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EXHIBIT 4.2
FOURTH AMENDMENT, dated as of September 25, 1997 (the "Fourth
Amendment"), to the AMENDED AND RESTATED CREDIT AGREEMENT, dated as of November
19, 1996 (as amended, supplemented or otherwise modified from time to time, the
"Credit Agreement"), among XXXXXX COMMUNICATIONS CORPORATION, a Delaware
corporation (the "Borrower"), the lenders from time to time party thereto (the
"Lenders") and UNION BANK OF CALIFORNIA, N.A., as Agent.
W I N E S S E T H :
WHEREAS, the Borrower has requested the Lenders to permit the sale of
its radio and radio related businesses (the "Radio Group Sale") pursuant to (i)
that certain Asset Purchase Agreement dated as of August 25, 1997, by and among
the Borrower, Clear Channel Metroplex, Inc., Clear Channel Metroplex Licenses,
Inc. and Clear Channel Communications, Inc. (the "Group I Asset Purchase
Agreement") and (ii) that certain Asset Purchase Agreement dated as of August
25, 1997, by and among the Borrower, X.Xxxxxx, Inc., Clear Channel Metroplex,
Inc., Clear Channel Metroplex Licenses, Inc. and Clear Channel Communications,
Inc. (the "Group II-V Asset Purchase Agreement") and together with the Group I
Asset Purchase Agreement and each of the exhibits and schedules annexed thereto,
the "Asset Purchase Agreements"). Clear Channel Metroplex, Inc., Clear Channel
Metroplex Licenses, Inc. and Clear Channel Communications, Inc. are referred to
herein individually and collectively as "Clear Channel". The Radio Group and
related transactions contemplated under the Asset Purchase Agreements are
described in greater detail in Exhibits A and B attached hereto.
WHEREAS, the proceeds from the Radio Group Sale will be used, in part,
to consummate the asset acquisitions (the "Asset Acquisitions") described on
Schedule C attached hereto in connection with the Radio Group Sale, which Radio
Group Sale and Asset Acquisitions are intended by the Borrower to qualify, in
part, as a Section 1031 "like-kind" exchange of assets (a "1031 Exchange")
pursuant to the Internal Revenue Code;
WHEREAS, in connection with such Radio Group Sale and Asset
Acquisitions, the Lenders have requested the Borrower to provide a new business
plan (the "Business Plan") to the Lenders for their approval on or prior to
November 1, 1997, which Business Plan shall describe the assets and business
strategies of the Borrower and its Subsidiaries for the period (the "Business
Plan Period") from such date through the scheduled termination of the Credit
Agreement;
NOW, THEREFORE, in consideration of the premises and of the mutual
agreements herein contained, the parties hereto agree as follows:
1. Definitions. Unless otherwise defined herein, terms defined in the
Credit Agreement shall be used as so defined.
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2. Amendments to Credit Agreement. The provisions contained in
this Section 2 of this Fourth Amendment shall be effective until BP Lender
Approval is obtained, at which point the amendments to the Credit Agreement
contained in this Section 2 of this Fourth Amendment shall cease to be in effect
and the provisions of the Credit Agreement amended by this Section 2 of this
Fourth Amendment shall be in effect as such provisions were in effect prior to
this Fourth Amendment, except as such provisions may be amended, modified or
supplemented subsequent to the date hereof in accordance with the Credit
Agreement.
A. Subsection 1.1 of the Credit Agreement is hereby amended by
adding thereto the following definitions in their appropriate alphabetical
order:
"Asset Acquisitions": as defined in the Fourth Amendment.
"BP Lender Approval": the approval of the Business Plan by the
BP Required Lenders in a manner satisfactory to the Administrative
Agent.
"BP Required Lenders": at a particular time, the holders of at
least 66- 2/3% of the aggregate unpaid principal amount of the Loans,
or, if no Loan are outstanding, Lenders the Commitment Percentages of
which aggregate at least 66- 2/3%.
"Business Plan": as defined in the Fourth Amendment.
"Business Plan Period": as defined in the Fourth Amendment.
"Fourth Amendment": the Fourth Amendment, dated as of
September 25, 1997, to this Agreement.
"Group V Radio Assets": as defined in Exhibit A to the Fourth
Amendment.
"Radio Group Sale": as defined in the Fourth Amendment.
"1031 Exchange": as defined in the Fourth Amendment.
B. Subsection 1.1 of the Credit Agreement is hereby further
amended by inserting immediately after the radio "6.5 to 1.00" in the last line
of the definition of "Applicable Margin" the following:
"; provided, further, that from October 1, 1997, the
Applicable Margin for Eurodollar Loans shall be 3.00% and for Base Rate
Loans shall be 1.75%; provided, further, however, that if BP Lender
Approval is not obtained prior to December 20, 1997, the Applicable
Margin shall increase to 3.50%, 4.00%, 4.50% and 5.00% for Eurodollar
Loans and to 2.25%, 2.75%, 3.25% and 3.75% for Base Rate
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Loans on the first date of each fiscal quarter of the Borrower
thereafter for each of the subsequent four fiscal quarters of the
Borrower respectively".
