EXHIBIT 10.1 AMENDMENT NO. 1 AND WAIVER dated as of September 24, 2002 (this "Amendment"), to the Credit Agreement dated as of March 28, 2002 (the "Credit Agreement"), among Cumulus Media Inc., an Illinois corporation (the "Borrower"); the financial...
EXHIBIT 10.1
AMENDMENT NO. 1 AND WAIVER dated as of
September 24, 2002 (this "Amendment"), to the Credit
Agreement dated as of March 28, 2002 (the "Credit
Agreement"), among Cumulus Media Inc., an Illinois
corporation (the "Borrower"); the financial
institutions party thereto as Lenders (the
"Lenders"); and JPMorgan Chase Bank, as
administrative agent (in such capacity, the
"Administrative Agent").
A. The Lenders have extended credit to the Borrower, and have
agreed to extend credit to the Borrower, in each case pursuant to the terms and
subject to the conditions set forth in the Credit Agreement.
B. The Borrower has requested that the Required Lenders agree
to amend and waive certain provisions of the Credit Agreement as set forth
herein. The Required Lenders are willing to agree to such amendments and waivers
pursuant to the terms and subject to the conditions set forth herein.
C. Capitalized terms used but not defined herein have the
meanings assigned to them in the Credit Agreement as amended and waived hereby.
Accordingly, in consideration of the mutual agreements herein
contained and other good and valuable consideration, the sufficiency and receipt
of which are hereby acknowledged, the parties hereto agree as follows:
SECTION 1. Amendment. The definition of the term
"Consolidated Interest Expense" in Section 1.01 of the Credit Agreement is
hereby amended by adding before the period at the end thereof the following:
; provided that Consolidated Interest Expense shall not include
pursuant to clause (a)(iv) hereof any dividends paid in cash on the
Series A Preferred Stock up to $4,500,000 in any fiscal quarter,
commencing with the fiscal quarter ended June 30, 2002 and ending with
the fiscal quarter ending June 30, 2003
SECTION 2. Waiver. The Required Lenders hereby waive
compliance by the Borrower with the provisions of Section 6.13 of the Credit
Agreement with respect to the period ended June 30, 2002, but only to the extent
that no Default would have occurred under such Section if this Amendment had
been effective as of such date.
SECTION 3. Representations and Warranties. The Borrower
represents and warrants to the Administrative Agent and to each of the Lenders
that:
(a) This Amendment has been duly authorized, executed and
delivered by it and constitutes the legal, valid and binding obligation
of the Borrower, enforceable against the Borrower 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.
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(b) On and as of the Amendment Effective Date, the
representations and warranties set forth in Article III of the Credit
Agreement are true and correct in all material respects with the same
effect as if made on the Amendment Effective Date.
(c) At the time of and immediately after giving effect to this
Amendment, no Default has occurred and is continuing.
SECTION 4. Conditions to Effectiveness. This Amendment shall
become effective as of the date (such date, the "Amendment Effective Date") that
the Administrative Agent (or its counsel) shall have received counterparts of
this Amendment that, when taken together, bear the signatures of the Borrower
and the Required Lenders.
SECTION 5. Effect of Amendment. Except as expressly set forth
herein, this Amendment shall not by implication or otherwise limit, impair,
constitute a waiver of, or otherwise affect the rights or remedies of the
Lenders under the Credit Agreement or any other Loan Document, and 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 Amendment shall apply and be effective
only with respect to the provisions of the Credit Agreement set forth herein.
This Amendment shall constitute a Loan Document for all purposes under the
Credit Agreement.
SECTION 6. APPLICABLE LAW. THIS AMENDMENT SHALL BE GOVERNED
BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
SECTION 7. Counterparts. This Amendment may be executed in two
or more counterparts, each of which shall constitute an original but all of
which when taken together shall constitute but one agreement. Delivery of an
executed signature page to this Amendment by facsimile shall be effective as
delivery of a manually executed counterpart hereof.
SECTION 8. Expenses. The Borrower agrees to reimburse the
Administrative Agent for its out-of-pocket expenses in connection with this
Amendment, including the reasonable fees, charges and disbursements of Cravath,
Swaine & Xxxxx, counsel for the Administrative Agent.
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IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be duly executed by their respective authorized officers as of the
day and year first written above.
CUMULUS MEDIA INC.,
by
/s/ Xxxxxx Xxxxxxx
--------------------------------------
Name: Xxxxxx Xxxxxxx
Title: EVP, CFO & Treasurer
JPMORGAN CHASE BANK, individually and
as Administrative Agent,
by
/s/ Xxxx X. Xxxxxxxxxx
--------------------------------------
Name: Xxxx X. Xxxxxxxxxx
Title: Managing Director
AMMC CDO II, LIMITED,
by AMERICAN MONEY MANAGEMENT
CORP., as Collateral Manager,
by
/s/ Xxxxx X. Xxxxx
-------------------------------------
Name: Xxxxx X. Xxxxx
Title: Vice President
BANK OF AMERICA N.A.,
by
/s/ Xxxxxx X. Xxxxxxx
-------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Principal
CIBC WORLD MARKETS CORP.,
by
/s/ Xxxxx Xxxxxxx
-------------------------------------
Name: Xxxxx Xxxxxxx
Title: Executive Director
4
CIT LENDING SERVICES CORPORATION,
by
/s/ Xxxxxxxx Xxxx
-------------------------------------
Name: Xxxxxxxx Xxxx
Title: Vice President
CREDIT LYONNAIS NEW YORK BRANCH,
by
/s/ Xxxxxxx X. Xxxxx
-------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: First Vice President
DEBT STRATEGIES FUND, INC.,
by
/s/ Xxxxxx Xxxxxxxx
-------------------------------------
Name: Xxxxxx Xxxxxxxx
Title: Authorized Signatory
FLEET NATIONAL BANK,
by
/s/ Xxxxx Xxxxxxxx
-------------------------------------
Name: Xxxxx Xxxxxxxx
Title: Vice President
ING CAPITAL LLC,
by
/s/ Xxxxxxx Xxxxx
-------------------------------------
Name: Xxxxxxx Xxxxx
Title: Director
ING PRIME RATE TRUST,
by ING INVESTMENTS, LLC, as its
investment manager,
by
/s/ Xxxxxxx X. Xxxxxxx
-------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Senior Vice President
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ING SENIOR INCOME FUND,
by ING INVESTMENTS, LLC, as its
investment manager,
by
/s/ Xxxxxxx X. Xxxxxxx
-------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Senior Vice President
LONGHORN CDO (CAYMAN) LTD.,
by XXXXXXX XXXXX INVESTMENT
MANAGERS, L.P., as Investment Advisor,
by
/s/ Xxxxxx Xxxxxxxx
-------------------------------------
Name: Xxxxxx Xxxxxxxx
Title: Authorized Signatory
LONGHORN CDO II, LTD.,
by XXXXXXX XXXXX INVESTMENT
MANAGERS, L.P., as Investment Advisor,
by
/s/ Xxxxxx Xxxxxxxx
-------------------------------------
Name: Xxxxxx Xxxxxxxx
Title: Authorized Signatory
MARINER CDO 2002, LTD.,
by
/s/ Xxxxx Xxxxx
-------------------------------------
Name: Xxxxx Xxxxx
Title: Vice President
XXXXXXX XXXXX PRIME RATE
PORTFOLIO,
by XXXXXXX XXXXX INVESTMENT
MANAGERS, L.P., as Investment Advisor,
by
/s/ Xxxxxx Xxxxxxxx
-------------------------------------
Name: Xxxxxx Xxxxxxxx
Title: Authorized Signatory
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NATEXIS BANQUES POPULAIRES,
by
/s/ Xxxx X. Xxxxx
-------------------------------------
Name: Xxxx X. Xxxxx
Title: Vice President
by
/s/ Xxxxxxx X. Xxxxx
-------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Vice President, Group Manager
NATIONAL CITY BANK,
by
/s/ Xxxxxxxxx Xxxxxxxx
-------------------------------------
Name: Xxxxxxxxx Xxxxxxxx
Title: Senior Vice President
OAK HILL SECURITIES FUND, L.P.,
by OAK HILL SECURITIES GENPAR, L.P.,
its General Partner,
by OAK HILL SECURITIES MGP, INC.,
its General Partner,
by
/s/ Xxxxx X.Xxxxx
-------------------------------------
Name: Xxxxx X. Xxxxx
Title: Authorized Signatory
OAK HILL SECURITIES FUND II, L.P.,
by OAK HILL SECURITIES GENPAR II,
L.P., its General Partner,
by OAK HILL SECURITIES MGP II,
INC., its General Partner,
by
/s/ Xxxxx X.Xxxxx
-------------------------------------
Name: Xxxxx X. Xxxxx
Title: Authorized Signatory
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OAK HILL CREDIT PARTNERS I, LIMITED,
by OAK HILL CLO MANAGEMENT, LLC,
as Investment Manager,
by
/s/ Xxxxx X.Xxxxx
-------------------------------------
Name: Xxxxx X. Xxxxx
Title: Authorized Signatory
OAK HILL CREDIT PARTNERS II,
LIMITED,
by OAK HILL CLO MANAGEMENT, LLC,
as Investment Manager,
by
/s/ Xxxxx X.Xxxxx
-------------------------------------
Name: Xxxxx X. Xxxxx
Title: Authorized Signatory
SANKATY HIGH YIELD PARTNERS II, L.P.,
by
/s/ Xxxxx X. Xxxxx
-------------------------------------
Name: Xxxxx X. Xxxxx
Title: Managing Director, Portfolio
Manager
SANKATY ADVISORS, LLC, as Collateral
Manager for CASTLE HILL I - INGOTS,
LTD., as Term Lender,
by
/s/ Xxxxx X. Xxxxx
-------------------------------------
Name: Xxxxx X. Xxxxx
Title: Managing Director, Portfolio
Manager
SANKATY ADVISORS, LLC, as Collateral
Manager for GREAT POINT CLO 1999-1
LTD., as Term Lender,
by
/s/ Xxxxx X. Xxxxx
-------------------------------------
Name: Xxxxx X. Xxxxx
Title: Managing Director, Portfolio
Manager
8
SANKATY ADVISORS, LLC, as Collateral
Manager for RACE POINT CLO, LIMITED, as
Term Lender,
by
/s/ Xxxxx X. Xxxxx
-------------------------------------
Name: Xxxxx X. Xxxxx
Title: Managing Director, Portfolio
Manager
SANKATY HIGH YIELD PARTNERS III,
L.P.,
by
/s/ Xxxxx X. Xxxxx
-------------------------------------
Name: Xxxxx X. Xxxxx
Title: Managing Director, Portfolio
Manager
XXXXXXXXX ARBITRAGE CDO, LTD.,
by XXXXXXXXX CAPITAL PARTNERS
LLC, as its Collateral Manager,
by
/s/ Xxxxxxxxxxx X. Xxxxxx
-------------------------------------
Name: Xxxxxxxxxxx X. Xxxxxx
Title: Managing Partner
SUNTRUST BANK,
by
/s/ J. Xxxx Xxxxxxx
-------------------------------------
Name: J. Xxxx Xxxxxxx
Title: Director
TORONTO DOMINION (NEW YORK), INC.,
by
/s/ Xxxxx X. Xxxxxx
-------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President
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U.S. BANK NATIONAL ASSOCIATION,
by
/s/ Xxxxxxxxx X. Xxxxxx
-------------------------------------
Name: Xxxxxxxxx X. Xxxxxx
Title: Vice President
