein.
Section 8. EXECUTION IN COUNTERPARTS. This Amendment may be executed in
any number of counterparts and by each party on a separate counterpart, each of
which when so executed and delivered shall be an original, but all of which
together shall constitute one instrument. In proving this Amendment, it shall
not be necessary to produce or account for more than one such counterpart
signed by the party against whom enforcement is sought.
Section 9. MISCELLANEOUS. This Amendment shall be deemed to be a contract
under seal under the laws of The Commonwealth of Massachusetts and shall for
all purposes be construed in accordance with and governed by the laws of The
Commonwealth of Massachusetts. The captions in this Amendment are for
convenience of reference only and shall not define or limit the provisions
hereof. The Borrower agrees to pay to the Managing Agent, on demand by the
Managing Agent, all reasonable out-of-pocket costs and expenses incurred or
sustained by the Managing Agent in connection with the preparation of this
Amendment, including reasonable legal fees.
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IN WITNESS WHEREOF, the parties have executed this Amendment as of the
date first above written.
BANKBOSTON, N.A.,
INDIVIDUALLY AND AS MANAGING AGENT
By:__________________________________
Title:
FIRST UNION NATIONAL BANK,
INDIVIDUALLY AND AS DOCUMENTATION AGENT
By:__________________________________
Title:
TORONTO DOMINION (TEXAS), INC.,
INDIVIDUALLY
By:__________________________________
Title:
THE TORONTO-DOMINION BANK,
AS DOCUMENTATION AGENT
By:__________________________________
Title:
FLEET BANK, N.A.,
INDIVIDUALLY AND AS CO-AGENT
By:__________________________________
Title:
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UNION BANK OF CALIFORNIA, N.A.,
INDIVIDUALLY AND AS CO-AGENT
By:__________________________________
Title:
KEY CORPORATE CAPITAL INC.,
INDIVIDUALLY AND AS CO-AGENT
By:__________________________________
Title:
THE BANK OF NEW YORK,
INDIVIDUALLY AND AS CO-AGENT
By:__________________________________
Title:
MELLON BANK,
INDIVIDUALLY AND AS CO-AGENT
By:__________________________________
Title:
BARCLAYS BANK PLC,
INDIVIDUALLY AND AS CO-AGENT
By:__________________________________
Title:
BANK OF AMERICA,
INDIVIDUALLY
By:__________________________________
Title:
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XXXX XXX, XXXXXXX, X.X.,
INDIVIDUALLY
By:__________________________________
Title:
BANK OF MONTREAL,
INDIVIDUALLY
By:__________________________________
Title:
COMPAGNIE FINANCIERE DE CIC ET DE
L'UNION EUROPEENNE,
INDIVIDUALLY
By:__________________________________
Title:
By:__________________________________
Title:
XXXXXX COMMERCIAL PAPER INC.,
INDIVIDUALLY
By:__________________________________
Title:
SOCIETE GENERALE,
INDIVIDUALLY
By:__________________________________
Title:
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SUNTRUST BANK, CENTRAL
FLORIDA, N.A.,
INDIVIDUALLY
By:__________________________________
Title:
BANQUE NATIONALE DE PARIS,
INDIVIDUALLY
By:__________________________________
Title:
By:__________________________________
Title:
BANQUE PARIBAS,
INDIVIDUALLY
By:__________________________________
Title:
By:__________________________________
Title:
MERCANTILE BANK NATIONAL ASSOCIATION,
INDIVIDUALLY
By:__________________________________
Title:
NATIONAL CITY BANK OF INDIANA,
INDIVIDUALLY
By:__________________________________
Title:
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COOPERATIEVE CENTRALE
RAIFFEISEN-BOERENLEENBANK
B.A., "RABOBANK NEDERLAND", NEW
YORK BRANCH,
INDIVIDUALLY
By:__________________________________
Title:
By:__________________________________
Title:
ACCEPTED
EMMIS BROADCASTING CORPORATION
By:
Title:
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Each of the undersigned Subsidiaries of the Borrower hereby (a) acknowledges
the foregoing Amendment and (b) ratifies and confirms all of its obligations
under the Guaranty and under each of the other Loan Documents to which it is a
party.
EMMIS FM BROADCASTING CORPORATION OF
INDIANAPOLIS
EMMIS FM BROADCASTING CORPORATION OF
CHICAGO
EMMIS FM BROADCASTING CORPORATION OF
ST. LOUIS
KPWR, INC.
EMMIS PUBLISHING CORPORATION
EMMIS BROADCASTING CORPORATION OF NEW
YORK
EMMIS MEADOWLANDS CORPORATION
EMMIS FM RADIO CORPORATION OF
INDIANAPOLIS
EMMIS AM RADIO CORPORATION OF
INDIANAPOLIS
EMMIS HOLDING CORPORATION OF NEW YORK
EMMIS RADIO CORPORATION OF NEW YORK
EMMIS 104.1 FM RADIO CORPORATION OF ST.
LOUIS
EMMIS 106.5 FM BROADCASTING CORPORATION
OF ST. LOUIS
EMMIS INTERNATIONAL BROADCASTING
CORPORATION
EMMIS DAR, INC.
EMMIS INTERNATIONAL CORPORATION
EMMIS 105.7 FM RADIO CORPORATION
OF INDIANAPOLIS
EMMIS 1310 AM RADIO CORPORATION
OF INDIANAPOLIS
MEDIATEX COMMUNICATIONS CORPORATION
TEXAS MONTHLY, INC.
MEDIATEX DEVELOPMENT CORPORATION
EMMIS INDIANA RADIO, L.P.