C. Subsection 1.1 of the Credit Agreement is hereby further
amended by inserting immediately after the words "Schedule 1.1C" where they
appear in the definition of "Preapproved Acquisition" the following:
"and each of the Asset Acquisitions."
D. Subsection 2.6(c) of the Credit Agreement is hereby amended
by inserting immediately after the word "debt" in the first and third lines
thereof the words "or equity".
E. Section 5 of the Credit Agreement is hereby amended by
inserting at the end of such Section the following subsection 5.14:
"5.14 Business Plan. Deliver to the Lenders on or before
November 1, 1997, a business Plan reasonably satisfactory to the BP
Required Lenders; provided that such Business Plan will not be
reasonably satisfactory to the BP Required Lenders unless it (a)
indicates that the Borrower and its Subsidiaries will be in compliance
with the provisions of this Agreement (including but not limited to
subsection 6.1) during the Business Plan Period, (b) specifies that,
but for the Radio Group Sale, the assets of the Borrower and its
Subsidiaries during the Business Plan Period shall be comparable to the
assets of the Borrower and its Subsidiaries before the Radio Group Sale
and such assets of the Borrower and its Subsidiaries shall be used in a
manner consistent with the use of the assets of the Borrower and its
Subsidiaries before the Radio Group Sale, unless the BP Required
Lenders agree otherwise and (c) is based on financial assumptions that
are reasonable in light of the historic financial performance of
comparable assets owned by the Borrower on the date hereof."
F. Subsection 6.2(g) of the Credit Agreement is hereby amended
by inserting immediately at the end of such subsection the following:
" provided, further, that after September 30, 1997 neither the
Borrower nor any of its Subsidiaries shall directly or indirectly
create, incur, assume, guaranty or otherwise become directly or
indirectly liable with respect to any unsecured Indebtedness not
outstanding on such date;".
G. Subsection 6.2(i) of the Credit Agreement is hereby amended
by inserting immediately at the end of such subsection the following:
" provided, further, that after September 30, 1997 neither the
Borrower nor any of its Subsidiaries shall directly or indirectly
create, incur, assume, guaranty or otherwise become directly or
indirectly liable with respect to any Exchangeable Preferred Stock not
outstanding on such date;".
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H. Subsection 6.4(d) of the Credit Agreement is hereby amended
by deleting the amount "$35,000,000" in the second line thereof and substituting
in lieu thereof the amount "$10,000,000".
I. Subsection 6.4(j) of the Credit Agreement is hereby amended
by inserting immediately at the end of such subsection the following:
"provided that after September 30, 1997 no Permitted
Acquisitions shall be permitted;".
J. Subsection 6.4(i) of the Credit Agreement is hereby amended
by inserting immediately after the ";" in the last line of such subsection the
following:
" provided, further, that after September 30, 1997 neither the
Borrower nor any Subsidiary shall make any additional Investment
arising from the acquisition of any Equivalent Assets in connection
with any Asset Swap".
K. Subsection 6.4 of the Credit Agreement is hereby amended by
(a) deleting the word "and" where it appears in the last line of subsection
6.4(l), (b) deleting the "." in the last line of subsection 6.4(m) and
substituting in lieu thereof "; and", and (c) inserting at the end of subsection
6.4 the following subsection 6.4(n):
"(n) Upon the sale by the Borrower of the High Basis Radio
Assets (as such term is defined in the Credit Agreement, dated as of
July 11, 1997, among Travel Channel Acquisition Corporation, the
lenders from time to time parties thereto and Union Bank of California,
N.A. (the "Travel Channel Credit Agreement")), the proceeds of such
sale shall be invested by the Borrower in Travel Channel Acquisition
Corporation to repay all outstanding principal, interest, fees and
other amounts due pursuant to the Travel Channel Credit Agreement (the
total amount of which shall not exceed $23,000,000)."
L. Subsection 6.5(f) of the Credit Agreement is hereby amended
by deleting the amount "$65,000,000" in the fourth line thereof and substituting
in lieu thereof the amount "$25,000,000".
M. Subsection 6.6(b) of the Credit Agreement is hereby amended
by inserting immediately at the end of such subsection the following:
"provided, further, that after September 30, 1997 no such
Restricted Payments shall be permitted;".
N. Subsection 6.6(f) of the Credit Agreement is hereby amended
by inserting immediately at the end of such subsection the following:
"provided that after September 30, 1997 no such redemption
shall be permitted;".
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O. Subsection 6.7(b) of the Credit Agreement is hereby amended
by inserting immediately at the end of such subsection the following:
"provided that after September 301, 997 no further Asset Sales
shall be permitted other than the Radio Group Sale and, to the extent
the conditions set forth in clauses (w), (x) and (z) are satisfied,
sales of WSRF-AM, Ft. Lauderdale, Florida, WCEE-TV, St. Louis,
Missouri, WILV-TV, Grand Rapids, Michigan, billboards located in Tampa,
Florida and interests in two inactive sports team franchises (arena
football and minor league hockey);".
