AMENDMENT NO. 5 TO CREDIT AGREEMENT
Exhibit 10.1
AMENDMENT NO. 5 TO CREDIT AGREEMENT
Amendment No. 5, dated as of April 29, 2011 (this “Fifth Amendment”), to the Credit
Agreement, dated as of June 7, 2006 (as amended, supplemented or otherwise modified prior to the
date hereof, the “Credit Agreement”), by and among CUMULUS MEDIA INC., a Delaware
corporation (the “Borrower”), the various subsidiaries of Borrower party hereto, the
several banks and other financial institutions parties thereto (the “Lenders”), and GENERAL
ELECTRIC CAPITAL CORPORATION as administrative agent for the Lenders thereunder (in such capacity,
the “Administrative Agent”).
W I T N E S S E T H:
WHEREAS, the Borrower desires to amend the Credit Agreement to provide for certain changes to
the Credit Agreement, and the parties signatory hereto are willing to agree to the requested
amendments on the terms and conditions contained herein;
NOW, THEREFORE, in consideration of the premises and further valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, the parties hereto agree as follows:
Defined Terms. Unless otherwise defined herein, capitalized terms that are defined in the
Credit Agreement are used herein as therein defined.
A. Amendments to Credit Agreement.
1. Amendments to Section 1.01 of the Credit Agreement.
(i) The following new definitions shall hereby be added to Section 1.01 of the Credit
Agreement in appropriate alphabetical order:
“Additional Lender” has the meaning assigned to such term in Section
2.19.
“Escrow Entity” means a special purpose escrow subsidiary of the
Borrower or a newly formed special purpose corporation (which may not be a
subsidiary of the Borrower) formed for the sole purpose of issuing debt securities,
the proceeds of which will be placed in escrow pursuant to a customary escrow
agreement that contemplates the release of such proceeds upon the earlier of (a) the
closing of the acquisition of Citadel Broadcasting Corporation to fund a portion of
the consideration in respect of such acquisition or (b) June 8, 2012 to fund a
special redemption of such debt securities at a redemption price of 100% of the
principal amount thereof, if redeemed during the first 90 days following the
issuance of such debt securities, or 101% of the principal amount thereof if
redeemed thereafter; provided that such Escrow Entity (a) shall have no Indebtedness
other than Non-Recourse Debt; (b) shall be a Person with respect to which neither
the Borrower nor any of its Subsidiaries has any direct or indirect obligation (x)
to subscribe for additional Equity Interests of such Person or (y) to
maintain or preserve such Person’s financial condition or to cause such Person
to achieve any specified levels of operating results; and (c) shall not guarantee or
otherwise provide credit support for any Indebtedness of the Borrower or any of its
Subsidiaries.
“Fifth Amendment” means the Amendment No. 5 to Credit Agreement dated
as of April 29, 2011 by and among the Borrower, the Administrative Agent and the
Lenders party thereto.
“Fifth Amendment Effective Date” means the date on which each of the
conditions set forth in Section B.1. of the Fifth Amendment have been satisfied or
waived.
“Non-Recourse Debt” means Indebtedness (a) no default with respect to
which would permit (upon notice, lapse of time or both) any holder of any other
Indebtedness of the Borrower or any of its Subsidiaries to declare a default on such
other Indebtedness or cause the payment thereof to be accelerated or payable prior
to its stated maturity and (b) as to which the lenders or holders thereof will not
have any recourse to the capital stock or assets of the Borrower or any of its
Subsidiaries.