EMMIS PUBLISHING, L.P.
By:
Title: Executive Vice President
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EMMIS FM LICENSE CORPORATION OF
INDIANAPOLIS
EMMIS FM LICENSE CORPORATION OF CHICAGO
EMMIS LICENSE CORPORATION OF NEW YORK
EMMIS FM LICENSE CORPORATION OF ST. LOUIS
KPWR LICENSE, INC.
EMMIS FM RADIO LICENSE CORPORATION OF
INDIANAPOLIS
EMMIS AM RADIO LICENSE CORPORATION OF
INDIANAPOLIS
EMMIS RADIO LICENSE CORPORATION OF NEW
YORK
EMMIS 104.1 FM RADIO LICENSE CORPORATION
OF ST. LOUIS
EMMIS 106.5 FM LICENSE CORPORATION OF
ST. LOUIS
EMMIS 105.7 FM RADIO LICENSE CORPORATION
OF INDIANAPOLIS
EMMIS 1310 AM RADIO LICENSE CORPORATION
OF INDIANAPOLIS
EMMIS LICENSE CORPORATION
By:
Title: President
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SECOND AMENDMENT TO
AMENDED AND RESTATED
REVOLVING CREDIT AND TERM LOAN AGREEMENT
This SECOND AMENDMENT, dated as of March 20, 1998 (this "Amendment"), by
and among (a) Emmis Broadcasting Corporation, an Indiana corporation (the
"Borrower"), (b) BankBoston, N.A., Toronto Dominion (Texas), Inc., First Union
National Bank, Fleet Bank, N.A., Union Bank of California, N.A., The Bank of
New York, Mellon Bank, Barclays Bank PLC, Bank of America, Bank One, Indiana,
N.A., Bank of Montreal, Compagnie Financiere de CIC et de l'Union Europeenne,
Xxxxxx Commercial Paper Inc., Cooperatieve Centrale Raiffeisen-Boerenleenbank
B.A., "Rabobank Nederland", New York Branch, SunTrust Bank, Central Florida,
N.A., Banque Nationale de Paris, Banque Paribas, Mercantile Bank National
Association, National City Bank of Indiana, Societe Generale, Toronto Dominion
(Texas), Inc., and Key Corporate Capital Inc. (collectively, the "Banks"), (c)
BankBoston, N.A., as managing agent for each of the Banks (in such capacity,
the "Managing Agent"), and (d) The Toronto-Dominion Bank and First Union
National Bank as documentation agents, and Fleet Bank, N.A., Union Bank of
California, N.A., Key Corporate Capital Inc., The Bank of New York, Mellon Bank
and Barclays Bank PLC as co-agents (collectively, together with the Managing
Agent, the "Agents").
WHEREAS, the Borrower, the Banks and the Agents are parties to that
certain Amended and Restated Revolving Credit and Term Loan Agreement, dated as
of July 1, 1997, (as amended by that First Amendment dated as of February 6,
1998, the "Credit Agreement"); and
WHEREAS, the Borrower has requested and the Banks have agreed, subject to
the terms and conditions set forth herein, to modify certain provisions of the
Credit Agreement;
NOW, THEREFORE, the Borrower, the Banks and the Agents hereby covenant and
agree as follows:
Section 1. DEFINED TERMS. Capitalized terms which are used herein without
definition and which are defined in the Credit Agreement shall have the same
meanings herein as in the Credit Agreement.
Section 2. AMENDMENT TO THE CREDIT AGREEMENT. Section 8.17 of the Credit
Agreement is hereby amended and restated in its entirety to read as follows:
"8.17 Use of Proceeds; Regulations U and X. The proceeds of the
Tranche A Loans shall be used for the purpose of (a) working capital and
general corporate purposes and (b) funding Permitted Acquisitions
including, without limitation, the WQCD Acquisition and the WTLC
Acquisition. The proceeds of the Tranche B Term
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Loan shall be used to fund the Refinancing Obligations and the transaction
costs incurred in connection therewith. The proceeds of the Tranche C
Loans and the Tranche C Term Loan shall be used for the purpose of (a)
funding or refinancing the purchase price paid for the acquisition of the
New TMI Subsidiaries pursuant to that certain Stock Purchase Agreement
among the Borrower, Xxxxxxx X. Xxxx, Dow Xxxxx & Company, Inc. and Xxxxxxx
Xxxxxx, a copy of which is attached as Exhibit A to the First Amendment to
the Credit Agreement, (b) funding Permitted Acquisitions and (c) funding
up to $25,000,000 in the aggregate for deposits in connection with bids
made by the Borrower for the acquisition of broadcast properties,
provided, that, (x) to the extent that such amounts are returned to the
Borrower, the Borrower shall repay the outstanding Tranche C Loans in the
amount of such returned deposits and (y) the use of Tranche C Loans for
such purpose shall not be deemed to constitute consent by the Banks and
the Managing Agent to the acquisition for which such deposits will be
used. No portion of any Loan is to be used for the purpose of purchasing
or carrying any "margin security" or "margin stock" as such terms are used
in Regulations U and X of the Board of Governors of the Federal Reserve
System, 12 C.F.R. Parts 221 and 224. No portion of any Loan is to be
used, and no portion of any Letter of Credit is to be obtained, for an
investment in any Subsidiary of the Borrower which is not a party to a
Guaranty."
Section 3. CONSENT. The Banks and the Managing Agent hereby consent to a
waiver of Section 4.7(a) of the Option Agreement to permit the WQCD Acquisition
to close after the grant by the FCC of the renewal of the FCC License for
WQCD-FM but prior to the date on which such grant becomes a Final Action (as
defined in the Option Agreement); provided that no petition or appeal is then
pending before the FCC which objects to such renewal.
Section 4. CONDITIONS TO EFFECTIVENESS. This Amendment shall become
effective upon the execution and delivery by the Borrower, the Managing Agent
and the Majority Banks of this Amendment.
Section 5. AFFIRMATION OF THE BORROWER. The Borrower hereby affirms all
of its Obligations under the Credit Agreement and under each of the other Loan
Documents to which it is a party and hereby affirms its absolute and
unconditional promise to pay to the Banks the Loans and all other amounts due
under the Credit Agreement and the other Loan Documents. The Borrower hereby
represents, warrants and confirms that the Obligations are and remain secured
pursuant to the Security Documents.
Section 6. REPRESENTATIONS AND WARRANTIES. The Borrower hereby represents
and warrants to the Banks and the Managing Agent as follows:
(a) Representations and Warranties. Each of the representations and
warranties contained in Section 8 of the Credit Agreement were true and correct
in all material respects when made, and, after giving effect to this Amendment,
are true and correct on and as of the date hereof, except to the extent that
such representations and warranties relate specifically to a prior date.
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(b) Enforceability. The execution and delivery by the Borrower of this
Amendment, and the performance by the Borrower of this Amendment and the Credit
Agreement, as amended hereby, are within the corporate authority of the
Borrower and have been duly authorized by all necessary corporate proceedings.
This Amendment and the Credit Agreement, as amended hereby, constitute valid
and legally binding obligations of the Borrower, enforceable against it in
accordance with their terms, except as limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws relating to or affecting the
enforcement of creditors' rights in general.
(c) No Default. No Default or Event of Default has occurred and is
continuing, and no Default or Event of Default will result from the execution,
delivery and performance by the Borrower of this Amendment.
Section 7. NO OTHER AMENDMENTS, ETC. Except as expressly provided in this
Amendment, (a) all of the terms and conditions of the Credit Agreement and the
other Loan Documents remain unchanged, and (b) all of the terms and conditions
of the Credit Agreement, as amended hereby, and of the other Loan Documents are
hereby ratified and confirmed and remain in full force and effect. Nothing
herein shall be construed to be an amendment or a waiver of any requirements of
the Borrower or of any other Person under the Credit Agreement or any of the
other Loan Documents except as expressly set forth herein.
Section 8. EXECUTION IN COUNTERPARTS. This Amendment may be executed in
any number of counterparts and by each party on a separate counterpart, each of
which when so executed and delivered shall be an original, but all of which
together shall constitute one instrument. In proving this Amendment, it shall
not be necessary to produce or account for more than one such counterpart
signed by the party against whom enforcement is sought.
Section 9. MISCELLANEOUS. This Amendment shall be deemed to be a contract
under seal under the laws of The Commonwealth of Massachusetts and shall for
all purposes be construed in accordance with and governed by the laws of The
Commonwealth of Massachusetts. The captions in this Amendment are for
convenience of reference only and shall not define or limit the provisions
hereof. The Borrower agrees to pay to the Managing Agent, on demand by the
Managing Agent, all reasonable out-of-pocket costs and expenses incurred or
sustained by the Managing Agent in connection with the preparation of this
Amendment, including reasonable legal fees.
17
-4-
IN WITNESS WHEREOF, the parties have executed this Amendment as of the
date first above written.
BANKBOSTON, N.A.,
INDIVIDUALLY AND AS MANAGING AGENT
By:__________________________________
Title:
FIRST UNION NATIONAL BANK,
INDIVIDUALLY AND AS DOCUMENTATION AGENT
By:__________________________________
Title:
TORONTO DOMINION (TEXAS), INC.,
INDIVIDUALLY
By:__________________________________
Title:
THE TORONTO-DOMINION BANK,
AS DOCUMENTATION AGENT
By:__________________________________
Title:
FLEET BANK, N.A.,
INDIVIDUALLY AND AS CO-AGENT
By:__________________________________
Title:
00
-0-
XXXXX XXXX OF CALIFORNIA, N.A.,
INDIVIDUALLY AND AS CO-AGENT
By:__________________________________
Title:
KEY CORPORATE CAPITAL INC.,
INDIVIDUALLY AND AS CO-AGENT
By:__________________________________
Title:
THE BANK OF NEW YORK,
INDIVIDUALLY AND AS CO-AGENT
By:__________________________________
Title:
MELLON BANK,
INDIVIDUALLY AND AS CO-AGENT
By:__________________________________
Title:
BARCLAYS BANK PLC,
INDIVIDUALLY AND AS CO-AGENT
By:__________________________________
Title:
BANK OF AMERICA,
INDIVIDUALLY
By:__________________________________
Title:
00
-0-
XXXX XXX, XXXXXXX, X.X.,
INDIVIDUALLY
By:__________________________________
Title:
BANK OF MONTREAL,
INDIVIDUALLY
By:__________________________________
Title:
COMPAGNIE FINANCIERE DE CIC ET DE
L'UNION EUROPEENNE,
INDIVIDUALLY
By:__________________________________
Title:
By:__________________________________
Title:
XXXXXX COMMERCIAL PAPER INC.,
INDIVIDUALLY
By:__________________________________
Title:
SOCIETE GENERALE,
INDIVIDUALLY
By:__________________________________
Title:
20
-7-
SUNTRUST BANK, CENTRAL
FLORIDA, N.A.,
INDIVIDUALLY
By:__________________________________
Title:
BANQUE NATIONALE DE PARIS,
INDIVIDUALLY
By:__________________________________
Title:
By:__________________________________
Title:
BANQUE PARIBAS,
INDIVIDUALLY
By:__________________________________
Title:
By:__________________________________
Title:
MERCANTILE BANK NATIONAL ASSOCIATION,
INDIVIDUALLY
By:__________________________________
Title:
NATIONAL CITY BANK OF INDIANA,
INDIVIDUALLY
By:__________________________________
Title:
00
-0-
XXXXXXXXXXXX XXXXXXXX
RAIFFEISEN-BOERENLEENBANK
B.A., "RABOBANK NEDERLAND", NEW
YORK BRANCH,
INDIVIDUALLY
By:__________________________________
Title:
By:__________________________________
Title:
ACCEPTED
EMMIS BROADCASTING CORPORATION
By:________________________________
Title:
22
-9-
Each of the undersigned Subsidiaries of the Borrower hereby (a) acknowledges
the foregoing Amendment and (b) ratifies and confirms all of its obligations
under the Guaranty and under each of the other Loan Documents to which it is a
party.
