Exhibit 4.8
AMENDMENT NO. 2 AND CONSENT
UNDER THE
AGREEMENT
AMENDMENT NO. 2 AND CONSENT (this "Amendment"), dated as of June 19,
1996, under the Credit Agreement, dated as of December 19, 1995, by and among
American Radio Systems Corporation, a Delaware corporation (the "Borrower"), The
Bank of New York, as agent (the "Agent"), Bank of Montreal, Banque Paribas,
Chemical Bank, CIBC Inc., Fleet National Bank and Toronto Dominion (Texas),
Inc., as co-agents (collectively, the "Co-Agents"), and each Lender party
thereto (collectively, the "Lenders"), as amended by Amendment No. 1, dated as
of February 1, 1996 (as amended, the "Agreement"). Capitalized terms used herein
which are defined in the Agreement shall have the same meanings as therein
defined unless otherwise defined herein.
RECITALS
The Borrower has requested that the Agreement be amended to
permit the issuance of certain convertible exchangeable preferred Stock of the
Borrower and to modify certain covenants in the Agreement as hereinafter set
forth.
Accordingly, in consideration of the covenants, conditions and
agreements hereinafter set forth, and for other good and valuable consideration,
the receipt and adequacy of which are hereby acknowledged, the parties hereto
hereby agree as follows:
1. Section 1.1 of the Agreement is amended to add the
following new definitions:
"1996 Convertible Exchangeable Preferred Stock Issuance": the
issuance of convertible exchangeable preferred Stock of the
Borrower having a total liquidation value (including any such
Stock sold pursuant to the over-allotment option of the
initial purchasers) not exceeding $165,000,000, as described
in the Confidential Preliminary Offering Circular, dated June
7, 1996.
"Exchange Subordinated Indenture": in the event that
the Borrower elects to exchange shares of the preferred
Stock issued in connection with the 1996 Convertible
Exchangeable Preferred Stock Issuance for Exchange
Subordinated Indenture Notes, the indenture between the
Borrower and the applicable trustee relating thereto, such
indenture to contain subordination terms with respect to the
Loan Documents at least as favorable to the Agent and the
Required Lenders, the Co-Agents and the Lenders as those
contained in the Subordinated Indenture and to be in form and
substance reasonably satisfactory to the Agent, as the same
may be amended, supplemented or otherwise modified from time
to time in accordance with section 8.20.
"Exchange Subordinated Indenture Notes": the subordinated
notes, issued pursuant to the Exchange Subordinated Indenture,
such subordinated notes to be subordinated to the Loan
Documents at least to the same extent as the Subordinated
Indenture Notes and to be in form and substance reasonably
satisfactory to the Agent and the Required Lenders, as the
same may be amended, supplemented or otherwise modified from
time to time in accordance with section 8.20.
"Exchange Guaranty": guaranties, or more Subordinated
Indenture Subsidiary the subordinated guaranty or if any,
executed and delivered by one of the Restricted Subsidiaries
in with the Exchange Subordinated connection Indenture, each
such subordinated guaranty to be subordinated to the Loan
Documents at least to the same extent as the Subordinated
Indenture Subsidiary Guaranty and to be in form and substance
reasonably satisfactory to the Agent and the Required Lenders,
as the same may be amended, supplemented or otherwise modified
from time to time in accordance with section 8.20.
2. The definition of "Consolidated Annual Operating
Cash Flow" as defined in Section 1.1 of the Agreement is amended
to delete the following:
provided that (i) the aggregate amount of WPBZ Cash Flow, WTIC
Cash Flow and Additional Cash Flow (if any) (collectively, the
("Acquired Station Cash Flow") which is added to Consolidated
Annual Operating Cash Flow pursuant to this sentence shall not
exceed an aggregate amount equal to (1) for the period through
June 30, 1996, 100% of the Acquired Station Cash Flow, (2) for
the period from July 1, 1996 through September 30, 1996, 75%
of the Acquired Station Cash Flow, (3) for the period from
October 1, 1996 through December 31, 1996, 50% of the Acquired
Station Cash Flow and (4) thereafter, 0% of the Acquired
Station Cash Flow, (ii)
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the aggregate amount of Acquired Station Cash Flow which is
added to Consolidated Annual Operating Cash Flow pursuant to
this sentence prior to July 1, 1996 shall not exceed 20% of
the aggregate amount of Consolidated Annual Operating Cash
Flow after giving effect to the addition of such Acquired
Station Cash Flow and (iii) each of the Palm Beach (WPBZ)
Documents, the Hartford (WTIC) Documents and the documents
evidencing any arrangement contemplated by paragraph (c) above
shall be in full force and effect and no default shall exist
thereunder
and to replace it with the following:
provided that (i) the aggregate amount of WPBZ Cash Flow, WTIC
Cash Flow and Additional Cash Flow (if any) (collectively, the
"Acquired Station Cash Flow") which is added to Consolidated
Annual Operating Cash Flow pursuant to this sentence shall not
exceed an aggregate amount equal to (1) for the period through
December 31, 1996, 100% of the Acquired Station Cash Flow and
(2) thereafter, 0% of the Acquired Station Cash Flow, (ii) the
aggregate amount of Acquired Station Cash Flow which is added
to Consolidated Annual Operating Cash Flow pursuant to this
sentence prior to January 1, 1997 shall not exceed 20% of the
aggregate amount of Consolidated Annual Operating Cash Flow
after giving effect to the addition of such Acquired Station
Cash Flow and (iii) each of the Palm Beach (WPBZ) Documents,
the Hartford (WTIC) Documents and the documents evidencing any
arrangement contemplated by paragraph (c) above shall be in
full force and effect and no default shall exist thereunder.
3. The definition of "Fixed Charges" as set forth in
section 1.1 of the Agreement is amended to amend and restate
clause (d) to read as follows:
(d) Restricted Payments made in cash pursuant to and in
accordance with sections 8.4(b) and 8.4(e) (excluding
Restricted Payments made with funds received from the Tower
Subsidiary).
4. The definition of "Senior Debt" as set forth in
section 1.1 of the Agreement is amended and restated in its
entirety to read as follows:
"Senior Borrower" the aggregate Indebtedness of the Borrower
and its Restricted Subsidiaries (other than the Indebtedness
evidenced by the Subordinated Indenture Notes, the
Subordinated Indenture Subsidiary Guaranty,
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the Exchange Subordinated Indenture Notes, and the Exchange
Subordinated Indenture Subsidiary Guaranty) on a Consolidated
basis, determined in accordance with GAAP.
5. Section 8.1 of the Agreement is amended to amend and
restate clauses (v) and (vi) thereof in their entirety to read as
follows:
(v) Indebtedness of the Borrower evidenced by (a) the
Subordinated Indenture Notes and (b) the Exchange Subordinated
Indenture Notes, provided that, in the case of this clause
(b), immediately before and after giving effect to the
incurrence thereof no Default or Event of Default shall exist;
(vi) Indebtedness of the Restricted Subsidiaries evidenced by
the Subordinated Indenture Subsidiary Guaranty and the
Exchange Subordinated Indenture Subsidiary Guaranty.
6. The Lenders hereby consent to the nonapplication of the
finality requirement with respect to the FCC order as set forth in clause (iii)
of the second sentence of section 8.3(b) of the Agreement with respect to each
of the following acquisitions, provided that in each case, immediately prior to
the closing of such acquisition, the applicable FCC order consenting to such
acquisition has not been reversed, stayed, enjoined, set aside, annulled or
suspended and no request with respect to such FCC order has been filed for
administrative or judicial review, reconsideration, appeal or stay:
(i) KJMZ(FM), Las Vegas, Nevada, and the related assets
and other property associated therewith,
(ii) KSTE(AM), Rancho Cordova, California, and the
related assets and other property associated therewith,
(iii) WSJZ(FM), Buffalo, New York, and the related
assets and other property associated therewith, and
(iv) KVEG(AM), Las Vegas, Nevada, and the related assets and
other property associated therewith.