P. Subsection 6.7(e) of the Credit Agreement is hereby amended
by inserting immediately at the end of such subsection the following:
"provided, further, that after September 30, 1997 no
additional Asset Swap shall be permitted;".
3. Further Amendment to Credit Agreement.
A. Subsection 1.1 of the Credit Agreement is hereby amended by
deleting the words "for the 1997 fiscal year of the Borrower" in the last
sentence of the definition of "Leverage Ratio" and substituting in lieu thereof
the words "before December 31, 1997".
B. Subsection 2.6(d) of the Credit Agreement is hereby amended
by inserting immediately at the end of such subsection the following:
"provided, further, that any Net Cash Proceeds from the Radio
Group Sale may be used to effectuate a 1031 Exchange and any other Net
Cash Proceeds from the Radio Group Sale may be used for any other
purpose permitted by this Agreement, including to consummate any
Preapproved Acquisitions, and any such Net Cash Proceeds remaining
after the expiration of the 180 day period for the consummate of a 1031
Exchange shall be applied to prepay the Loans, and, prior to BP Lender
Approval, may not be reborrowed notwithstanding anything to the
contrary contained in this Agreement.
4. Amendment Fee. The Borrower hereby agrees to pay a fee in an
amount equal to 0.10% of such Lender's Commitment to each Lender that approves
this Fourth Amendment by executing and delivering to the Administrative Agent
or its counsel said Amendment on or before September 25, 1997.
5. Effective Date. This Fourth Amendment will become effective
as of the date (the "Effective Date") hereof upon its execution by the Borrower
and the Required Lenders in accordance with the terms of the Credit Agreement.
6. Representations and Warranties. The Borrower represents and
warrants to each Lender that (a) this Fourth Amendment constitutes the legal,
valid and binding obligation of the Borrower, enforceable against it in
accordance with its terms, except as such
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enforcement may be limited by bankruptcy, insolvency, fraudulent conveyances,
reorganization, moratorium or similar laws affecting creditors' rights
generally, by general equitable principles (whether enforcement is sought by
proceedings in equity or at law) and by an implied covenant of good faith and
fair dealing, (b) the representations and warranties made by the Loan Parties in
the Loan Documents are true and correct in all material respects on and as of
the date hereof (except to the extent that such representations and warranties
are expressly stated to relate to an earlier date, in which case such
representations and warranties shall have been true and correct in all material
respects on and as of such earlier date) and (c) no Default or Event of Default
has occurred and is continuing as of the date hereof.
7. Continuing Effect. Except as expressly waived or amended hereby,
the Credit Agreement shall continue to be and shall remain in full force and
effect in accordance with its terms.
8. GOVERNING LAW. THIS FOURTH AMENDMENT SHALL BE GOVERNED BY, AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
9. Counterparts. This Fourth Amendment may be executed by the parties
hereto in any number of separate counterparts and all of said counterparts taken
together shall be deemed to constitute one and the same instrument.
10. Payment of Expenses. The Borrower agrees to pay and reimburse the
Agent for all of its out-of-pocket costs and reasonable expenses incurred in
connection with this Fourth Amendment, including, without limitation, the
reasonable fees and disbursements of counsel to the Agent.
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IN WITNESS WHEREOF, the parties hereto have caused this Fourth
Amendment to be duly executed and delivered by their properly and duly
authorized officers as of the day and year first above written.
XXXXXX COMMUNICATIONS
CORPORATION
By: /s/ Xxxxxx Tele
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Title: Treasurer
UNION BANK OF CALIFORNIA, N.A., as
Agent
By: /s/ Xxxxxxxxx X. Xxxx
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Title: Vice President
THE BANK OF NEW YORK
By: /s/
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Title: Senior Vice President
CIBC, INC.
By: /s/
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Title: Director, CIBC WOOD GUNBY
SECURITIES CORP., AS AGENT
THE FIRST NATIONAL BANK OF BOSTON
By: /s/
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Title:
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XXXXX XXXXX XXXXXXXX XXXX XX XXXXX
XXXXXXXX
By: /s/
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Title: SVP
ARN-AMRO BANK N.W.
ABN AMRO NORTH AMERICA, INC.
By: /s/
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Title: GVP
BANK OF AMERICA ILLINOIS
By: /s/
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Title: Managing Director
BANK OF MONTREAL
By: /s/
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Title: Director
XXXXXXX BANK, N.A.
By: /s/
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Title: Vice President
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FLEET NATIONAL BANK
By: /s/ Xxxxxx X. Xxxxx
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Title: Senior Vice President
LTCB TRUST COMPANY
By: /s/
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Title: Senior Vice President
THE SUMITOMO BANK, LIMITED
By: /s/ Xxxxx X. Xxxxxxx, Xx.
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Title: VICE PRESIDENT & MGR.
By: /s/ M. Xxxxxxx Xxxxxxx
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Title: VICE PRESIDENT
SUNTRUST BANK, CENTRAL FLORIDA, N.A.
By: /s/ Xxxxx X. Xxxxxx
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Title: Vice President