EMMIS FM BROADCASTING CORPORATION OF
INDIANAPOLIS
EMMIS FM BROADCASTING CORPORATION OF
CHICAGO
EMMIS FM BROADCASTING CORPORATION OF
ST. LOUIS
KPWR, INC.
EMMIS PUBLISHING CORPORATION
EMMIS BROADCASTING CORPORATION OF NEW
YORK
EMMIS MEADOWLANDS CORPORATION
EMMIS FM RADIO CORPORATION OF
INDIANAPOLIS
EMMIS AM RADIO CORPORATION OF
INDIANAPOLIS
EMMIS HOLDING CORPORATION OF NEW YORK
EMMIS 104.1 FM RADIO CORPORATION OF ST.
LOUIS
EMMIS 106.5 FM BROADCASTING CORPORATION
OF ST. LOUIS
EMMIS INTERNATIONAL BROADCASTING
CORPORATION
EMMIS DAR, INC.
EMMIS INTERNATIONAL CORPORATION
EMMIS 105.7 FM RADIO CORPORATION
OF INDIANAPOLIS
EMMIS 1310 AM RADIO CORPORATION
OF INDIANAPOLIS
MEDIATEX COMMUNICATIONS CORPORATION
TEXAS MONTHLY, INC.
MEDIATEX DEVELOPMENT CORPORATION
EMMIS INDIANA RADIO, L.P.
EMMIS PUBLISHING, L.P.
By:_____________________________
Title: Executive Vice President
23
-10-
EMMIS FM LICENSE CORPORATION OF
INDIANAPOLIS
EMMIS FM LICENSE CORPORATION OF CHICAGO
EMMIS LICENSE CORPORATION OF NEW YORK
EMMIS FM LICENSE CORPORATION OF ST. LOUIS
KPWR LICENSE, INC.
EMMIS FM RADIO LICENSE CORPORATION OF
INDIANAPOLIS
EMMIS AM RADIO LICENSE CORPORATION OF
INDIANAPOLIS
EMMIS RADIO LICENSE CORPORATION OF NEW
YORK
EMMIS 104.1 FM RADIO LICENSE CORPORATION
OF ST. LOUIS
EMMIS 106.5 FM LICENSE CORPORATION OF
ST. LOUIS
EMMIS 105.7 FM RADIO LICENSE CORPORATION
OF INDIANAPOLIS
EMMIS 1310 AM RADIO LICENSE CORPORATION
OF INDIANAPOLIS
EMMIS LICENSE CORPORATION
By:____________________________________
Title: President
24
THIRD AMENDMENT TO
AMENDED AND RESTATED
REVOLVING CREDIT AND TERM LOAN AGREEMENT
This THIRD AMENDMENT, dated as of March 27, 1998 (this "Amendment"), by
and among (a) Emmis Broadcasting Corporation, an Indiana corporation (the
"Borrower"), (b) BankBoston, N.A., Toronto Dominion (Texas), Inc., First Union
National Bank, Fleet Bank, N.A., Union Bank of California, N.A., The Bank of
New York, Mellon Bank, Barclays Bank PLC, Bank of America, Bank One, Indiana,
N.A., Bank of Montreal, Compagnie Financiere de CIC et de l'Union Europeenne,
Xxxxxx Commercial Paper Inc., Cooperatieve Centrale Raiffeisen-Boerenleenbank
B.A., "Rabobank Nederland", New York Branch, SunTrust Bank, Central Florida,
N.A., Banque Nationale de Paris, Banque Paribas, Mercantile Bank National
Association, National City Bank of Indiana, Societe Generale, Toronto Dominion
(Texas), Inc., and Key Corporate Capital Inc. (collectively, the "Banks"), (c)
BankBoston, N.A., as managing agent for each of the Banks (in such capacity,
the "Managing Agent"), and (d) The Toronto-Dominion Bank and First Union
National Bank as documentation agents, and Fleet Bank, N.A., Union Bank of
California, N.A., Key Corporate Capital Inc., The Bank of New York, Mellon Bank
and Barclays Bank PLC as co-agents (collectively, together with the Managing
Agent, the "Agents").
WHEREAS, the Borrower, the Banks and the Agents are parties to that
certain Amended and Restated Revolving Credit and Term Loan Agreement, dated as
of July 1, 1997, (as amended by that First Amendment dated as of February 6,
1998 and that Second Amendment dated as of March 20, 1998, the "Credit
Agreement"); and
WHEREAS, the Borrower has requested and the Banks have agreed, subject to
the terms and conditions set forth herein, to modify certain provisions of the
Credit Agreement;
NOW, THEREFORE, the Borrower, the Banks and the Agents hereby covenant and
agree as follows:
Section 1. DEFINED TERMS. Capitalized terms which are used herein without
definition and which are defined in the Credit Agreement shall have the same
meanings herein as in the Credit Agreement.
Section 2. AMENDMENTS TO THE CREDIT AGREEMENT.
(a) Section 8.17 of the Credit Agreement as amended by that Second
Amendment dated as of March 20, 1998, is hereby amended by deleting the amount
"$25,000,000" in the twelfth line of such section and substituting
"$34,000,000" therefor.
25
-2-
(b) Section 11.2 of the Credit Agreement is hereby amended and restated in
its entirety to read as follows:
"11.2 Total Leverage Ratio. The Borrower will not permit the Total
Leverage Ratio, determined as at the last day of any fiscal quarter ending on
any date or during any period described in the table set forth below, to exceed
the ratio set forth opposite such date or period in such table:
Period Ratio
----------------------- ----------
Closing Date to 2/27/98 7.00:1.00
2/28/98 6.50:1.00
3/1/98 to 8/31/98 7.00:1.00
9/1/98 to 2/27/99 6.50:1.00
2/28/99 to 2/28/00 6.00:1.00
2/29/00 to 2/27/01 5.50:1.00
2/28/01 to 2/27/02 5.00:1.00
2/28/02 and thereafter 4.50:1.00"
Section 3. CONDITIONS TO EFFECTIVENESS. This Amendment shall become
effective upon the execution and delivery by the Borrower, the Managing Agent
and the Majority Banks of this Amendment.
Section 4. AFFIRMATION OF THE BORROWER. The Borrower hereby affirms all
of its Obligations under the Credit Agreement and under each of the other Loan
Documents to which it is a party and hereby affirms its absolute and
unconditional promise to pay to the Banks the Loans and all other amounts due
under the Credit Agreement and the other Loan Documents. The Borrower hereby
represents, warrants and confirms that the Obligations are and remain secured
pursuant to the Security Documents.
Section 5. REPRESENTATIONS AND WARRANTIES. The Borrower hereby represents
and warrants to the Banks and the Managing Agent as follows:
(a) Representations and Warranties. Each of the representations and
warranties contained in Section 8 of the Credit Agreement were true and correct
in all material respects when made, and, after giving effect to this Amendment,
are true and correct on and as of the date hereof, except to the extent that
such representations and warranties relate specifically to a prior date.
(b) Enforceability. The execution and delivery by the Borrower of this
Amendment, and the performance by the Borrower of this Amendment and the Credit
Agreement, as amended hereby, are within the corporate authority of the
Borrower and have been duly authorized by all necessary corporate proceedings.
This Amendment and the Credit Agreement, as amended hereby, constitute valid
and legally binding obligations of the Borrower, enforceable against it in
accordance with their terms, except as limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws relating to or affecting the
enforcement of creditors' rights in general.
26
-3-
(c) No Default. No Default or Event of Default has occurred and is
continuing, and no Default or Event of Default will result from the execution,
delivery and performance by the Borrower of this Amendment.
Section 6. NO OTHER AMENDMENTS, ETC. Except as expressly provided in this
Amendment, (a) all of the terms and conditions of the Credit Agreement and the
other Loan Documents remain unchanged, and (b) all of the terms and conditions
of the Credit Agreement, as amended hereby, and of the other Loan Documents are
hereby ratified and confirmed and remain in full force and effect. Nothing
herein shall be construed to be an amendment or a waiver of any requirements of
the Borrower or of any other Person under the Credit Agreement or any of the
other Loan Documents except as expressly set forth herein.
Section 7. EXECUTION IN COUNTERPARTS. This Amendment may be executed in
any number of counterparts and by each party on a separate counterpart, each of
which when so executed and delivered shall be an original, but all of which
together shall constitute one instrument. In proving this Amendment, it shall
not be necessary to produce or account for more than one such counterpart
signed by the party against whom enforcement is sought.
Section 8. MISCELLANEOUS. This Amendment shall be deemed to be a contract
under seal under the laws of The Commonwealth of Massachusetts and shall for
all purposes be construed in accordance with and governed by the laws of The
Commonwealth of Massachusetts. The captions in this Amendment are for
convenience of reference only and shall not define or limit the provisions
hereof. The Borrower agrees to pay to the Managing Agent, on demand by the
Managing Agent, all reasonable out-of-pocket costs and expenses incurred or
sustained by the Managing Agent in connection with the preparation of this
Amendment, including reasonable legal fees.
27
-4-
IN WITNESS WHEREOF, the parties have executed this Amendment as of the
date first above written.
BANKBOSTON, N.A.,
INDIVIDUALLY AND AS MANAGING AGENT
By:__________________________________
Title:
FIRST UNION NATIONAL BANK,
INDIVIDUALLY AND AS DOCUMENTATION AGENT
By:__________________________________
Title:
TORONTO DOMINION (TEXAS), INC.,
INDIVIDUALLY
By:__________________________________
Title:
THE TORONTO-DOMINION BANK,
AS DOCUMENTATION AGENT
By:__________________________________
Title:
FLEET BANK, N.A.,
INDIVIDUALLY AND AS CO-AGENT
By:__________________________________
Title:
00
-0-
XXXXX XXXX OF CALIFORNIA, N.A.,
INDIVIDUALLY AND AS CO-AGENT
By:__________________________________
Title:
KEY CORPORATE CAPITAL INC.,
INDIVIDUALLY AND AS CO-AGENT
By:__________________________________
Title:
THE BANK OF NEW YORK,
INDIVIDUALLY AND AS CO-AGENT
By:__________________________________
Title:
MELLON BANK,
INDIVIDUALLY AND AS CO-AGENT
By:__________________________________
Title:
BARCLAYS BANK PLC,
INDIVIDUALLY AND AS CO-AGENT
By:__________________________________
Title:
BANK OF AMERICA,
INDIVIDUALLY
By:__________________________________
Title:
00
-0-
XXXX XXX, XXXXXXX, X.X.,
INDIVIDUALLY
By:__________________________________
Title:
BANK OF MONTREAL,
INDIVIDUALLY
By:__________________________________
Title:
COMPAGNIE FINANCIERE DE CIC ET DE
L'UNION EUROPEENNE,
INDIVIDUALLY
By:__________________________________
Title:
By:__________________________________
Title:
XXXXXX COMMERCIAL PAPER INC.,
INDIVIDUALLY
By:__________________________________
Title:
SOCIETE GENERALE,
INDIVIDUALLY
By:__________________________________
Title:
30
-7-
SUNTRUST BANK, CENTRAL
FLORIDA, N.A.,
INDIVIDUALLY
By:__________________________________
Title:
BANQUE NATIONALE DE PARIS,
INDIVIDUALLY
By:__________________________________
Title:
By:__________________________________
Title:
BANQUE PARIBAS,
INDIVIDUALLY
By:__________________________________
Title:
By:__________________________________
Title:
MERCANTILE BANK NATIONAL
ASSOCIATION,
INDIVIDUALLY
By:__________________________________
Title:
NATIONAL CITY BANK OF INDIANA,
INDIVIDUALLY
By:__________________________________
Title:
00
-0-
XXXXXXXXXXXX XXXXXXXX
RAIFFEISEN-BOERENLEENBANK
B.A., "RABOBANK NEDERLAND", NEW
YORK BRANCH,
INDIVIDUALLY
By:__________________________________
Title:
By:__________________________________
Title:
ACCEPTED
EMMIS BROADCASTING CORPORATION
By:__________________________
Title:
32
-9-
Each of the undersigned Subsidiaries of the Borrower hereby (a) acknowledges
the foregoing Amendment and (b) ratifies and confirms all of its obligations
under the Guaranty and under each of the other Loan Documents to which it is a
party.
EMMIS FM BROADCASTING CORPORATION OF
INDIANAPOLIS
EMMIS FM BROADCASTING CORPORATION OF
CHICAGO
EMMIS FM BROADCASTING CORPORATION OF
ST. LOUIS
KPWR, INC.
EMMIS PUBLISHING CORPORATION
EMMIS BROADCASTING CORPORATION OF NEW
YORK
EMMIS MEADOWLANDS CORPORATION
EMMIS FM RADIO CORPORATION OF
INDIANAPOLIS
EMMIS AM RADIO CORPORATION OF
INDIANAPOLIS
EMMIS HOLDING CORPORATION OF NEW YORK
EMMIS 104.1 FM RADIO CORPORATION OF ST.
LOUIS
EMMIS 106.5 FM BROADCASTING CORPORATION
OF ST. LOUIS
EMMIS INTERNATIONAL BROADCASTING
CORPORATION
EMMIS DAR, INC.
EMMIS INTERNATIONAL CORPORATION
EMMIS 105.7 FM RADIO CORPORATION
OF INDIANAPOLIS
EMMIS 1310 AM RADIO CORPORATION
OF INDIANAPOLIS
MEDIATEX COMMUNICATIONS CORPORATION
TEXAS MONTHLY, INC.
MEDIATEX DEVELOPMENT CORPORATION
EMMIS INDIANA RADIO, L.P.
EMMIS PUBLISHING, L.P.
By:_____________________________
Title: Executive Vice President
33
-10-
EMMIS FM LICENSE CORPORATION OF
INDIANAPOLIS
EMMIS FM LICENSE CORPORATION OF CHICAGO
EMMIS LICENSE CORPORATION OF NEW YORK
EMMIS FM LICENSE CORPORATION OF ST. LOUIS
KPWR LICENSE, INC.
EMMIS FM RADIO LICENSE CORPORATION OF
INDIANAPOLIS
EMMIS AM RADIO LICENSE CORPORATION OF
INDIANAPOLIS
EMMIS RADIO LICENSE CORPORATION OF NEW
YORK
EMMIS 104.1 FM RADIO LICENSE CORPORATION
OF ST. LOUIS
EMMIS 106.5 FM LICENSE CORPORATION OF
ST. LOUIS
EMMIS 105.7 FM RADIO LICENSE CORPORATION
OF INDIANAPOLIS
EMMIS 1310 AM RADIO LICENSE CORPORATION
OF INDIANAPOLIS
EMMIS LICENSE CORPORATION
By:____________________________________
Title: President
34
WAIVER OF
AMENDED AND RESTATED
REVOLVING CREDIT AND TERM LOAN AGREEMENT
This WAIVER, dated as of October 10, 1997 (this "Amendment"), by and among
(a) Emmis Broadcasting Corporation, an Indiana corporation (the "Borrower"),
(b) BankBoston, N.A., Toronto Dominion (Texas), Inc., First Union National
Bank, Fleet Bank, N.A., Union Bank of California, N.A., The Bank of New York,
Mellon Bank, Barclays Bank PLC, Bank of America, Bank One, Indiana, N.A., Bank
of Montreal, Compagnie Financiere de CIC et de l'Union Europeenne, Xxxxxx
Commercial Paper Inc., Cooperatieve Centrale Raiffeisen-Boerenleenbank B.A.,
"Rabobank Nederland", New York Branch, SunTrust Bank, Central Florida, N.A.,
Banque Nationale de Paris, Banque Paribas, Mercantile Bank National
Association, National City Bank of Indiana, Societe Generale, Toronto Dominion
(Texas), Inc., and Key Corporate Capital Inc. (collectively, the "Banks"), (c)
BankBoston, N.A., as managing agent for each of the Banks (in such capacity,
the "Managing Agent"), and (d) The Toronto-Dominion Bank and First Union
National Bank as documentation agents, and Fleet Bank, N.A., Union Bank of
California, N.A., Key Corporate Capital Inc., The Bank of New York, Mellon Bank
and Barclays Bank PLC as co-agents (collectively, together with the Managing
Agent, the "Agents").