7. Section 8.4 of the Agreement is amended to delete the word
"and" immediately before paragraph (d) therein and to add the following
immediately preceding the period at the end of such section:
; and
(e) the Borrower may declare and pay cash dividends on the
preferred Stock issued pursuant to the 1996 Convertible
Exchangeable Preferred Stock Issuance, provided that,
immediately before and after giving
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effect thereto, no Default or Event of Default shall
exist.
8. Section 8.5(g) of the Agreement is amended and
restated in its entirety to read as follows:
(g) Investments by the Borrower in loans, in an aggregate
outstanding principal amount (excluding accrued interest which
has been added to principal) not in excess of $75,000,000, to
entities to finance the acquisition of broadcasting related
businesses which the Borrower is obligated to, or has an
option to, acquire from such entities (similar to the
arrangements entered into by the Borrower with Ten Eighty
Corporation or Palm Beach Broadcasting) (including, without
limitation, Investments by the Borrower in the WPBZ Loan, the
loan evidenced by the Hartford (WTIC) Notes and the Hartford
$8,500,000 Loan), provided that (i) the acquisitions are
permitted pursuant to section 8.3 (subject, if applicable, to
the last paragraph of section 8.3) and (ii) all notes
evidencing such loans, together with all collateral security
and related agreements delivered to the Borrower in connection
therewith (excluding the Hartford $8,500,000 Notes), are
pledged to the Agent under and in accordance with the Borrower
Security Agreement.
9. The Lenders hereby consent that, notwithstanding anything
to the contrary contained in section 8.7 of the Agreement or elsewhere in the
Agreement, the Borrower may transfer all of its rights and obligations to
acquire WVOR(FM), WPXY(FM), WHAM(AM) and WHTK(AM), all serving Rochester, New
York, to Palm Beach Broadcasting.
10. Section 8.8 of the Agreement is amended to delete clause
(2) therein in its entirety and to renumber clauses "(3)" and "(4)" therein as
clauses "(2)" and "(3)", respectively.
11. Section 8.10 of the Agreement is amended to delete the
amount "$4,000,000" set forth in clause (a) therein and to replace it with the
amount "$8,000,000", and to delete the amount "3,000,000" set forth in clause
(a) therein and to replace it with the amount "$5,000,000".
12. Section 8.12 of the Agreement is amended to
amend and restate clause (iii) in its entirety to read as
follows:
(iii) the prepayment of the Subordinated Indenture
Notes and the Exchange Subordinated Indenture
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Notes, in either case to the extent permitted under section
8.20.
13. Section 8.16 of the Agreement is amended to amend
and restate clause (iii) thereof in its entirety to read as
follows:
(iii) executing, delivering and performing its obligations
under the Subsidiary Guaranty, the Subordinated Indenture
Subsidiary Guaranty and the Exchange Subordinated Indenture
Subsidiary Guaranty.
14. Section 8.19 of the Agreement is amended and
restated in its entirety to read as follows:
8.19 Stock Issuance.
Issue any additional shares of Stock, or permit any
of its Restricted Subsidiaries so to do, except (i) the
Borrower may issue shares of its common Stock or Non
Redeemable Preferred Stock, (ii) the Tower Subsidiary may
issue shares of its Stock to the Borrower and (iii) the
Borrower may issue shares of its preferred Stock pursuant to
the 1996 Convertible Exchangeable Preferred Stock Issuance;
provided that in each case immediately before and after giving
effect thereto no Default or Event of Default shall exist, or
if a Default or Event of Default shall exist, the Borrower
shall prepay the Loans in an amount equal to the net proceeds
received by the Borrower in connection with such issuance of
Stock by the Borrower immediately upon its receipt thereof.
15. Section 8.20 of the Agreement is amended and
restated in its entirety to read as follows:
8.20 Subordinated Indebtedness.
Enter into or agree to any amendment, modification or waiver
of any term or condition of the Subordinated Indenture, the
Subordinated Indenture Notes, the Subordinated Indenture
Subsidiary Guaranty, the Exchange Subordinated Indenture, the
Exchange Subordinated Indenture Notes or the Exchange
Subordinated Indenture Subsidiary Guaranty, or purchase,
redeem or make any payment with respect to Indebtedness under
the Subordinated Indenture Notes, the Subordinated Indenture
Subsidiary Guaranty, the Exchange Subordinated Indenture Notes
or the Exchange Subordinated Indenture Subsidiary Guaranty, or
permit any of its Restricted Subsidiaries so to do, except for
required payments to the extent expressly permitted
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pursuant to the subordination terms set forth therein, and
except as permitted under section 8.1(viii).
16. This Amendment shall become effective as of the date
hereof upon receipt by the Agent of this Amendment executed by a duly authorized
officer or officers of the Borrower, the Agent and the Required Lenders.
17. In all other respects the Agreement and the ..
Documents shall remain in full force and effect.
18. In order to induce the Agent to execute this Amendment and
the Co-Agent and the Lenders to consent thereto, the Borrower hereby (a)
certifies that all representations and warranties contained in the Agreement are
true and correct in all respects as of the date hereof, (b) certifies that,
immediately before and after giving effect to this Amendment, no Default or
Event of Default exists under the Agreement, and (c) agrees to pay the
reasonable fees and disbursements of counsel to the Agent incurred in connection
with the preparation, negotiation and closing of this Amendment.
19. The Borrower hereby (a) reaffirms and admits the validity,
enforceability and continuation of all the Loan Documents to which it is a
party, and its obligations thereunder, and (b) agrees and admits that it has no
valid defenses to or offsets against any of its obligations to the Agent, the
Co-Agents or the Lenders under the Loan Documents to which it is a party.
20. This Amendment may be executed in any number of
counterparts, each of which shall be an original and all of which shall
constitute one agreement. It shall not be necessary in making proof of this
Amendment to produce or account for more than one counterpart signed by the
party to be charged.
21. This Amendment is being delivered in and is intended to be
performed in the State of New York and shall be construed and enforceable in
accordance with, and be governed by, the internal laws of the State of New York
without regard to principles of conflict of laws.
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be duly executed as of the date first above written.
THE BANK OF NEW YORK, individually
and as Agent
By:________________________________
Title:_____________________________
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AMERICAN RADIO SYSTEMS CORPORATION
By:________________________________
Title:_____________________________
AGREED:
BANK OF MONTREAL
By:______________________________
Name:____________________________
Title:___________________________
BANQUE PARIBAS
By:______________________________
Name:____________________________
Title:___________________________
By:______________________________
Name:____________________________
Title:___________________________
CHEMICAL BANK
By:______________________________
Name:____________________________
Title:___________________________
CIBC INC.
By:______________________________
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Name:____________________________
Title:___________________________
FLEET NATIONAL BANK
By:______________________________
Name:____________________________
Title:___________________________
By:______________________________
Name:____________________________
Title:___________________________
TORONTO DOMINION (TEXAS), INC.
By:______________________________
Name:____________________________
Title:___________________________
UNION BANK
By:______________________________
Name:____________________________
Title:___________________________
FIRST UNION NATIONAL BANK OF NORTH
CAROLINA
By:______________________________
Name:____________________________
Title:___________________________
BANQUE NATIONALE DE PARIS
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By:______________________________
Name:____________________________
Title:___________________________
NATIONSBANK OF TEXAS, N.A.
By:______________________________
Name:____________________________
Title:___________________________
LTCB TRUST COMPANY
By:______________________________
Name:____________________________
Title:___________________________
THE SUMITOMO BANK, LIMITED
By:______________________________
Name:____________________________
Title:___________________________
By:______________________________
Name:____________________________
Title:___________________________
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