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FIRST AMENDMENT
TO THE
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
AMONG
SFX BROADCASTING, INC.,
BORROWER
THE SUBSIDIARIES OF BORROWER
LISTED ON THE SIGNATURE PAGES HEREOF
THE BANK OF NEW YORK,
AS AGENT FOR THE LENDERS AND INDIVIDUALLY AS A LENDER
AND
THE LENDERS
LISTED ON THE SIGNATURE PAGES HEREOF
DATED AS OF JANUARY 22, 1997
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FIRST AMENDMENT TO THE
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
THIS FIRST AMENDMENT TO THE SECOND AMENDED AND RESTATED
CREDIT AGREEMENT is entered into as of January 22, 1997 among SFX Broadcasting,
Inc., a Delaware corporation ("Borrower"), the Subsidiaries of SFX
Broadcasting, Inc. listed on the signature pages hereof, the Lenders listed on
the signature pages hereof and The Bank of New York, as Agent for the Lenders,
and amends the Second Amended and Restated Credit Agreement, dated November 22,
1996, among the Borrower, the Subsidiaries from time to time parties thereto,
the Lenders from time to time parties thereto and the Agent (the "Credit
Agreement"). Capitalized terms used herein and not otherwise defined have the
meaning assigned to them in the Credit Agreement.
W I T N E S S E T H
WHEREAS, pursuant to the Credit Agreement, the Lenders and
the Agent have made certain credit facilities available to Borrower on the
terms and subject to the conditions set forth therein; and
WHEREAS, Borrower desires to offer and issue $225,000,000 of
its 12-5/8% Series E Cumulative Exchangeable Preferred Stock (the "Series E
Preferred Stock") substantially on the terms set forth in the Prospectus
Supplement (to Prospectus dated December 10, 1996) filed by Borrower with the
Securities and Exchange Commission on January 17, 1997 (the "Prospectus
Supplement") and to pay dividends on the Series E Preferred Stock in accordance
with the terms described in such Prospectus Supplement;
WHEREAS, Borrower has requested that the Lenders and the
Agent amend the Credit Agreement to (i) permit such offering and issuance of
the Series E Preferred Stock substantially on the terms set forth in the
Prospectus Supplement, and (ii) to permit payment of dividends on the Series E
Preferred Stock on the terms described in the Prospectus Supplement; and
WHEREAS, the Lenders and the Agent have agreed to amend the
Credit Agreement as so requested.
NOW, THEREFORE, for and in consideration of the above
premises and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto hereby agree
as follows:
1. The Credit Agreement is hereby amended by deleting
Section 6.12 therein in its entirety and inserting
in lieu thereof the following:
Section 6.12 Restricted Payments. No Obligor shall
make a Restricted Payment, except (i) any Obligor
may make a Restricted Payment to Borrower and (ii)
so long as no Default or Event of Default would
exist before or after giving effect thereto,
Restricted Payments shall be permitted with respect
to: (i) cash dividends equal to 6% per annum of the
liquidation preference for the Series C Preferred
Stock in accordance with the terms thereof on the
date hereof, (ii) any cash dividends payable on the
Borrower's Series D Preferred Stock in accordance
with the terms thereof as in effect on the date
hereof, (iii) any cash dividends payable on the
Borrowers' Series E Preferred Stock in accordance
with the terms thereof described in the Prospectus
Supplement, (iv) redemptions of the Series C
Preferred Stock pursuant to the exercise of the put
rights maintained by the holder of such shares in
accordance with the terms of the Dallas Acquisition,
(v) scheduled redemptions of the Borrower's Series B
Preferred Stock in accordance with the terms thereof
as in effect on the date hereof, (vi) the redemption
of the MMR Warrants in an amount not to exceed
$250,000, (vii) any redemption of up to a 4%
minority interest held in ABS, (viii) the repurchase
of up to $150,000 of MMR stock options held by Xxxxx
Xxxxxx and (ix) up to $25,000,000 in repurchases of
the Borrower's stock or warrants, other than any
stock specified in clauses (iv) and (v) above
provided that the Total Leverage Ratio is less than
or equal to 4.5 to 1.0 before and after giving
effect thereto.
2. The Credit Agreement is hereby amended by deleting
Section 6.13 therein in its entirety and inserting
in lieu thereof the following:
Section 6.13 Issuance of Securities. No Obligor
will, directly or indirectly, issue, sell or
otherwise dispose of (a) any of its shares of
capital stock or any other investment securities of
any class, (b) any securities convertible into or
exchangeable for any such shares or (c) any
warrants, options, rights to subscribe for or
purchase any such shares or other rights with
respect to such shares, except that, (i) Borrower
may issue from time to time securities to
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employees, officers, or directors of Borrower, or to
consultants providing bona fide services to Borrower
or a Subsidiary of Borrower on commercially
reasonable terms, in either case pursuant to any
stock option, stock bonus or other employee benefit
plan approved by the board of directors of Borrower,
unless, at the time when such plan is approved, or
at the time when rights under any such plan are
exercised, in either case on a fully diluted basis,
a Default or Event of Default would exist after
giving effect thereto and by reason thereof or after
giving effect to and by reason of the exercise by
such employees, officers or directors of their
respective rights thereunder (including, an Event of
Default of the nature described in Section 7.11),
(ii) Borrower may issue common equity provided no
Default or Event of Default would exist after giving
effect thereto and by reason thereof (including an
Event of Default of the nature described in Section
7.11) and (iii) Borrower may issue its Series E
Preferred Stock in accordance with the terms of the
Prospectus Supplement provided no Default or Event
of Default would exist after giving effect thereto
and by reason thereof (including an Event of Default
of the nature described in Section 7.11), and
thereafter pay dividends thereon in the form of
shares of the Series E Preferred Stock in accordance
with the terms of the Prospectus Supplement.
3. The Credit Agreement is hereby amended by deleting
therefrom the definition of "Fixed Charges" in
Section 1.1 in its entirety and inserting in lieu
thereof the following:
"Fixed Charges" means for the most recently
completed four fiscal quarters for the Borrower and
its subsidiaries on a consolidated basis, the sum of
the following paid during such fiscal period: (a)
Debt Service, (b) cash income taxes, (c) capital
expenditures, (d) all dividends with respect to the
Series C Preferred Stock, (e) all dividends with
respect to the Series D Preferred Stock and (f) all
cash dividends with respect to the Series E
Preferred Stock.
4. Representations and Warranties. Each Obligor
represents and warrants to the Agent and the
Lenders that (a) this First Amendment and each
other Loan Document executed by it in connection
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with this First Amendment has been duly authorized,
executed and delivered by such Obligor and the
Credit Agreement, as amended by this First
Amendment, and each such other Loan Document
constitutes a legal, valid, and binding obligation
of such Obligor, enforceable against such Obligor in
accordance with the terms thereof, (b) there exists
no Default or Event of Default under the Credit
Agreement, (c) the representations and warranties
set forth in the Credit Agreement and the other Loan
Documents to which it is a party are true and
correct as of the date hereof as though made on and
as of the date hereof, (d) it has complied with all
agreements and conditions to be complied with by it
on or before the date hereof under the Credit
Agreement and the other Loan Documents to which it
is a party, and (e) the Credit Agreement, as amended
hereby, the other Loan Documents and the financing
statements filed in connection therewith, remain in
full force and effect, and subject only to Permitted
Liens, are sufficient to grant a first priority
security interest, in and on all Collateral
described therein, securing payment and performance
of the Obligations of Obligors under the Loan
Documents, as amended hereby.
5. Ratification. The Credit Agreement, as amended by
this First Amendment, and the other Loan Documents
remain in full force and effect and are hereby
ratified and confirmed.
6. Counterparts. This First Amendment may be executed
in any number of counterparts, all of which taken
together constitute one and the same agreement. In
making proof hereof, it shall not be necessary to
produce or account for any counterpart other than
one signed by the party against which enforcement
is sought.
7. Governing Law. This First Amendment shall be
governed by, and construed in accordance with, the
law of the State of New York.
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8. Entire Agreement; Ratification. The Credit
Agreement, as amended by this First Amendment, and
the other Loan Documents represent the final
agreement between the parties with respect to the
subject matter hereof and may not be contradicted
by evidence of prior, contemporaneous or subsequent
oral agreement of the parties. There are no oral
agreements or understandings among the parties.
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EXECUTED as of the day and year first mentioned.
SFX BROADCASTING, INC., BORROWER
BY: /S/ XXXXXX XXXXX
--------------------------------
NAME: XXXXXX XXXXX
TITLE: EXECUTIVE VICE PRESIDENT
SFX BROADCASTING OF THE SOUTHWEST, INC.
SFX BROADCASTING OF TEXAS, INC.
SFX BROADCASTING OF TEXAS (KRLD), INC.
SFX BROADCASTING OF TEXAS (KRLD) LICENSEE,
INC.
SFX BROADCASTING OF TEXAS (TSN), INC.
SFX BROADCASTING OF TEXAS (TSN) LICENSEE,
INC.
KODA-FM LICENSEE, INC.
KJQY-FM LICENSEE, INC.
SFX BROADCASTING OF TEXAS (KTCK), INC.
SFX BROADCASTING OF TEXAS (KTCK) LICENSEE,
INC.
SFX BROADCASTING OF THE SOUTHEAST, INC.
SFX BROADCASTING OF CENTRAL NORTH CAROLINA,
INC.
SFX BROADCASTING OF SOUTH CAROLINA (WMYI),
INC.
SFX BROADCASTING OF SOUTH CAROLINA (WMYI)
LICENSEE, INC.
SFX BROADCASTING OF MISSISSIPPI, INC.
SFX BROADCASTING OF MISSISSIPPI LICENSEE,
INC.
SFX BROADCASTING OF SOUTH CAROLINA (WSSL),
INC.
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SFX BROADCASTING OF SOUTH CAROLINA (WSSL)
LICENSEE, INC.
SFX BROADCASTING OF TENNESSEE, INC.
SFX BROADCASTING OF TENNESSEE LICENSEE, INC.
SFX BROADCASTING OF XXXXXXX, INC.
SFX BROADCASTING OF XXXXXXX LICENSEE, INC.
SFX BROADCASTING OF NORTH CAROLINA, INC.
SFX BROADCASTING OF NORTH CAROLINA LICENSEE,
INC.
SFX BROADCASTING OF SAN DIEGO, INC.
XXXXXX BROADCASTING COMPANY
SFX BROADCASTING OF SAN DIEGO LICENSEE, INC.
SFX ACQUISITION CORPORATION.
LIBERTY ACQUISITION SUBSIDIARY CORPORATION
LIBERTY BROADCASTING, INC.
LIBERTY BROADCASTING GROUP INCORPORATED
XXXX-XXXX COMMUNICATIONS, INC.
W.B.L.I., INC.
WBLI-FM, INC.
WHCN, INC.
WHCN-FM, INC.
WSNE, INC.
WSNE-FM, INC.
WPYX, INC.
WTRY, INC.
WYSR, INC.
WPOP, INC.
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WHJY, INC.
WHJJ, INC.
LIBERTY BROADCASTING OF NEW YORK INCORPORATED
WHFM, INC.
WBAB, INC.
WGBB, INC.
LIBERTY BROADCASTING OF ALBANY INCORPORATED
WGNA, INC.
WGNA-FM, INC.
LIBERTY BROADCASTING OF MARYLAND INCORPORATED
WHFS, INC.
LIBERTY BROADCASTING OF MARYLAND II
INCORPORATED
WMXB, INC.
WXTR, INC.
MUSICAL HEIGHTS, INC.
SFX BROADCASTING OF HARTFORD, INC.
WQSI, INC.
WZYQ, INC.
SFX MERGER COMPANY
MULTI-MARKET RADIO, INC.
SOUTHERN STARR OF MISSISSIPPI, INC.
SOUTHERN STARR BROADCASTING GROUP, INC.
GENERAL COMMUNICORP, INC.
GENERAL BROADCASTING OF CONNECTICUT, INC.
SOUTHERN STARR LIMITED PARTNERSHIP
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MULTI-MARKET RADIO OF AUGUSTA, INC.
MULTI-MARKET RADIO OF MYRTLE BEACH, INC.
MULTI-MARKET RADIO OF NORTHAMPTON, INC.
MULTI-MARKET RADIO OF HARTFORD, INC.
SOUTHERN STARR OF ARKANSAS, INC.
MULTI-MARKET RADIO OF SPRINGFIELD, INC.
SOUTHERN STARR COMMUNICATIONS, INC.
SOUTHERN STARR MANAGEMENT, INC.
GENERAL BROADCASTING OF FLORIDA, INC.
GENERAL BROADCASTING CORP.
BY: /S/ XXXXXX XXXXX
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NAME: XXXXXX XXXXX
TITLE: EXECUTIVE VICE PRESIDENT
THE BANK OF NEW YORK,
AS THE AGENT, THE LETTER OF CREDIT
ISSUING BANK AND AS A LENDER
BY: /S/ XXXXXX X. XXXXXX
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NAME: XXXXXX X. XXXXXX
TITLE: VICE PRESIDENT
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BANK OF TOKYO - MITSUBISHI TRUST COMPANY
BY: _____________________________
NAME:
TITLE:
BANKERS TRUST COMPANY
BY: /S/ XXXX X. XXXXXXXX
_____________________________
NAME: XXXX X. XXXXXXXX
TITLE: VICE PRESIDENT
BANK OF MONTREAL
BY: /S/ XXXX XXXXXXXXXXX
_____________________________
NAME: XXXX XXXXXXXXXXX
TITLE: DIRECTOR
BANQUE NATIONALE DE PARIS
BY: /S/ XXXX XXXXXXX
_____________________________
NAME: XXXX XXXXXXX
TITLE: VICE PRESIDENT
BY: /S/ XXXXXX XXXXXX
_____________________________
NAME: XXXXXX XXXXXX
TITLE: ASSISTANT TREASURER
CIBC, INC.
BY: /S/ XXXXXXX X. XXXXX
____________________________
NAME: XXXXXXX X. XXXXX
TITLE: AUTHORIZED SIGNATORY
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CORESTATES BANK N.A.
BY: /S/ XXXXX XXXXXXXX
_____________________________
NAME: XXXXX XXXXXXXX
TITLE: VICE PRESIDENT
THE FUJI BANK, LIMITED, NEW YORK BRANCH
BY: ______________________________
NAME:
TITLE:
XXXXXX COMMERCIAL PAPER INC.
BY: /S/ XXXXXX X. XXX
______________________________
NAME: XXXXXX X. XXX
TITLE: AUTHORIZED SIGNATORY
NATIONAL BANK OF CANADA
BY: /S/ XXXXXXX XXXXX
______________________________
NAME: XXXXXXX XXXXX
TITLE: VICE PRESIDENT
BY: /S/ XXXXX XXXXXX
______________________________
NAME: XXXXX XXXXXX
TITLE: VICE PRESIDENT
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NATIONAL CITY BANK
BY: /S/ XXXXXX X. XXXXXXX
___________________________
NAME: XXXXXX X. XXXXXXX
TITLE: ACCOUNT OFFICER
SOCIETE GENERALE
BY: /S/ XXXX XXXXX
____________________________
NAME: XXXX XXXXX
TITLE: VICE PRESIDENT
SOUTHERN PACIFIC THRIFT & LOAN ASSOCIATION
BY: /S/ XXXXXXX X. XXXXXXXXX
_____________________________
NAME: XXXXXXX X. XXXXXXXXX
TITLE: SENIOR VICE PRESIDENT
THE SUMITOMO BANK, LIMITED
BY: /S/ X.X. XXXXXXXX
_____________________________
NAME: X.X. XXXXXXXX
TITLE: VICE PRESIDENT-NEW YORK
OFFICE
BY: /S/ X.X. XXXXX
______________________________
NAME: X.X. XXXXX
TITLE: VICE PRESIDENT-NEW YORK
XXXXXX
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XXXXXXXX XXXX, XXXXXXX XXXXXXX, N.A.
BY: /S/ XXXXXXXXXXX X. XXXXXXX
____________________________
NAME: XXXXXXXXXXX X. XXXXXXX
TITLE: FIRST VICE PRESIDENT
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