WHEREAS, the Borrower, the Banks and the Agents are parties to that
certain Amended and Restated Revolving Credit and Term Loan Agreement, dated as
of July 1, 1997, as amended (as amended and in effect, the "Credit Agreement");
and
WHEREAS, the Borrower has requested and the Banks have agreed, subject to
the terms and conditions set forth herein, to waive certain provisions of the
Credit Agreement;
NOW, THEREFORE, the Borrower, the Banks and the Agents hereby covenant and
agree as follows:
Section 1. DEFINED TERMS. Capitalized terms which are used herein without
definition and which are defined in the Credit Agreement shall have the same
meanings herein as in the Credit Agreement.
Section 2. WAIVERS.
(a) The Banks and the Managing Agent hereby waive the provisions of
Section 10.3(m) of the Credit Agreement solely to the extent necessary to
permit Emmis International Corporation to make an Investment in the shares of
Radio Hungaria Co. Ltd., a company organized under the laws of Hungary ("Radio
Hungaria"), without the requirement that Radio Hungaria grant a security
interest in its assets and properties to the Managing Agent; provided
35
-2-
that, Emmis International Corporation shall grant a security interest in such
shares of Radio Hungaria to be acquired by it to the Managing Agent under the
Subsidiary Pledge Agreement.
(b) The Banks and the Managing Agent hereby waive the provisions of
Section 10.5(e) of the Credit Agreement solely to the extent necessary to
permit the disposition by Emmis 1380 Radio License Corporation of St. Louis and
Emmis 1380 Radio Corporation of St. Louis of the Station WKBQ(AM) by the
donation of such Station to a not-for-profit organization.
Section 3. CONDITIONS TO EFFECTIVENESS. This Waiver shall become
effective upon the execution and delivery by the Borrower, the Managing Agent
and the Banks of this Waiver.
Section 4. AFFIRMATION OF THE BORROWER. The Borrower hereby affirms all
of its Obligations under the Credit Agreement and under each of the other Loan
Documents to which it is a party and hereby affirms its absolute and
unconditional promise to pay to the Banks the Loans and all other amounts due
under the Credit Agreement and the other Loan Documents. The Borrower hereby
represents, warrants and confirms that the Obligations are and remain secured
pursuant to the Security Documents.
Section 5. REPRESENTATIONS AND WARRANTIES. The Borrower hereby represents
and warrants to the Banks and the Managing Agent as follows:
(a) Representations and Warranties. Each of the representations and
warranties contained in Section 8 of the Credit Agreement were true and correct
in all material respects when made, and, after giving effect to this Waiver,
are true and correct on and as of the date hereof, except to the extent that
such representations and warranties relate specifically to a prior date.
(b) Enforceability. The execution, delivery and performance by the
Borrower of this Waiver are within the corporate authority of the Borrower and
have been duly authorized by all necessary corporate proceedings. This Waiver
constitutes valid and legally binding obligations of the Borrower, enforceable
against it in accordance with their terms, except as limited by bankruptcy,
insolvency, reorganization, moratorium or similar laws relating to or affecting
the enforcement of creditors' rights in general.
(c) No Default. No Default or Event of Default has occurred and is
continuing, and no Default or Event of Default will result from the execution,
delivery and performance by the Borrower of this Waiver.
Section 6. NO OTHER AMENDMENTS, ETC. Except as expressly provided in this
Waiver, (a) all of the terms and conditions of the Credit Agreement and the
other Loan Documents remain unchanged, and (b) all of the terms and conditions
of the Credit Agreement, as amended hereby, and of the other Loan Documents are
hereby ratified and confirmed and remain in full force and effect. Nothing
herein shall be construed to be an amendment or a waiver of any requirements of
the Borrower or of any other Person under the Credit Agreement or any of the
other Loan Documents except as expressly set forth herein.
36
-3-
Section 7. EXECUTION IN COUNTERPARTS. This Waiver may be executed in any
number of counterparts and by each party on a separate counterpart, each of
which when so executed and delivered shall be an original, but all of which
together shall constitute one instrument. In proving this Waiver, it shall not
be necessary to produce or account for more than one such counterpart signed by
the party against whom enforcement is sought.
Section 8. MISCELLANEOUS. This Waiver shall be deemed to be a contract
under seal under the laws of The Commonwealth of Massachusetts and shall for
all purposes be construed in accordance with and governed by the laws of The
Commonwealth of Massachusetts. The captions in this Waiver are for convenience
of reference only and shall not define or limit the provisions hereof. The
Borrower agrees to pay to the Managing Agent, on demand by the Managing Agent,
all reasonable out-of-pocket costs and expenses incurred or sustained by the
Managing Agent in connection with the preparation of this Waiver, including
reasonable legal fees.
37
-4-
IN WITNESS WHEREOF, the parties have executed this Waiver as of the date
first above written.
BANKBOSTON, N.A.,
INDIVIDUALLY AND AS MANAGING AGENT
By:__________________________________
Title:
FIRST UNION NATIONAL BANK,
INDIVIDUALLY AND AS DOCUMENTATION AGENT
By:__________________________________
Title:
TORONTO DOMINION (TEXAS), INC.,
INDIVIDUALLY
By:__________________________________
Title:
THE TORONTO-DOMINION BANK,
AS DOCUMENTATION AGENT
By:__________________________________
Title:
FLEET BANK, N.A.,
INDIVIDUALLY AND AS CO-AGENT
By:__________________________________
Title:
00
-0-
XXXXX XXXX OF CALIFORNIA, N.A.,
INDIVIDUALLY AND AS CO-AGENT
By:__________________________________
Title:
KEY CORPORATE CAPITAL INC.,
INDIVIDUALLY AND AS CO-AGENT
By:__________________________________
Title:
THE BANK OF NEW YORK,
INDIVIDUALLY AND AS CO-AGENT
By:__________________________________
Title:
MELLON BANK,
INDIVIDUALLY AND AS CO-AGENT
By:__________________________________
Title:
BARCLAYS BANK PLC,
INDIVIDUALLY AND AS CO-AGENT
By:__________________________________
Title:
BANK OF AMERICA,
INDIVIDUALLY
By:__________________________________
Title:
00
-0-
XXXX XXX, XXXXXXX, X.X.,
INDIVIDUALLY
By:__________________________________
Title:
BANK OF MONTREAL,
INDIVIDUALLY
By:__________________________________
Title:
COMPAGNIE FINANCIERE DE CIC ET DE
L'UNION EUROPEENNE,
INDIVIDUALLY
By:__________________________________
Title:
By:__________________________________
Title:
XXXXXX COMMERCIAL PAPER INC.,
INDIVIDUALLY
By:__________________________________
Title:
SOCIETE GENERALE,
INDIVIDUALLY
By:__________________________________
Title:
40
-7-
SUNTRUST BANK, CENTRAL
FLORIDA, N.A.,
INDIVIDUALLY
By:__________________________________
Title:
BANQUE NATIONALE DE PARIS,
INDIVIDUALLY
By:__________________________________
Title:
By:__________________________________
Title:
BANQUE PARIBAS,
INDIVIDUALLY
By:__________________________________
Title:
By:__________________________________
Title:
MERCANTILE BANK NATIONAL ASSOCIATION,
INDIVIDUALLY
By:__________________________________
Title:
NATIONAL CITY BANK OF INDIANA,
INDIVIDUALLY
By:__________________________________
Title:
00
-0-
XXXXXXXXXXXX XXXXXXXX
RAIFFEISEN-BOERENLEENBANK
B.A., "RABOBANK NEDERLAND", NEW
YORK BRANCH,
INDIVIDUALLY
By:__________________________________
Title:
By:__________________________________
Title:
ACCEPTED
EMMIS BROADCASTING CORPORATION
By:__________________________
Title:
42
-9-
Each of the undersigned Subsidiaries of the Borrower hereby (a) acknowledges
the foregoing Waiver and (b) ratifies and confirms all of its obligations under
the Guaranty and under each of the other Loan Documents to which it is a party.
EMMIS FM BROADCASTING CORPORATION OF
INDIANAPOLIS
EMMIS FM BROADCASTING CORPORATION OF
CHICAGO
EMMIS FM BROADCASTING CORPORATION OF
ST. LOUIS
KPWR, INC.
EMMIS PUBLISHING CORPORATION
EMMIS BROADCASTING CORPORATION OF NEW
YORK
EMMIS MEADOWLANDS CORPORATION
EMMIS FM LICENSE CORPORATION OF
INDIANAPOLIS
EMMIS FM LICENSE CORPORATION OF CHICAGO
EMMIS LICENSE CORPORATION OF NEW YORK
EMMIS FM LICENSE CORPORATION OF ST. LOUIS
KPWR LICENSE, INC.
EMMIS FM RADIO CORPORATION OF
INDIANAPOLIS
EMMIS AM RADIO CORPORATION OF
INDIANAPOLIS
EMMIS FM RADIO LICENSE CORPORATION OF
INDIANAPOLIS
EMMIS AM RADIO LICENSE CORPORATION OF
INDIANAPOLIS
EMMIS HOLDING CORPORATION OF NEW YORK
EMMIS RADIO CORPORATION OF NEW YORK
EMMIS RADIO LICENSE CORPORATION OF NEW
YORK
EMMIS 104.1 FM RADIO CORPORATION OF ST.
LOUIS
EMMIS 104.1 FM RADIO LICENSE CORPORATION
OF ST. LOUIS
EMMIS 106.5 FM BROADCASTING CORPORATION
OF ST. LOUIS
EMMIS INTERNATIONAL BROADCASTING
CORPORATION
EMMIS DAR, INC.
EMMIS 106.5 FM LICENSE CORPORATION OF ST.
LOUIS
EMMIS 1380 AM RADIO CORPORATION OF ST.
LOUIS
43
-10-
EMMIS 1380 AM RADIO LICENSE CORPORATION
OF ST. LOUIS
EMMIS INTERNATIONAL CORPORATION
By:_________________________________
Title:
