EXHIBIT 10.1
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FIRST AMENDMENT TO
REVOLVING CREDIT AND TERM LOAN AGREEMENT
This FIRST AMENDMENT TO REVOLVING CREDIT AND TERM LOAN AGREEMENT, dated
as of June 6, 2005 (this "AMENDMENT"), is by and among (a) EMMIS OPERATING
COMPANY (the "BORROWER"), an Indiana corporation, (b) EMMIS COMMUNICATIONS
CORPORATION (the "PARENT"), an Indiana corporation, (c) the lending institutions
listed on Schedule 1 to the Credit Agreement, as defined below, (together with
any institution that becomes a lender pursuant to ss.15 or ss.17 of the Credit
Agreement, the "LENDERS"), (d) BANK OF AMERICA, N.A., as administrative agent
for the Lenders (in such capacity, the "ADMINISTRATIVE AGENT"), (e) XXXXXXX
XXXXX CREDIT PARTNERS L.P., as syndication agent for the Lenders (in such
capacity, the "SYNDICATION AGENT"), and (f) WACHOVIA BANK, N.A., DEUTSCHE BANK
SECURITIES INC., and CREDIT SUISSE FIRST BOSTON, ACTING THROUGH ITS CAYMAN
ISLANDS BRANCH, as co-documentation agents for the Lenders (in such capacity,
each a "CO-DOCUMENTATION AGENT" and collectively, the "CO-DOCUMENTATION
AGENTS"). Capitalized terms used herein without definition shall have the
meanings assigned to such terms in the Credit Agreement.
WHEREAS, the Borrower, the Parent, the Lenders and the Agents are
parties to that certain Revolving Credit and Term Loan Agreement, dated as of
May 10, 2004 (as amended, restated, supplemented or otherwise modified and in
effect from time to time, the "CREDIT AGREEMENT"), pursuant to which the Lenders
have made loans and otherwise extended credit to the Borrower on the terms and
subject to the conditions set forth therein;
WHEREAS, the Borrower, the Parent, the Lenders and the Agents have
agreed to modify certain terms and conditions of the Credit Agreement as
specifically set forth in this Amendment;
NOW THEREFORE, in consideration of the foregoing premises and for other
good and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the Borrower, the Parent, the Lenders and the Agents hereby agree
as follows:
SECTION 1. AMENDMENTS TO SECTION 1.1 OF THE CREDIT AGREEMENT.
(a) Section 1.1 of the Credit Agreement is hereby amended by
adding the following new SUBCLAUSE (A)(V) immediately after SUBCLAUSE (A)(IV) in
the definition of "Consolidated Operating Cash Flow":
"PLUS, (v) to the extent deducted in the calculation of
Consolidated Net Income (or Deficit) for such period, transaction costs
and expenses incurred in connection with the issuance of the HoldCo
Floating Rate Notes, the 2005 ECC Stock Tender Offer and any amendments
to the Credit Agreement in connection therewith".
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(b) Section 1.1 of the Credit Agreement is hereby further
amended by adding the following to the end of the definition of "Consolidated
Total Interest Expense":
"In addition to the foregoing and solely for purposes of
determining Consolidated Total Interest Expense with respect to
ss.ss.11.3 and 11.4 hereof, for the Reference Periods ending on the
last day of the first three fiscal quarters ending after the First
Amendment Effective Date, Consolidated Total Interest Expense shall be
an amount equal to the product of Consolidated Total Interest Expense
for the fiscal quarters in such Reference Period which ended after the
First Amendment Effective Date, multiplied by a fraction whose
numerator is four (4) and whose denominator is such actual number of
fiscal quarters ending since the First Amendment Effective Date."
(c) Section 1.1 of the Credit Agreement is hereby further
amended by deleting CLAUSE (I) appearing in the definition of "HoldCo Corporate
Overhead Expenses" and restating such CLAUSE (I) as follows:
"(i) fees payable to the trustee under the Senior Discount
Note Indenture and the HoldCo Floating Rate Note Indenture".
(d) Section 1.1 of the Credit Agreement is hereby further
amended by deleting the definition of "Net Cash Sale Proceeds" and restating it
as follows:
"NET CASH SALE PROCEEDS. In respect of any Asset Sale or
Asset Swap, the gross cash proceeds received by the Parent or any of
its Subsidiaries, or in respect of any sale of TV Assets by an Excluded
Subsidiary, the gross cash proceeds received by such Excluded
Subsidiary, MINUS, in each case, the sum of (a) all reasonable
out-of-pocket fees, commissions and other reasonable and customary
direct expenses actually incurred in connection with such Asset Sale or
Asset Swap or sale of TV Assets, including the amount of any transfer
or documentary taxes required to be paid by such Person in connection
with such Asset Sale or Asset Swap or sale of TV Assets, PLUS (b) the
aggregate amount of cash so received by such Person which is required
to be used to retire (in whole or in part) any Indebtedness (other than
under the Loan Documents) of such Person permitted by this Credit
Agreement that was secured by a lien or security interest permitted by
this Credit Agreement (for purposes of determining whether Indebtedness
and related liens were permitted by this Credit Agreement with respect
to Indebtedness of an Excluded Subsidiary and related liens,
Indebtedness of an Excluded Subsidiary and related liens shall not be
deemed permitted unless such Indebtedness and related liens would have
been permitted by this Credit Agreement had such Excluded Subsidiary
been a Subsidiary) having priority over the liens and security
interests (if any) of the Administrative Agent (for the benefit of the
Administrative Agent and the Lenders) with respect to such assets
transferred and which is required to be repaid in whole or in part
(which repayment, in the case of any other revolving credit arrangement
or multiple advance arrangement, reduces any commitment thereunder) in
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connection with such Asset Sale or Asset Swap or sale of TV Assets,
PLUS (c) any cash reserve in an amount reasonably determined by the
Borrower to be necessary in connection with indemnification obligations
or potential post-closing purchase price adjustments relating to such
Asset Sale or Asset Swap or sale of TV Assets so long as the
Administrative Agent holds such cash reserve amount as cash collateral
pursuant to ss.4.6 hereof (unless held by an Excluded Subsidiary in the
case of a sale of TV Assets contributed to an Excluded Subsidiary in
accordance with ss.10.3(k)) and the Borrower provides to the
Administrative Agent an accounting of such proceeds reasonably
satisfactory to the Administrative Agent. If the Parent or any of its
Subsidiaries or an Excluded Subsidiary receives any promissory notes or
other instruments as part of the consideration for such Asset Sale or
Asset Swap or if payment in cash of any portion of the consideration
for such Asset Sale or Asset Swap or sale of TV Assets is otherwise
deferred or if the amount previously held as a cash reserve for
indemnification obligations or purchase price adjustments is reduced,
Net Cash Sale Proceeds shall be deemed to include any cash payments in
respect of such notes or instruments or otherwise deferred portion of
such consideration when and to the extent received by such Person."
(e) Section 1.1 of the Credit Agreement is hereby further
amended by adding the following new definitions in the appropriate alphabetical
order:
"FIRST AMENDMENT EFFECTIVE DATE. The date on which the
conditions set forth in ss.13 of the First Amendment to this Credit
Agreement, dated as of June 6, 2005, among the Borrower, the Parent,
the Lenders and the Administrative Agent, have been satisfied."
"HOLDCO FLOATING RATE NOTE DOCUMENTS. Each of the
documents, instruments and other agreements entered into or delivered
by the Parent (including, without limitation, the HoldCo Floating Rate
Notes and the HoldCo Floating Rate Note Indenture) relating to the
issuance by the Parent of the HoldCo Floating Rate Notes, each in form
and substance reasonably satisfactory to the Administrative Agent, as
the same may be supplemented, amended or modified from time to time."
"HOLDCO FLOATING RATE NOTE INDENTURE. The Indenture between
the Parent and a corporate trustee with respect to the HoldCo Floating
Rate Notes, in form and substance reasonably satisfactory to the
Administrative Agent, as the same may be supplemented, amended or
modified from time to time, so long as any amendment or modification
shall not make a provision thereof more restrictive than the terms and
conditions of this Credit Agreement."
"HOLDCO FLOATING RATE NOTES. The Senior Unsecured Floating
Rate Notes due 2012 issued by the Parent under the HoldCo Floating Rate
Note Indenture and any refinancing thereof, the proceeds of which shall
be used by the Parent
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(a) to repurchase its Capital Stock or to invest in the equity of the
Borrower and (b) to pay related fees and expenses in connection with
such transactions."
"TV ASSETS. Television assets or businesses including,
without limitation, the television Stations and assets associated
therewith listed on SCHEDULE 8.3(B) of the Credit Agreement and the
television licenses listed on SCHEDULE 8.21 of the Credit Agreement."
"TV ASSET SALE. Any one or series of transactions pursuant
to which the Borrower or any Subsidiary conveys, sells, leases,
licenses or otherwise disposes of, directly or indirectly, TV Assets."
"2005 ECC STOCK TENDER OFFER. The Parent's purchase, prior
to October 31, 2006, of shares of its Capital Stock in an aggregate
purchase amount not to exceed $400,000,000."
SECTION 2. AMENDMENT TO SECTION 4.2 OF THE CREDIT AGREEMENT. Section
4.2 of the Credit Agreement is hereby amended by inserting the parenthetical
"(a)" immediately after the title thereto and inserting the following new CLAUSE
(B) immediately at the end of ss.4.2:
"(b) Notwithstanding any provision of ss.4.2(a) to the
contrary, if the Borrower or any Subsidiary receives Net Cash Sale
Proceeds from any TV Asset Sale, subject to the last sentence of this
ss.4.2(b), : (i) FIRST, the Borrower shall pay to the Administrative
Agent, for the respective accounts of the Lenders as provided in ss.4.5
that portion of such Net Cash Sale Proceeds as necessary to enable the
Borrower to demonstrate compliance on a Pro Forma Basis with the
financial covenants set forth in ss.11 hereof, such amount to be
applied to prepay the Loans in the manner set forth in ss.4.5, (ii)
SECOND, the Borrower may apply any remainder Net Cash Sale Proceeds
from such TV Asset Sale in excess of the Net Cash Sale Proceeds
required to be applied pursuant to clause (i) above to prepay or redeem
the Refinancing Notes or the HoldCo Floating Rate Notes; PROVIDED that
if as of the last day of the fiscal quarter ended immediately prior to
the date of such TV Asset Sale, the Total Leverage Ratio (calculated on
a Pro Forma Basis after giving effect to such TV Asset Sale) is greater
than 6.00:1.00, the Borrower shall offer to repurchase the Refinancing
Notes as and if required pursuant to ss.4.10(d) of Refinancing Note
Indenture, and (iii) THIRD, the Borrower may apply any remainder Net
Cash Sale Proceeds from such TV Asset Sale in excess of the Net Cash
Sale Proceeds applied pursuant to clauses (i) and (ii) above to prepay
or redeem the HoldCo Floating Rate Notes (including any amounts applied
to the offer described in clause (ii) above and not accepted by the
holders of the Refinancing Notes). The provisions of ss.4.2(a) relating
to the Borrower's reinvestment rights in connection with an Asset Sale
or Asset Swap shall apply MUTATIS MUTANDIS with respect to the receipt
of Net Cash Sale Proceeds from a TV Asset Sale so that the Borrower may
have the same reinvestment rights, subject to the same limitations,
with respect to a TV Asset Sale as it would be entitled to with respect
to any other Asset Sale or Asset Swap."
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SECTION 3. AMENDMENT TO SECTION 4.4 OF THE CREDIT AGREEMENT. Section
4.4 of the Credit Agreement is hereby amended by deleting such section in its
entirety and restating it as follows:
"4.4 PROCEEDS OF SUBORDINATED DEBT ISSUANCES. If the
Borrower or any Subsidiary receives net cash proceeds from any issuance
of Subordinated Debt or if the Parent receives net cash proceeds from
any issuance of Indebtedness as set forth in ss.10.13 (other than
Indebtedness evidenced by the HoldCo Floating Rate Notes and any
refinancing thereof and Subordinated Debt issued to refinance (i) the
Subordinated Notes outstanding on the date hereof, (ii) all or any
portion of the Senior Discount Notes outstanding on the date hereof and
(iii) all or any portion of the Refinancing Notes outstanding on or
after the date hereof) and the Senior Leverage Ratio as of the end of
the fiscal quarter ended immediately prior to the date of such
Subordinated Debt or Indebtedness issuance is greater than 5.00:1.00,
the Borrower shall pay to the Administrative Agent for the respective
accounts of the Lenders an amount equal to the lesser of (a) one
hundred percent (100%) of such net cash proceeds, or (b) that amount
necessary to reduce the Senior Leverage Ratio to 5.00:1.00 after giving
effect to such prepayment, in each case such amount to be applied to
prepay the Loans in the manner set forth in ss.4.5."
SECTION 4. AMENDMENT TO SECTION 8.24 OF THE CREDIT AGREEMENT. Section
8.24 of the Credit Agreement is hereby amended by deleting such section in its
entirety and restating it as follows:
"8.24 EXCLUDED SUBSIDIARIES. The entities set forth in
clause (b) of the definition of "Excluded Subsidiaries" do not own or
operate any Station, broadcasting business or publishing business
within the United States and either own no assets or own only stock of
Persons whose primary businesses are owning or operating broadcasting
businesses outside the United States. The entity set forth in clause
(d) of the definition of "Excluded Subsidiaries" is a fifty-one percent
(51%) owned limited liability company. The primary business of Country
Sampler Stores LLC is the retail sale of products like those advertised
in "Country Sampler Magazine". The Austin Partnership is a Texas
limited partnership, 49.69443% of which is owned by the Borrower. RAM
is a Texas limited liability company, 50.1% of which is owned by the
Borrower. In the event any Excluded Subsidiary after the date hereof
holds or acquires TV Assets, such transfer of TV Assets shall have been
made in accordance with ss.10.3(k) and with respect to any subsequent
transfers of such TV Assets, either the TV Assets or the Net Cash Sale
Proceeds thereof shall have been transferred to the Borrower, its
Subsidiaries or the Parent."
SECTION 5. AMENDMENT TO SECTION 9.14 OF THE CREDIT AGREEMENT. Section
9.14 of the Credit Agreement is hereby amended by deleting such section in its
entirety and restating it as follows:
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"9.14. INTEREST RATE PROTECTION. From time to time after
February 27, 2007, so long as the Total Leverage Ratio as of the end of
the fiscal quarter most recently ended is greater than or equal to
6.00:1.00, the Borrower shall purchase or enter into interest caps or
swaps or other additional interest rate protection agreements as shall
be necessary to cap or fix the interest cost to the Borrower with
respect to not less than thirty percent (30%) of Consolidated Total
Funded Debt outstanding from time to time during any such period
thereafter, in each case at rates and on terms and conditions
reasonably satisfactory to the Administrative Agent."
SECTION 6. AMENDMENT TO SECTION 10.3 OF THE CREDIT AGREEMENT. Section
10.3 of the Credit Agreement is hereby amended by adding the following new
CLAUSE (K) immediately after CLAUSE (J) thereof:
"(k) Investments in an Excluded Subsidiary in the form of a
contribution or transfer to such Excluded Subsidiary of TV Assets with
a fair market value in an aggregate amount not to exceed $300,000,000
as determined at the time of contribution which TV Assets shall be, at
the time of such contribution or transfer, subject to a binding
contract for sale to a Person (other than the Parent or its
Subsidiaries or any Excluded Subsidiary), PROVIDED that (i) such sale
shall meet the requirements of ss.10.5.2(v)(2), (v)(3) and (v)(5) as if
such sale were a TV Asset Sale, (ii) no Default or Event of Default has
occurred and is continuing at the time such Investment is made or would
result therefrom, (iii) no default or event of default has occurred and
is continuing or would result therefrom under the Refinancing Note
Documents, (iv) in the event such sale is consummated, the Net Cash
Sale Proceeds thereof are transferred to the Borrower or its
Subsidiaries and applied in accordance with ss.4.2(b) as Net Cash Sale
Proceeds from any TV Asset Sale as if such sale were a TV Asset Sale,
and, in the event such sale is not consummated, such TV Assets shall be
contributed or transferred to the Borrower or any of its Subsidiaries
or such Excluded Subsidiary shall be designated a Subsidiary and shall
have complied with ss.9.15;".
SECTION 7. AMENDMENTS TO SECTION 10.4 OF THE CREDIT AGREEMENT.
(a) Section 10.4 of the Credit Agreement is hereby amended by
restating CLAUSE (F) thereof in its entirety as follows:
"(f) so long as no Default or Event of Default has occurred
and is continuing or would result from such payments and the Borrower
delivers to the Administrative Agent a duly executed certificate
substantially in the form of EXHIBIT F hereto, the Borrower may make
(i) cash Distributions to the Parent to enable it to pay scheduled
payments of interest on the Senior Discount Notes, PROVIDED that under
no circumstances shall the Borrower make any such Distributions prior
to September 15, 2006, (ii) Distributions to the Parent to enable it to
pay scheduled dividends on its preferred stock; PROVIDED that in the
case of preferred stock issued after the date hereof, contemporaneously
with the issuance of such preferred stock (other than preferred stock
issued to refinance,
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replace or redeem outstanding preferred stock), the Borrower received
the Net Cash Equity Issuance Proceeds from such Equity Issuance, (iii)
Distributions to the Parent to satisfy the Parent's obligations to make
payments of the type permitted under clause (e) above, and (iv) cash
Distributions to the Parent to enable it to repurchase its Capital
Stock; PROVIDED that, in the case of this clause (iv), the Total
Leverage Ratio as of the last day of the fiscal quarter most recently
ended prior to the proposed date of such repurchase (calculated on a
PRO FORMA basis after giving effect to such repurchase) with respect to
any repurchase other than the 2005 ECC Stock Tender Offer occurring
after the Funding Date, does not exceed the lesser of (A) 6.00:1.00 and
(B) 0.50 lower than the then required Total Leverage Ratio, (v) cash
Distributions to the Parent to enable it to pay scheduled payments of
interest on the HoldCo Floating Rate Notes so long as at the time of
such Distribution and after giving effect thereto, the Borrower shall
be in compliance with the terms of the Refinancing Note Documents, (vi)
cash Distributions to the Parent derived from the Net Cash Sale
Proceeds of a TV Asset Sale, after the Borrower's application thereof
pursuant to ss.4.2(b)(i), to enable the Parent to repay or redeem all
or a portion of the then outstanding aggregate principal amount of the
HoldCo Floating Rate Notes in accordance with ss.4.2(b) so long as at
the time of such Distribution and after giving effect thereto, the
Borrower shall be in compliance with the terms of the Refinancing Note
Documents, (vii) cash Distributions to the Parent in an amount equal to
the proceeds of dividends received by Borrower or any Subsidiary from
an Excluded Subsidiary derived from a sale of TV Assets by such
Excluded Subsidiary, after the Borrower's application thereof pursuant
to ss.4.2(b)(i), to enable the Parent to repay or redeem all or any
portion of the outstanding aggregate principal amount of the HoldCo
Floating Rate Notes, and (viii) cash Distributions to the Parent in an
amount equal to any capital contributions made by the Parent with
proceeds of HoldCo Floating Rate Notes and used by the Borrower to
prepay Revolving Credit Loans so long as the aggregate amount of all
such Distributions shall not exceed the aggregate amount of such
capital contributions."
(b) Section 10.4 of the Credit Agreement is hereby further
amended by deleting the word "and" at the end of CLAUSE (G) thereof, replacing
the period at the end of CLAUSE (H) thereof with a semicolon and the word "and",
and adding the following new clause (i) immediately after CLAUSE (H) thereof:
"the Borrowers may repay the Refinancing Notes as permitted
pursuant to ss.4.2(b)(ii) hereof."
SECTION 8. AMENDMENT TO SECTION 10.13 OF THE CREDIT AGREEMENT. Section
10.13 of the Credit Agreement is hereby amended by deleting CLAUSES (C) and (D)
thereof in their entirety and restating such CLAUSES (C) and (D) as follows:
"(c) incur Indebtedness in respect of the Obligations and
Indebtedness evidenced by the Senior Discount Notes and the HoldCo
Floating Rate Notes, (d) incur Indebtedness (other than the HoldCo
Floating Rate Notes) on or after the Funding Date, PROVIDED that (i)
the material terms of such Indebtedness shall be
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substantially similar or less restrictive than the terms of the Senior
Discount Notes and the maturity date of such new Indebtedness shall be
at least six (6) months after the later of (x) the Tranche B Maturity
Date and (y) the maturity date of any new Tranches established prior to
the issuance of such new Indebtedness pursuant to ss.15.1, in each case
as reasonably determined by the Administrative Agent (it being
understood that such new Indebtedness shall not be deemed more
restrictive than the Senior Discount Notes solely because it might bear
interest at a higher rate than the rate applicable to the Senior
Discount Notes), and (ii) contemporaneously with the receipt by the
Parent of cash proceeds from the issuance of any such new Indebtedness,
the Parent shall either (I) apply the net cash proceeds received by the
Parent from such issuance (net of costs and expenses incurred in
connection with such issuance and net of any amounts applied to
refinance the Senior Discount Notes or the HoldCo Floating Rate Notes)
in accordance with ss.4.4, or (II) make an equity contribution to the
Borrower in an amount equal to such net cash proceeds, the amount of
such equity contribution to be applied by the Borrower in accordance
with ss.4.3,".
SECTION 9. AMENDMENTS TO SECTION 11 OF THE CREDIT AGREEMENT.
(a) Section 11.1 of the Credit Agreement is hereby amended by
restating the table therein in its entirety as follows:
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PERIOD (inclusive of dates) RATIO
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Funding Date - 11/29/04 7.50:1.00
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11/30/04 - 8/30/06 7.25:1.00
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8/31/06 - 2/27/07 7.00:1.00
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2/28/07 - 2/28/08 6.50:1.00
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2/29/08 - 2/27/09 6.25:1.00
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2/28/09 - 2/27/10 6.00:1.00
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Thereafter 5.75:1.00
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(b) Section 11.2 of the Credit Agreement is hereby amended by
restating the table therein in its entirety as follows:
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PERIOD (inclusive of dates) RATIO
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Funding Date - 11/29/04 5.50:1.00
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11/30/04 - 8/30/06 5.25:1.00
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8/31/06 - 2/27/07 5.00:1.00
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2/28/07 - 2/28/08 4.50:1.00
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2/29/08 - 2/27/09 4.25:1.00
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2/28/09 - 2/27/10 4.00:1.00
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Thereafter 3.75:1.00
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(c) Section 11.3 of the Credit Agreement is hereby amended by
restating the table therein in its entirety and adding the text after such table
as follows:
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PERIOD (inclusive of dates) RATIO
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Funding Date - 2/27/05 2.25:1.00
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2/28/05 - 11/29/06 1.55:1.00
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11/30/06 - 2/27/09 1.65:1.00
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Thereafter 1.75:1.00
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"Notwithstanding the foregoing table, the Interest Coverage Ratio
levels as in effect prior to the First Amendment Effective Date will
remain in effect for any Reference Period ending prior to the First
Amendment Effective Date."
(d) Section 11.4 of the Credit Agreement is hereby amended by
restating the table therein in its entirety and adding the text after such table
as follows:
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PERIOD (inclusive of dates) RATIO
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Funding Date - 2/27/05 1.25:1.00
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2/28/05 - 11/29/06 1.15:1.00
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11/30/06 - 2/27/09 1.25:1.00
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Thereafter 1.35:1.00
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"Notwithstanding the foregoing table, the Fixed Charge Coverage Ratio
levels as in effect prior to the First Amendment Effective Date will
remain in effect for any Reference Period ending prior to the First
Amendment Effective Date."
SECTION 10. [RESERVED.]
SECTION 11. AMENDMENTS TO SECTION 14.1 OF THE CREDIT AGREEMENT.
(a) Section 14.1 of the Credit Agreement is hereby amended by
deleting CLAUSE (R) in its entirety and restating it as follows:
"(r) at any time, (i) any of the Subsidiaries or Excluded
Subsidiaries shall provide a guaranty of the Parent's obligations under
the Senior Discount Notes or the HoldCo Floating Rate Notes, or (ii)
any of the Subsidiaries shall provide a guaranty of the Borrower's
obligations under the Subordinated Notes or the Refinancing Notes, as
applicable, or any other Subordinated Debt if such Subsidiary is not at
such time guarantying the Obligations pursuant to the Guaranty or if
such guaranty of the Borrower's obligations under the Subordinated
Notes, the Refinancing Notes or such other Subordinated Debt, as
applicable, is not subordinated to such Subsidiary's Obligations under
the Guaranty;".
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(b) Section 14.1 of the Credit Agreement is hereby further
amended by deleting CLAUSE (W) in its entirety and restating it as follows:
"(w) any "DEFAULT" or "EVENT OF DEFAULT" under the Senior
Discount Notes or any default or event of default shall have occurred
under any agreement, document or instrument governing Indebtedness of
the Parent in excess of $5,000,000 for money borrowed or for bonds,
debentures, notes or similar instruments."
(c) Section 14.1 of the Credit Agreement is hereby further
amended by adding the following new CLAUSE (Z) immediately after CLAUSE (Y)
thereof:
"(z) the conveyance, sale, lease, license or other
disposition, directly or indirectly of any TV Asset by an Excluded
Subsidiary to a Person (other than the Parent or its Subsidiaries or an
Excluded Subsidiary) if the Net Cash Sale Proceeds of which are not
transferred to the Borrower or its Subsidiaries and applied in
accordance with ss.4.2(b) as Net Cash Sale Proceeds from any TV Asset
Sale as if such sale were a TV Asset Sale;".
SECTION 12. AMENDMENT TO SECTION 15.1 OF THE CREDIT AGREEMENT. Section
15.1 of the Credit Agreement is hereby amended by deleting CLAUSE 6(C) thereof
in its entirety and restating it as follows:
"(C) any Revolving Credit Loans made hereunder shall
constitute permitted indebtedness under each of the Subordinated Note
Indenture, the Senior Discount Note Indenture, the Refinancing Note
Indenture and the HoldCo Floating Rate Note Indenture, as applicable,
without requiring the Borrower or the Parent, as applicable, to
demonstrate compliance with any leverage ratio incurrence covenants
contained in the Subordinated Note Indenture, the Senior Discount Note
Indenture, the Refinancing Note Indenture and the HoldCo Floating Rate
Note Indenture, as applicable."
SECTION 13. CONDITIONS TO EFFECTIVENESS. This Amendment shall become
effective upon the satisfaction of each of the following conditions precedent:
(a) the Administrative Agent shall have received a counterpart
signature page to this Amendment duly executed and delivered by the Borrower,
the Parent, and the Required Lenders;
(b) the Borrower shall have paid to the Administrative Agent,
for the PRO RATA account of each of the Lenders which shall have returned to the
Administrative Agent an executed signature page to this Amendment on or prior to
May 26, 2005, an amendment fee in an amount equal to fifteen hundredths of one
percent (0.15%) of the aggregate amount of such Lenders' Commitment;
(c) the Administrative Agent shall have received evidence
reasonably satisfactory to the Administrative Agent that all corporate action
necessary for the valid
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execution, delivery and performance by the Borrower and the Parent, as
applicable, of (i) this Amendment and the transactions contemplated hereby and
(ii) the HoldCo Floating Rate Note Documents and the transactions contemplated
thereby, shall have been duly and effectively taken;
(d) the Administrative Agent shall have received a copy,
certified by a duly authorized officer of the Parent to be true and complete on
the date hereof, of the HoldCo Floating Rate Note Indenture and all documents
executed and delivered by the Parent in connection therewith;
(e) the Administrative Agent shall have received copies of all
legal opinions executed and delivered by counsel to the Parent in connection
with the issuance of the HoldCo Floating Rate Notes, which opinions shall
provide that the Agents and the Lenders may rely on each such legal opinion,
other than opinions relating to Section 10(b)(5) of the Securities Act of 1934
(or if such legal opinions do not contain such a provision, the Administrative
Agent shall also receive a reliance letter addressed to the Agents and the
Lenders in form and substance reasonably satisfactory to the Administrative
Agent with respect to each such legal opinion); and
(f) contemporaneously upon the earlier of (i) the issuance of
the HoldCo Floating Rate Notes, or (ii) the effectiveness of the first purchase
of Capital Stock under the 2005 ECC Stock Tender Offer.
SECTION 14. AFFIRMATION OF BORROWER AND PARENT. The Borrower and the
Parent each hereby affirm its Obligations under the Credit Agreement and under
each of the other Loan Documents to which each is a party and each hereby
affirms its absolute and unconditional promise to pay to the Lenders the Loans
and all other amounts due under the Credit Agreement (as amended hereby) and the
other Loan Documents.
SECTION 15 REPRESENTATIONS AND WARRANTIES. The Borrower and the Parent
each hereby represent and warrant to the Lenders and the Administrative Agent as
follows:
(a) REPRESENTATIONS AND WARRANTIES. Each of the representations
and warranties contained in ss.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 in all material respects on and as of the date hereof,
except to the extent of changes resulting from transactions contemplated or
permitted by the Credit Agreement and the other Loan Documents, changes
occurring in the ordinary course of business that singly or in the aggregate are
not materially adverse and to the extent that such representations and
warranties relate specifically to a prior date.
(b) ENFORCEABILITY. The execution and delivery by the Borrower
and the Parent of this Amendment, and the performance by the Borrower and the
Parent of this Amendment and the Credit Agreement, as amended hereby, are within
the corporate authority of each of the Borrower and the Parent 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 each of the
-12-
Borrower and the Parent, 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 after giving effect to this Amendment, no Default or Event of
Default will result from the execution, delivery and performance by the Borrower
and the Parent of this Amendment or from the consummation of the transactions
contemplated herein.
SECTION 16. 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, consent or a waiver of any
requirements of the Borrower or the Parent or of any other Person under the
Credit Agreement or any of the other Loan Documents except as expressly set
forth herein. Nothing in this Amendment shall be construed to imply any
willingness on the part of the Administrative Agent or the Lenders to grant any
similar or future amendment, consent or waiver of any of the terms and
conditions of the Credit Agreement or the other Loan Documents.
SECTION 17. 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 18. MISCELLANEOUS. This Amendment shall for all purposes be
construed in accordance with and governed by the laws of the State of New York.
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
Administrative Agent, on demand by the Administrative Agent, all reasonable
out-of-pocket costs and expenses incurred or sustained by the Administrative
Agent in connection with the preparation of this Amendment, including reasonable
legal fees.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, the undersigned have duly executed this Amendment
as a sealed instrument as of the date first set forth above.
EMMIS OPERATING COMPANY,
as Borrower
By: /s/ J. Xxxxx Xxxxxxx
-------------------------------
Name: J. Xxxxx Xxxxxxx
Title: Vice President
EMMIS COMMUNICATIONS
CORPORATION, as Parent
By: /s/ J. Xxxxx Xxxxxxx
-------------------------------
Name: J. Xxxxx Xxxxxxx
Title: Vice President
Each of the undersigned Subsidiaries 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 RADIO LICENSE, LLC
EMMIS RADIO, LLC
EMMIS TELEVISION LICENSE, LLC
EMMIS INTERNATIONAL BROADCASTING
CORPORATION
EMMIS RADIO LICENSE CORPORATION
OF NEW YORK
EMMIS TELEVISION LICENSE
CORPORATION OF WICHITA
EMMIS TELEVISION LICENSE
CORPORATION OF TOPEKA
EMMIS MEADOWLANDS CORPORATION
EMMIS PUBLISHING CORPORATION
LOS ANGELES MAGAZINE HOLDING
COMPANY, INC.
MEDIATEX COMMUNICATIONS
CORPORATION
SJL OF KANSAS CORP.
TOPEKA TELEVISION CORPORATION
By: /s/ J. Xxxxx Xxxxxxx
-------------------------------
Name: J. Xxxxx Xxxxxxx
Title: Vice President
EMMIS INDIANA BROADCASTING, L.P.
EMMIS TELEVISION BROADCASTING, L.P.
EMMIS PUBLISHING, L.P.
By: Emmis Operating Company,
its General Partner
By: /s/ J. Xxxxx Xxxxxxx
-------------------------------
Name: J. Xxxxx Xxxxxxx
Title: Vice President
EMMIS RADIO CORPORATION
(f/k/a Emmis Broadcasting
Corporation of New York)
By: /s/ J. Xxxxx Xxxxxxx
-------------------------------
Name: J. Xxxxx Xxxxxxx
Title: Vice President
EMMIS SOUTH AMERICA BROADCASTING
CORPORATION
EMMIS LATIN AMERICA BROADCASTING
CORPORATION
By: /s/ J. Xxxxx Xxxxxxx
-------------------------------
Name: J. Xxxxx Xxxxxxx
Title: Vice President
EMMIS LICENSE CORPORATION
EMMIS RADIO LICENSE CORPORATION
(f/k/a Emmis FM License
Corporation of St. Louis)
EMMIS LICENSE CORPORATION OF NEW YORK
EMMIS TELEVISION LICENSE CORPORATION
(f/k/a Emmis Television
License Corporation of Honolulu)
By: /s/ J. Xxxxx Xxxxxxx
-------------------------------
Name: J. Xxxxx Xxxxxxx
Title: Vice President
BANK OF AMERICA N.A.
By: /s/ Xxx Xxxxx
-------------------------------
Name: Xxx Xxxxx
Title: Sr. Vice President
XXXXXXX XXXXX CREDIT
PARTNERS, L.P.
By: /s/ Xxxxx Xxxxxxxxxx
-------------------------------
Name: Xxxxx Xxxxxxxxxx
Title: Authorized Signatory
WACHOVIA BANK, N.A.
By: /s/ Xxxx Xxxxx
-------------------------------
Name: Xxxx Xxxxx
Title: Director
DEUTSCHE BANK TRUST COMPANY AMERICAS
By: /s/ Xxxxx X. XxXxxxx
-------------------------------
Name: Xxxxx X. XxXxxxx
Title: Director
By: /s/ Xxxxx Xxxxxx
-------------------------------
Name: Xxxxx Xxxxxx
Title: Vice President
CREDIT SUISSE, CAYMAN ISLANDS
BRANCH, (FORMERLY KNOWN AS
CREDIT SUISSE FIRST BOSTON,
ACTING THROUGH ITS CAYMAN
ISLANDS BRANCH)
By: /s/ Xxx Xxxxx
-------------------------------
Name: Xxx Xxxxx
Title: Director
By: /s/ Xxxxxx Xxxx
-------------------------------
Name: Xxxxxx Xxxx
Title: Associate