“Permitted Refinancing” means, with respect to any Person, any
modification, refinancing, refunding, renewal or extension of any Indebtedness of
such Person; provided that (a) the principal amount (or accreted value, if
applicable) thereof does not exceed the principal amount (or accreted value, if
applicable) of the Indebtedness so modified, refinanced, refunded, renewed or
extended except by an amount equal to unpaid accrued interest and premium thereon
plus other reasonable amount paid, and fees and expenses reasonably incurred, in
connection with such modification, refinancing, refunding, renewal or extension and
by an amount equal to any existing commitments unutilized thereunder, (b) such
modification, refinancing, refunding, renewal or extension has a final maturity date
equal to or later than the final maturity date of, and has a weighted average life
to maturity equal to or greater than the weighted average life to maturity of, the
Indebtedness being modified, refinanced, refunded, renewed or extended, (c) if the
Indebtedness being modified, refinanced, refunded, renewed or extended is
subordinated in right of payment to the Obligations, such modification, refinancing,
refunding, renewal or extension is subordinated in right of payment to the
Obligations on terms at least as favorable to the Lenders as those contained in the
documentation governing the Indebtedness being modified, refinanced, refunded,
renewed or extended, taken as a whole, (d) the Administrative Agent has received a
certificate from the Borrower addressed to the Administrative Agent and the Lenders
certifying that the terms and conditions (including, if applicable, as to
collateral) of any such modified, refinanced, refunded, renewed or extended
Indebtedness are not materially less favorable to the Loan Parties or the Lenders
than the terms and conditions of the Indebtedness being modified, refinanced,
refunded, renewed or extended, (e) such modification, refinancing, refunding,
renewal or extension is incurred by the Person or Persons
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who are the obligors on the Indebtedness being modified, refinanced, refunded,
renewed or extended, (f) any guarantor of any such modified, refinanced, refunded,
renewed or extended Indebtedness shall be a Loan Party and (g) at the time thereof,
no Event of Default shall have occurred and be continuing.
“Secured Leverage Ratio” means, on any date, the ratio of (a) Total
Indebtedness that is secured by Liens as of such date to (b) Adjusted EBITDA for the
period of four consecutive fiscal quarters of the Borrower ended on such date (or,
if such date is not the last day of a fiscal quarter, ended on the last day of the
fiscal quarter of the Borrower most recently ended prior to such date).
“Senior Notes” means senior notes issued or incurred by the Borrower on
or after the Fifth Amendment Effective Date; provided that, in any event,
such Senior Notes (x) shall have a final maturity date that is not earlier than 95
days after the Term Loan Maturity Date and shall have no scheduled amortization
prior to such date (it being understood that such Senior Notes may have mandatory
prepayment, repurchase or redemption provisions in connection with (i) sales of
assets, (ii) a change in control and (iii) the exercise of remedies in connection
with the occurrence of an event of default), and (y) shall not be secured by Liens
on any assets.
(ii) Section 1.01 of the Credit Agreement is hereby amended by deleting the following
definition in its entirety: “Total Leverage Trigger Date”.
(iii) The definition of “Adjusted EBITDA” in Section 1.01 of the Credit
Agreement is hereby amended by adding the phrase “and the Secured Leverage Ratio” immediately
following the phrase “the Total Leverage Ratio” appearing in clause (a)(iii) thereof.
(iv) The definition of “Consolidated EBITDA” in Section 1.01 of the Credit
Agreement is hereby amended by adding the following new clause (vii) immediately following clause
(vi) thereof:
“plus (vii) reasonable and customary transaction costs (including
without limitation, all reasonable and customary fees and expenses of attorneys,
accountants and other consultants, all reasonable and customary underwriting or
placement agent fees, and reasonable and customary fees and expenses of any trustee,
registrar or transfer agent) incurred and paid in connection with the Fifth
Amendment and the issuance of any Senior Notes, in each case to the extent incurred
and paid,”
(v) The definition of “Net Proceeds” in Section 1.01 of the Credit Agreement
is hereby amended by deleting the text of such definition in its entirety and replacing it with the
following:
“Net Proceeds” means, with respect to any event, (a) the cash proceeds
received in respect of such event including (i) any cash received in respect of any
non-cash proceeds, but only as and when received, (ii) in the case of a casualty,
insurance proceeds (excluding proceeds of business interruption insurance), and
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(iii) in the case of a condemnation or similar event, condemnation awards and
similar payments, net of (b) the sum of (i) all reasonable fees and out-of-pocket
expenses paid by the Borrower and the Subsidiary Loan Parties to third parties
(other than Affiliates) in connection with such event, (ii) in the case of a sale,
transfer or other disposition of an asset (including pursuant to a sale and
leaseback transaction or a casualty or a condemnation or similar proceeding), the
amount of all payments required to be made by the Borrower and the Subsidiary Loan
Parties as a result of such event to repay Indebtedness (other than Loans) secured
by such asset, (iii) in the case of the issuance of the Senior Notes, the excess, if
any, of (x) the aggregate amount of cash proceeds received in respect of such
issuance minus (y) the sum of (1) the aggregate outstanding principal amount of the
Term Loans as of the date such cash proceeds are received and (2) all reasonable
fees and out-of-pocket expenses paid or incurred by the Borrower and the Subsidiary
Loan Parties to third parties (other than Affiliates) in connection with the
issuance of the Senior Notes and (iv) the amount of all taxes paid (or reasonably
estimated to be payable) by the Borrower or any of the Subsidiary Loan Parties, and
the amount of any reserves established by the Borrower and the Subsidiary Loan
Parties to fund contingent liabilities reasonably estimated to be payable, in each
case during the year that such event occurred or the next succeeding year and that
are directly attributable to such event (as determined reasonably and in good faith
by the chief financial officer of the Borrower).
(vi) The definition of “Prepayment Event” in Section 1.01 of the Credit
Agreement is hereby amended by deleting the phrase “clauses (a)(iii), (iv) and (v)” in its entirety
and replacing it with “clauses (a)(i), (iii), (iv) and (v)”.
(vii) The definition of “Subsidiary” in Section 1.01 of the Credit Agreement
is hereby amended by deleting the text of such definition in its entirety and replacing it with the
following:
“Subsidiary” means any subsidiary of the Borrower; provided that, so long as
the Borrower owns no more than 50% of the equity interest in and has no more than 50% of
the ordinary voting power of any CSMS Counterparty, such CSMS Counterparty shall not be
considered a Subsidiary of the Borrower; provided, further that Cumulus Media Partners, CMP
Holdings, Susquehanna Holdings and each of their subsidiaries will not be considered
Subsidiaries of the Borrower regardless of the percentage of equity interests and ordinary
voting power owned by the Borrower; and provided, further that the Escrow Entity shall not
be considered a Subsidiary of the Borrower regardless of the percentage of equity interests
and ordinary voting power owned by the Borrower.
2. Amendment to Section 2.07 of the Credit Agreement. Section 2.07 of the
Credit Agreement is hereby amended by replacing such Section in its entirety with the following:
SECTION 2.07 Termination and Reduction of Commitments. (a) Unless
previously terminated, (i) the Term Loan Commitments shall terminate at 5:00 p.m.,
New York City time, on July 10, 2006 and (ii) the Revolving Commitments shall
terminate on the Revolving Maturity Date.
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(b) The Borrower may at any time terminate, or from time to time reduce, the
Revolving Commitments; provided that (i) each reduction of the Revolving Commitments
shall be in an amount that is an integral multiple of $1,000,000 and not less than
$5,000,000 and (ii) the Borrower shall not terminate or reduce the Revolving
Commitments if, after giving effect to any concurrent prepayment of the Revolving
Loans in accordance with Section 2.10, the sum of the Revolving Exposures
would exceed the total Revolving Commitments.
(c) Each Revolving Lender may, at its option, at any time following the first
date on which any Indebtedness is incurred under any Incremental Facilities pursuant
to Section 2.19, terminate or reduce its Revolving Commitment; provided that
each partial reduction of the Revolving Commitment held by such Revolving Lender
shall be in an amount that is an integral multiple of $1,000,000.
(d) The Borrower or the Revolving Lender, as applicable, shall notify the
Administrative Agent of any election to terminate or reduce the Revolving
Commitments under paragraphs (b) or (c) of this Section at least three Business Days
prior to the effective date of such termination or reduction, specifying such
election and the effective date thereof. Promptly following receipt of any notice,
the Administrative Agent shall advise the Revolving Lenders (and the Borrower, in
the case of a termination or reduction under paragraph (c) of this Section) of the
contents thereof. Each notice delivered by the Borrower pursuant to this Section
shall be irrevocable; provided that a notice of termination of the Revolving
Commitments delivered by the Borrower may state that such notice is conditioned upon
the effectiveness of other credit facilities, in which case such notice may be
revoked by the Borrower (by notice to the Administrative Agent on or prior to the
specified effective date) if such condition is not satisfied. Any termination or
reduction of the Revolving Commitments shall be permanent. Each reduction of the
Revolving Commitments made pursuant to paragraph (b) of this Section shall be made
ratably among the Revolving Lenders in accordance with their respective Revolving
Commitments.
3. Amendments to Section 2.10 of the Credit Agreement.
(a) Section 2.10 of the Credit Agreement is hereby amended by replacing clause (b) of
such Section in its entirety with the following:
(b) In the event and on each occasion that (i) the sum of the Revolving
Exposures exceeds the total Revolving Commitments, the Borrower shall prepay
Revolving Borrowings (or, if no such Borrowings are outstanding, deposit cash
collateral in an account with the Administrative Agent pursuant to Section
2.04(j)) in an aggregate amount equal to such excess or (ii) the Revolving
Exposure with respect to any Revolving Lender exceeds the Revolving Commitment of
such Revolving Lender, the Borrower shall prepay Revolving Borrowings (or, if no
such Borrowings are outstanding, deposit cash collateral in an account with the
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Administrative Agent pursuant to Section 2.04(j)) in an aggregate amount
sufficient to reduce such Revolving Exposure by an amount equal to such excess.
(b) Section 2.10 of the Credit Agreement is hereby further amended by adding the
following sentence at the end of clause (d) thereof:
Notwithstanding the foregoing or anything else herein to the contrary, no
prepayment under this clause (d) shall be required if the outstanding principal
amount of the Term Loans and any term loans issued pursuant to Section 2.19
is $0 as of the relevant date of prepayment.
4. Amendment to Section 2.19 of the Credit Agreement. Section 2.19 of the
Credit Agreement is hereby amended by replacing such Section in its entirety with the following:
SECTION 2.19 Incremental Facility. The Borrower may at any time and
from time to time after the Fifth Amendment Effective Date, by notice to the
Administrative Agent (whereupon the Administrative Agent shall promptly deliver a
copy to each of the Lenders), request the addition of (collectively, the
“Incremental Facilities”) a new tranche of term loans (an “Incremental
Term Facility”) or an increase in the Revolving Commitments (“Incremental
Revolving Commitments”) or a combination thereof; provided that (i) at
the time of any such request and upon the effectiveness of the Incremental Facility
Amendment referred to below, no Default or Event of Default shall exist, (ii) the
Borrower shall be in compliance with Sections 6.13, 6.14 and
6.16 determined on a pro forma basis both before and after giving effect to
such Incremental Facility (as if such Incremental Facility had been outstanding on
the last day of the most recent fiscal quarter for testing compliance therewith),
(iii) 100% of the Net Proceeds received in respect of any Incremental Term Facility
shall be used to prepay, repurchase or redeem the Senior Notes and (iv) all fees and
expenses owing to the Administrative Agent and the Lenders in respect of such
Incremental Facility shall have been paid (provided that the Administrative Agent
will consult with the Borrower before agreeing to any commitment or upfront fees
with the banks or other financial institutions providing such Incremental Facility).
The Incremental Facilities shall be in an aggregate principal amount not exceeding
(in the aggregate) $200,000,000, each Incremental Term Facility shall be in an
aggregate principal amount not less than $50,000,000, and each of the Incremental
Revolving Commitments shall be in an aggregate principal amount not less than
$10,000,000. Each Incremental Facility (a) shall rank pari passu in
right of payment and of security with the Revolving Loans and the Term Loans, (b) in
the case of an Incremental Term Facility, shall not mature earlier than the Term
Loan Maturity Date (but may, subject to clause (c) below, have amortization and
commitment reductions prior to such date), (c) in the case of an Incremental Term
Facility, shall have a weighted average life that is not less than that of the Term
Loans, and (d) in the case of an Incremental Term Facility, for purposes of
prepayments, shall be treated substantially the same as (and in any event no more
favorably than) the Term Loans; provided that (x) the terms and conditions
applicable to any Incremental Facility maturing after the Term Loan Maturity
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Date or, if the Term Loans have been paid in full as of the date of the
issuance or incurrence of any such Incremental Facility, maturing after the
Revolving Maturity Date, may provide for material additional or different financial
or other covenants applicable only during periods after the Term Loan Maturity Date
or Revolving Maturity Date, as the case may be, and (y) the Incremental Term
Facility may be priced differently than the Term Loans. Any such notice shall set
forth the requested amount and terms of the relevant Incremental Facility. The
Borrower may arrange for one or more banks or other financial institutions, each of
which shall be reasonably satisfactory to the Administrative Agent and the Borrower
and, with respect only to Incremental Revolving Commitments, the Issuing Bank (any
such bank or other financial institution being called an “Additional
Lender”), to extend commitments under the Incremental Facility, and each
existing Lender shall be afforded an opportunity, but shall not be required, to
provide a portion of any such Incremental Facility. Commitments in respect of
Incremental Facilities shall become Commitments under this Agreement, and each
Additional Lender shall become a Lender under this Agreement, pursuant to an
amendment (an “Incremental Facility Amendment”) to this Agreement and, as
appropriate, the other Loan Documents, executed by the Borrower, each existing
Lender agreeing to provide such Commitment, if any, each Additional Lender, if any,
and the Administrative Agent. An Incremental Facility Amendment may, without the
consent of any other Lenders, effect such amendments to this Agreement and the other
Loan Documents to the extent (but only to the extent) necessary to effect the
provisions of this Section. The effectiveness of any Incremental Facility Amendment
shall be subject to the satisfaction on the date thereof of each of the conditions
set forth in Section 4.02 (it being understood that all references to “the
date of such Borrowing” in such Section 4.02 shall be deemed to refer to the
effective date of such Incremental Facility Amendment). Except as otherwise
expressly set forth above, the proceeds of the Incremental Facilities will be used
for working capital and other general corporate purposes, including consideration
for Permitted Acquisitions.
Notwithstanding anything contained herein to the contrary, from and after the
Fifth Amendment Effective Date, no Incremental Revolving Commitments may be issued
or funded hereunder and the foregoing provisions of this Section 2.19 as it
relates to the issuance or funding of Incremental Revolving Commitments shall be of
no further force and effect.
5. Amendment to Section 5.01 of the Credit Agreement. Section 5.01 of the
Credit Agreement is hereby amended by adding the phrase “and the Secured Leverage Ratio”
immediately following the phrase “the Total Leverage Ratio” appearing in clause (c) thereof.
6. Amendments to Section 6.01 of the Credit Agreement. Section 6.01 of the
Credit Agreement is hereby amended by (a) replacing clause (a)(i) thereof in its entirety with the
new clause (a)(i) set forth below, (b) replacing the “.” appearing at the end of clause (a)(viii)
with “; and”, and (c) adding the new clause (a)(ix) set forth below:
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(i) Indebtedness created under the Loan Documents (including Indebtedness under
any Incremental Facilities incurred in compliance with Section 2.19);
(ix) Indebtedness evidenced by the Senior Notes in an aggregate principal
amount not exceeding $650,000,000 at any time outstanding, and any Permitted
Refinancings in respect thereof.
7. Amendments to Section 6.04 of the Credit Agreement. Section 6.04 of the
Credit Agreement is hereby amended by (i) replacing the “.” appearing at the end of clause (l) with
”;” and (ii) adding the following new clauses (m), (n) and (o):
(m) Guarantees made by any Subsidiary Loan Party in respect of obligations
under the Senior Notes;
(n) investments in the Escrow Entity in an aggregate amount not to exceed
$30,000,000 in the aggregate; and
(o) other investments made on or after the Effective Date in an aggregate
amount not exceeding $100,000 in the aggregate.
8. Amendment to Section 6.08 of the Credit Agreement. Section 6.08 of the
Credit Agreement is hereby amended by replacing clause (b) in its entirety with the following:
(b) The Borrower will not, nor will it permit any Subsidiary Loan Party to,
make, directly or indirectly, any payment or other distribution (whether in cash,
securities or other property) of or in respect of principal of or interest on any
Indebtedness, or any payment or other distribution (whether in cash, securities or
other property), including any sinking fund or similar deposit, on account of the
purchase, redemption, retirement, acquisition, cancellation or termination of any
Indebtedness, except:
(i) payment or prepayment of Indebtedness created under the Loan
Documents;
(ii) payment of regularly scheduled interest and principal payments as
and when due in respect of any Indebtedness permitted by Section 6.01;
(iii) refinancings of Indebtedness to the extent permitted by Section
6.01;
(iv) payment of secured Indebtedness that becomes due as a result of
the voluntary sale or transfer of the property or assets securing such
Indebtedness; and
(v) the repurchase, redemption or other acquisition or retirement for
value of all or any portion of the Senior Notes and the
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payment of any premiums in connection therewith in an aggregate amount
not to exceed $200,000,000 during the term hereof (including, without
limitation, with the proceeds of Incremental Term Loans).
9. Amendment to Section 6.09 of the Credit Agreement. Section 6.09 of the
Credit Agreement is hereby amended by replacing such Section in its entirety with the following:
SECTION 6.09. Transactions with Affiliates. The Borrower will not, and
will not permit any of the Subsidiary Loan Parties to, sell, lease or otherwise
transfer any property or assets to, or purchase, lease or otherwise acquire any
property or assets from, or otherwise engage in any other transactions with, any of
its Affiliates, except (a) transactions in the ordinary course of business at prices
and on terms and conditions not less favorable to the Borrower or such Subsidiary
Loan Party than could be obtained on an arm’s-length basis from unrelated third
parties, (b) transactions between or among the Borrower and Subsidiary Loan Parties
not involving any other Affiliate, (c) any Restricted Payment permitted by
Section 6.08(a) and (d) any investment permitted by Section 6.04(n).
10. Amendment to Section 6.10 of the Credit Agreement. Section 6.10 of the
Credit Agreement is hereby amended by replacing such Section in its entirety with the following:
SECTION 6.10. Restrictive Agreements. The Borrower will not, and will
not permit any of the Subsidiary Loan Parties to, directly or indirectly, enter
into, incur or permit to exist any agreement or other arrangement that prohibits,
restricts or imposes any condition upon (a) the ability of the Borrower or any
Subsidiary Loan Party to create, incur or permit to exist any Lien upon any of its
property or assets, or (b) the ability of any Subsidiary Loan Party to pay dividends
or other distributions with respect to any of its Equity Interests or to make or
repay loans or advances to the Borrower or any other Subsidiary Loan Party or to
Guarantee Indebtedness of the Borrower or any other Subsidiary Loan Party; provided
that (i) the foregoing shall not apply to restrictions and conditions imposed by law
or by any Loan Document, (ii) the foregoing shall not apply to restrictions and
conditions existing on the Effective Date identified on Schedule 6.10 (but shall
apply to any extension or renewal of, or any amendment or modification expanding the
scope of, any such restriction or condition), (iii) the foregoing shall not apply to
customary restrictions and conditions contained in agreements relating to the sale
of a Subsidiary pending such sale, provided such restrictions and conditions apply
only to the Subsidiary that is to be sold and such sale is permitted hereunder, (iv)
clause (a) of the foregoing shall not apply to restrictions or conditions imposed by
any agreement relating to secured Indebtedness permitted by this Agreement if such
restrictions or conditions apply only to the property or assets securing such
Indebtedness, (v) the foregoing shall not apply to negative pledges and restrictions
on Liens in favor of any holder of Indebtedness permitted under Section 6.01
but only if such negative pledge or restriction expressly permits Liens created
under the Loan Documents or any refinancings thereof on a senior basis and without a
requirement that such holders of such Indebtedness be secured by such Liens equally
and ratably or on a junior
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basis and (vi) clause (a) of the foregoing shall not apply to customary provisions
in leases and other contracts restricting the assignment thereof.
11. Amendment to Section 6.11 of the Credit Agreement. Section 6.11 of the
Credit Agreement is hereby amended by replacing such Section in its entirety with the following:
SECTION 6.11. FCC Licenses and License Subsidiaries. The Borrower will
not permit any FCC License to be owned or acquired by any Person other than a
corporation or limited liability company organized under the laws of a jurisdiction
in the United States that (a) is a Subsidiary Loan Party and is wholly owned
directly by a Loan Party, (b) does not engage in any business or activity other than
the ownership of one or more FCC Licenses and activities incidental thereto, (c)
does not own or acquire any assets other than one or more FCC Licenses, cash and
Permitted Investments and (d) does not have or incur any Indebtedness or other
liabilities other than liabilities under the Loan Documents, liabilities imposed by
law, including tax liabilities, and other liabilities incidental to its existence
and permitted business and activities (any corporation or limited liability company
satisfying the foregoing requirements, a “License Subsidiary”).
12. Amendment to Section 6.14 of the Credit Agreement. Section 6.14 of the
Credit Agreement is hereby amended by replacing such Section in its entirety with the following:
SECTION 6.14. Secured Leverage Ratio. The Borrower will not permit the
Secured Leverage Ratio, as of the last day of any fiscal quarter ending after the
Fifth Amendment Effective Date, to be greater than 3.00 to 1.00.
B. Miscellaneous.
1. Effectiveness; Conditions Precedent.
(a) Subject in all respects to clause (b) below, this Fifth Amendment shall become
effective and binding upon receipt by the Administrative Agent of counterparts of this Fifth
Amendment duly executed by the Borrower, each Subsidiary of the Borrower, the Required
Lenders and the Required Revolving Lenders.
(b) Notwithstanding the foregoing, the amendments set forth in Section A. hereof shall
not be operative for any purpose and shall not be effective or binding until the condition
set forth is clause (a) above has been satisfied and, in addition, the following conditions
have been satisfied:
(i) On or before June 1, 2011, the Borrower shall have received net
cash proceeds from the issuance of the Senior Notes in an amount not less
than the amount necessary to pay in full the aggregate outstanding principal
amount of Term Loans and all accrued but unpaid interest thereon; and
(ii)
All appropriate parties shall have received the fees and expenses
due and payable in connection with this Fifth Amendment.
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2. Repayment of Term Loans. The Borrower shall prepay Borrowings in accordance with
Section 2.10 of the Credit Agreement.
3. Consent of the Subsidiary Loan Parties. Each Subsidiary Loan Party hereby
consents, acknowledges and agrees to the amendments set forth herein and hereby confirms and
ratifies in all respects the Collateral Agreement to which such Subsidiary Loan Party is a party
(including without limitation the continuation of such Subsidiary Loan Party’s payment and
performance obligations thereunder upon and after the effectiveness of this Fifth Amendment) and
the enforceability of such Collateral Agreement against such Subsidiary Loan Party in accordance
with its terms.
4. Acknowledgment of Perfection of Liens. Each Loan Party hereby acknowledges that,
as of the date hereof, the security interests and liens granted to the Administrative Agent and the
Lenders under the Credit Agreement and the other Loan Documents are in full force and effect, are
properly perfected and are enforceable in accordance with the terms of the Credit Agreement and the
other Loan Documents.
5. Representations and Warranties. In order to induce the Administrative Agent and
the Lenders to enter into this Fifth Amendment, the Borrower represents and warrants to the
Administrative Agent and the Lenders as follows:
(i) The representations and warranties made by the Borrower in Article
III of the Credit Agreement are true and correct in all material respects on and
as of the date hereof, both before and after giving effect to the transactions
contemplated by this Fifth Amendment, except to the extent that such representations
and warranties expressly relate to an earlier date;
(ii) No Default or Event of Default has occurred and is continuing on the date
hereof, both before and after giving effect to the transactions contemplated by this
Fifth Amendment.
(iii) This Fifth Amendment and the transactions contemplated hereby are within
the power and authority of the Borrower and the Subsidiary Loan Parties and have
been duly authorized by all necessary corporate and, if required, stockholder
action. This Fifth Amendment has been duly executed and delivered by the Borrower
and the Subsidiary Loan Parties and constitutes a legal, valid and binding
obligation of the Borrower or such Subsidiary Loan Party (as the case may be),
enforceable in accordance with its terms, subject to applicable bankruptcy,
insolvency, reorganization, moratorium or other laws affecting creditors’ rights
generally and subject to general principles of equity, regardless of whether
considered in a proceeding in equity or at law.
(iv) This Fifth Amendment and the consummation of the transactions contemplated
hereby (a) do not require any consent or approval of, registration or filing with,
or any other action by, any Governmental Authority (including the FCC) or any other
Person, except such as have been obtained or made and are in full force and effect,
(b) will not violate any applicable law or regulation or the
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charter, by-laws or other organizational documents of the Borrower or any of
the Subsidiary Loan Parties or any order of any Governmental Authority (including
the FCC), (c) will not violate or result in a default under any indenture, agreement
or other material instrument binding upon the Borrower or any of its Subsidiaries or
any of their respective assets, or give rise to a right thereunder to require any
payment to be made by the Borrower or any of its Subsidiaries, and (d) will not
result in the creation or imposition of any Lien on any asset of the Borrower or any
of the Subsidiary Loan Parties, except Liens created under the Loan Documents.
6. Modifications to this Amendment. None of the terms or conditions of this Fifth
Amendment may be changed, modified, waived or canceled orally or otherwise, except in writing and
in accordance with Section 9.02 of the Credit Agreement.
7. Full Force and Effect of Agreement. Except as hereby specifically amended,
modified or supplemented, the Credit Agreement and all other Loan Documents are hereby confirmed
and ratified in all respects and shall be and remain in full force and effect according to their
respective terms. Except as expressly set forth herein, this Fifth Amendment (a) shall not by
implication or otherwise limit, impair, constitute a waiver of or otherwise affect the rights and
remedies of the Lenders, the Administrative Agent or the Loan Parties under the Credit Agreement or
any other Loan Document and (b) shall not alter, modify, amend or in any way affect any of the
terms, conditions, obligations, covenants or agreements contained in the Credit Agreement or any
other Loan Document, all of which are ratified and affirmed in all respects and shall continue in
full force and effect. Nothing herein shall be deemed to entitle the Borrower to a consent to, or
a waiver, amendment, modification or other change of, any of the terms, conditions, obligations,
covenants or agreements contained in the Credit Agreement or any other Loan Document in similar or
different circumstances. This Fifth Amendment shall be deemed a Loan Document, and the Borrower
reaffirms its obligations under Section 9.03(b) of the Credit Agreement with respect to this Fifth
Amendment and the transactions contemplated hereby.
8. No Novation. This Fifth Amendment is not intended by the parties hereto to be, and
shall not be construed to be, a novation of the Credit Agreement and the other Loan Documents or an
accord or satisfaction in regard thereto.
9. Counterparts. This Fifth Amendment may be executed in any number of counterparts,
each of which shall be deemed an original as against any party whose signature appears thereon, and
all of which shall together constitute one and the same instrument. Delivery of an executed
counterpart of a signature page of this Fifth Amendment by telecopy or electronic delivery
(including by pdf) shall be effective as delivery of a manually executed counterpart of this Fifth
Amendment.
10. Severability. Any provision of this Fifth Amendment which is invalid, prohibited
or unenforceable for any reason shall be ineffective to the extent of such invalidity, prohibition
or unenforceability without invalidating the remaining provisions hereof or affecting the validity
or enforceability of such remaining provisions.
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11. Governing Law. This Fifth Amendment shall be construed in accordance with and
governed by the law of the State of New York.
12. References. All references in any of the Loan Documents to the “Credit Agreement”
shall mean the Credit Agreement, as amended hereby and as further amended, supplemented or
otherwise modified from time to time.
13. Successors and Assigns. This Fifth Amendment shall be binding upon and inure to
the benefit of the Borrower, the Administrative Agent, each of the Subsidiary Loan Parties and
Lenders, and their respective successors, legal representatives, and assignees to the extent such
assignees are permitted assignees as provided in Section 9.04 of the Credit Agreement.
[Signature pages follow]
13
IN WITNESS WHEREOF, the parties hereto have caused this instrument to be made, executed and
delivered by their duly authorized officers as of the day and year first above written.
BORROWER: CUMULUS MEDIA INC., as Borrower |
||||
| By: | /s/ Xxxxxxx X. Xxxxxxx | |||
| Name: | Xxxxxxx X. Xxxxxxx | |||
| Title: | Senior Vice President and General Counsel | |||
SUBSIDIARY LOAN PARTIES: CUMULUS BROADCASTING LLC |
||||
| By: | /s/ Xxxxxxx X. Xxxxxxx | |||
| Name: | Xxxxxxx X. Xxxxxxx | |||
| Title: | Vice President | |||
| CUMULUS LICENSING LLC |
||||
| By: | /s/ Xxxxxxx X. Xxxxxxx | |||
| Name: | Xxxxxxx X. Xxxxxxx | |||
| Title: | Vice President | |||
| BROADCAST SOFTWARE INTERNATIONAL |
||||
| By: | /s/ Xxxxxxx X. Xxxxxxx | |||
| Name: | Xxxxxxx X. Xxxxxxx | |||
| Title: | Vice President | |||
| CUMULUS MEDIA HOLDINGS INC. |
||||
| By: | /s/ Xxxxxxx X. Xxxxxxx | |||
| Name: | Xxxxxxx X. Xxxxxxx | |||
| Title: | Vice President | |||
CADET MERGER CORPORATION |
||||
| By: | /s/ Xxxxxxx X. Xxxxxxx | |||
| Name: | Xxxxxxx X. Xxxxxxx | |||
| Title: | Vice President | |||
| LENDERS and ADMINISTRATIVE AGENT: GENERAL ELECTRIC CAPITAL CORPORATION, as a Lender and Administrative Agent |
||||
| By: | /s/ Xxxxxxxx X. Xxxxxx | |||
| Name: | Xxxxxxxx X. Xxxxxx | |||
| Title: | Authorized Signatory | |||
[Form
of signature page for Lenders to Amendment No. 5
to Credit Agreement for Cumulus Media Inc.]
to Credit Agreement for Cumulus Media Inc.]
| [LENDER] |
||||
| By: | /s/ | |||
| Name: | ||||
| Title: | ||||
