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EXHIBIT 10.1.4
THIRD AMENDMENT AND WAIVER
THIRD AMENDMENT AND WAIVER (this "Amendment and Waiver"),
dated as of January 28, 1998, among CAPSTAR BROADCASTING CORPORATION, a
Delaware corporation ("Parent"), CAPSTAR BROADCASTING PARTNERS, INC., a
Delaware corporation ("Holdings"), CAPSTAR RADIO BROADCASTING PARTNERS, INC., a
Delaware corporation (the "Borrower"), the lenders party to the Amended and
Restated Credit Agreement referred to below (the "Banks"), BANKBOSTON, N.A., as
Managing Agent (in such capacity, the "Managing Agent"), NATIONSBANK OF TEXAS,
N.A., as Syndication Agent (in such capacity, the "Syndication Agent"), THE
BANK OF NEW YORK, as Documentation Agent (in such capacity, the "Documentation
Agent"), and BANKERS TRUST COMPANY, as Administrative Agent (in such capacity,
the "Administrative Agent"). Unless otherwise defined herein, all capitalized
terms used herein shall have the respective meanings provided such terms in the
Amended and Restated Credit Agreement referred to below.
W I T N E S S E T H :
WHEREAS, Parent, Holdings, the Borrower, the Banks, the
Managing Agent, the Syndication Agent, the Documentation Agent and the
Administrative Agent are parties to an Amended and Restated Credit Agreement,
dated as of February 20, 1997 and amended and restated as of August 12, 1997
(as amended, modified or supplemented from time to time to the date hereof, the
"Amended and Restated Credit Agreement");
WHEREAS, Capstar Acquisition Company, Inc. ("CAC"), a
subsidiary of Holdings, has entered into (x) a Stock Purchase Agreement, dated
as of June 12, 1997 (the "Xxxxxxxxx Agreement"), pursuant to which it has
agreed to purchase (the "Xxxxxxxxx Acquisition") 100% of the issued and
outstanding capital stock of Xxxxxxxxx Broadcasting, Inc. ("Xxxxxxxxx") and
(y) an Asset Purchase Agreement, dated as of October 22, 1997 (the "Clear
Channel Agreement"), pursuant to which it has agreed to sell subsequent to the
consummation of the Xxxxxxxxx Acquisition all of the assets of two subsidiaries
of Xxxxxxxxx, Xxxxxxxxx Allentown Broadcasting Corp. and Xxxxxxxxx Allentown
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Corp. (such subsidiaries, collectively, the "Xxxxxxxxx Allentown Subs") to
Clear Channel Metroplex, Inc. for approximately $29,000,000 (the "Allentown
Stations Disposition");
WHEREAS, CAC wishes to assign (x) all of its right, title and
interest in the Xxxxxxxxx Agreement to Parent and (y) after the consummation of
the Xxxxxxxxx Acquisition by Parent, all of its right, title and interest in
the Clear Channel Agreement to the Xxxxxxxxx Allentown Subs;
WHEREAS, pursuant to Sections 1.01 and 1.14 of the Amended and
Restated Credit Agreement, the Borrower desires to incur Term Loans in an
aggregate principal amount not to exceed $140,000,000 to finance, in part, the
Xxxxxxxxx Acquisition (the "Xxxxxxxxx Term Loans");
WHEREAS, the holders of the issued and outstanding shares of
capital stock of Parent have made a cash equity contribution to Parent (the
"First Equity Contribution") in an amount equal to $107,428,000 to finance in
part the Xxxxxxxxx Acquisition;
WHEREAS, the Borrower wishes to pay a cash Dividend to
Holdings in an amount equal to the sum of (x) the proceeds received by the
Borrower from the incurrence of the Xxxxxxxxx Term Loans and (y) $107,428,000,
and Holdings will promptly pay a cash Dividend to Parent in an amount equal to
the sum of (x) the proceeds of the Xxxxxxxxx Term Loans and (y) 107,428,000
(the "Xxxxxxxxx Dividends");
WHEREAS, the holders of the issued and outstanding shares of
capital stock of Parent intend to make a second cash equity contribution to
Parent (the "Second Equity Contribution," and together with the First Equity
Contribution, the "Parent Equity Contributions") in an amount equal to
$150,000,000 to repay the Xxxxxxxxx Term Loans; and
WHEREAS, in connection with the Xxxxxxxxx Acquisition, the
Allentown Stations Disposition and the Parent Equity Contributions, (i) each of
Parent, Holdings and the Borrower has requested the Banks, and the Banks hereby
agree, to waive certain requirements contained in the Amended and Restated
Credit Agreement and (ii) the parties hereto wish to amend certain provisions
of this Amended and Restated Credit Agreement, in each case as provided herein;
NOW, THEREFORE, it is agreed:
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I. Waivers to the Amended and Restated Credit Agreement
1. Notwithstanding anything to the contrary contained in
Section 8.02 of the Amended and Restated Credit Agreement, the Banks hereby
agree that (x) CAC may assign all of its right, title and interest in the
Xxxxxxxxx Agreement to Parent, (y) after the consummation of the Xxxxxxxxx
Acquisition by Parent, CAC may assign all of its right, title and interest in
the Clear Channel Agreement to the Xxxxxxxxx Allentown Subs which in turn may
assign all of such right, title and interest in the Clear Channel Agreement to
a Qualified Intermediary (as defined below) and (z) the Xxxxxxxxx Allentown
Subs may consummate the Allentown Stations Disposition so long as, in the case
of clause (z) above, the Net Sale Proceeds received from the Allentown Stations
Disposition are applied in accordance with the requirements of Section 4.02(e)
of the Amended and Restated Credit Agreement.
2. Notwithstanding anything to the contrary contained in
Sections 1.01(a) and 1.14 of the Amended and Restated Credit Agreement, the
undersigned Banks hereby agree that the incurrence by the Borrower of the
Xxxxxxxxx Term Loans shall not (i) reduce the number of Term Loan drawings
available to the Borrower pursuant to Section 1.01(a) of the Amended and
Restated Credit Agreement and (ii) be an increase in the Total Term Loan
Commitment for purposes of clause (iii) of the proviso contained in Section
1.14 of the Amended and Restated Credit Agreement.
3. Notwithstanding anything to the contrary contained in
Section 8.03 of the Amended and Restated Credit Agreement and so long as no
Default or Event of Default then exists, the Banks hereby consent to the
Borrower using the proceeds of the Xxxxxxxxx Term Loans and Revolving Loans to
pay a cash Dividend in an aggregate amount not to exceed $247,428,000 to
Holdings so long as Holdings promptly uses such proceeds to pay a cash Dividend
to Parent to enable Parent to finance, in part, the Xxxxxxxxx Acquisition.
4. Notwithstanding anything to the contrary contained in
Sections 4.02(e), 8.01 and 8.05 of the Amended and Restated Credit Agreement,
the Banks hereby waive the requirement in Section 4.02(e) of the Amended and
Restated Credit Agreement that, pending the reinvestment of such Net Sale
Proceeds as permitted by Section 4.02(e) of the Amended and Restated Credit
Agreement, the Total Revolving Loan Commitment be temporarily reduced by the
amount of the Net Sale Proceeds received by the Xxxxxxxxx Allentown Subs from
the Allentown Stations Disposition so long as such Net Sale Proceeds are placed
in escrow with a "Qualified Intermediary" (as defined in Treasury Regulation
$1.1031(k)-1(g)) pursuant to an escrow arrangement satisfactory (including,
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without limitation, as to the terms of such escrow arrangement granting a first
priority security interest in such Net Sale Proceeds to the Collateral Agent
for the benefit of the Secured Creditors) to the Administrative Agent.
5. Notwithstanding anything to the contrary contained in
Sections 3.03 and 4.02 of the Amended and Restated Credit Agreement, the Banks
hereby agree that the net cash proceeds received by Parent from the First
Equity Contribution shall not be required to be applied to permanently reduce
the Total Revolving Loan Commitment pursuant to Sections 3.03 and 4.02 of the
Amended and Restated Credit Agreement so long as (x) no Default or Event of
Default then exists, (y) a portion of such net cash proceeds equal to the then
outstanding principal amount of Revolving Loans maintained as Base Rate Loans
is immediately contributed to the capital of the Borrower and the Borrower
promptly utilizes such proceeds to repay the then outstanding principal amount
of Revolving Loans maintained as Base Rate Loans (without a corresponding
commitment reduction) and (z) the excess, if any, of such net cash proceeds not
used to repay outstanding Revolving Loans maintained as Base Rate Loans are
promptly used by Parent to finance, in part, the Xxxxxxxxx Acquisition.
6. Notwithstanding anything to the contrary contained in
Sections 3.03 and 4.02 of the Amended and Restated Credit Agreement, to the
extent that the aggregate amount of net cash proceeds received by Parent in
connection with the Second Equity Contribution exceeds the aggregate amount of
Term Loans then outstanding, the Banks hereby waive the requirement that such
excess cash proceeds be required to be applied to permanently reduce the Total
Revolving Loan Commitment pursuant to Sections 3.03 and 4.02 of the Amended and
Restated Credit Agreement so long as (x) no Default or Event of Default then
exists and (y) such excess cash proceeds are immediately contributed to the
capital of the Borrower and the Borrower promptly utilizes such proceeds to
repay then outstanding Revolving Loans (without a corresponding reduction to
the Total Revolving Loan Commitment then in effect).
7. Notwithstanding anything to the contrary contained in
Section 6.21 of the Amended and Restated Credit Agreement, the Banks hereby
agree that, for the period from the closing date of the Xxxxxxxxx Acquisition
to and including the date occurring 30 days after such closing date, Parent may
hold all the capital stock of Xxxxxxxxx (it being understood, however, that
upon the expiration of such time period Parent shall immediately contribute all
the capital stock of Xxxxxxxxx to Holdings which in turn shall contribute such
capital stock to the Borrower).
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8. Notwithstanding anything to the contrary contained in
Section 8.04 of the Amended and Restated Credit Agreement, the Banks hereby
consent to the guaranty of CAC's obligations under the Clear Channel Agreement
provided by Holdings.
9. Parent, Holdings, the Borrower and the Banks hereby
agree that, notwithstanding anything to the contrary contained in the Amended
and Restated Credit Agreement, if the Second Equity Contribution is not made on
or prior to February 21, 1998 an Event of Default shall be deemed to have
occurred on such date and the Banks shall at that time be entitled to exercise
any and all rights and remedies available to them in accordance with Section 9
of the Amended and Restated Credit Agreement.
II. Amendments to the Amended and Restated Credit Agreement
1. Section 4.02(k) of the Amended and Restated Credit
Agreement is hereby amended and restated in its entirety as follows:
"(k) Notwithstanding anything to the contrary contained
elsewhere in this Agreement, (i) all Xxxxxxxxx Term Loans shall be
repaid in full within thirty days after the incurrence thereof and
(ii) all then outstanding Loans shall be repaid in full on the Final
Maturity Date.
2. Section 10.01 of the Amended and Restated Credit
Agreement is hereby amended by inserting the following new definition in the
appropriate alphabetical order:
"Xxxxxxxxx Term Loans" shall mean all Term Loans incurred by
the Borrower to finance, in whole or in part, the Xxxxxxxxx
Acquisition."
III. Miscellaneous Provisions
1. In order to induce the Banks to enter into this Amendment
and Waiver, each of Parent, Holdings and the Borrower hereby represents and
warrants that:
(a) no Default or Event of Default exists as of the Amendment
and Waiver Effective Date (as hereinafter defined), both before and
after giving effect to this Amendment and Waiver; and
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(b) all of the representations and warranties contained in
the Amended and Restated Credit Agreement and the other Credit
Documents are true and correct in all material respects as of the
Amendment and Waiver Effective Date, both before and after giving
effect to this Amendment and Waiver, with the same effect as though
such representations and warranties had been made on and as of the
Amendment and Waiver Effective Date (it being understood that any
representation or warranty made as of a specific date shall be true
and correct in all material respects as of such specific date).
2. This Amendment and Waiver is limited as specified and
shall not constitute a modification, acceptance or waiver of any other
provision of the Amended and Restated Credit Agreement or any other Credit
Document.
3. This Amendment and Waiver may be executed in any number of
counterparts and by the different parties hereto on separate counterparts, each
of which counterparts when executed and delivered shall be an original, but all
of which shall together constitute one and the same instrument. A complete set
of counterparts shall be lodged with the Borrower and the Administrative Agent.
4. THIS AMENDMENT AND WAIVER AND THE RIGHTS AND OBLIGATIONS
OF THE PARTIES HEREUNDER SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY
THE LAWS OF THE STATE OF NEW YORK.
5. This Amendment and Waiver shall become effective on the
date (the "Waiver Effective Date") when each of Parent, Holdings, the Borrower
and the Required Banks shall have signed a counterpart hereof (whether the same
or different counterparts) and shall have delivered (including by way of
facsimile transmission) the same to the Administrative Agent at the Notice
Office.
6. From and after the Amendment and Waiver Effective Date,
all references in the Amended and Restated Credit Agreement and each of the
other Credit Documents to the Amended and Restated Credit Agreement shall be
deemed to be references to the Amended and Restated Credit Agreement as
modified hereby.
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IN WITNESS WHEREOF, the parties hereto have caused their duly
authorized officers to execute and deliver this Amendment and Waiver as of the
date first above written.
CAPSTAR BROADCASTING CORPORATION
By
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Title:
CAPSTAR BROADCASTING PARTNERS, INC.
By
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Title:
CAPSTAR RADIO BROADCASTING PARTNERS,
INC.
By
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Title:
BANKERS TRUST COMPANY,
Individually and as Administrative
Agent
By
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Title:
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BANKBOSTON, N.A.,
Individually and as Managing Agent
By
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Title:
NATIONSBANK OF TEXAS, N.A.,
Individually and as Syndication Agent
By
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Title:
THE BANK OF NEW YORK,
Individually and as Documentation
Agent
By
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Title:
DRESDNER BANK AG NEW YORK
AND GRAND CAYMAN BRANCHES
By
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Title:
THE FUJI BANK, LIMITED
NEW YORK BRANCH
By
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Title:
9
THE LONG-TERM CREDIT BANK OF
JAPAN
By
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Title:
SOCIETE GENERALE
By
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Title:
UNION BANK
By
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Title:
