CONSENT AND AMENDMENT
March 24, 1997
To the Banks Parties to the
Credit Agreement referred to below
Gentlemen:
We refer to the Second Amended and Restated Credit Agreement
dated as of November 22, 1996 (the "Credit Agreement") among SFX
Broadcasting, Inc. (the "Borrower"), the Subsidiaries of the Borrower from
time to time parties thereto, the Lenders from time to time parties thereto
and The Bank of New York, as Agent (the "Agent"), as amended by the First
Amendment to the Second Amended and Restated Credit Agreement dated as of
January 22, 1997. Unless otherwise defined herein, the terms defined in the
Credit Agreement shall be used herein as therein defined.
We have notified the Agent that we have entered into an
agreement to acquire four radio stations in Pittsburgh, Pennsylvania
(WDVE-FM, WXDX-FM, WDSY-FM and WJJJ- FM) and three radio stations in
Indianapolis, Indiana (WFBQ-FM, WRZX-FM and WNDE-AM) from Secret
Communications, L.P., a Delaware limited partnership (the "Stations").
Pursuant to Section 6.14(c) of the Credit Agreement relating
to Permitted Acquisitions, the Borrower may make a Permitted Acquisition so
long as no Default or Event of Default would exist before and after giving
effect to such Permitted Acquisition. Pursuant to the
definition of "Permitted Acquisition" set forth in Section 1.1 of the Credit
Agreement, the Borrower is required to obtain the approval of the Required
Lenders for any acquisition not specifically referenced in such definition. In
that the acquisition of the Stations is not so referenced, we hereby request
your consent in order that the Borrower may acquire the Stations as described
above.
We have also notified the Agent that we, together with a
wholly-owned subsidiary, SFX Holdings, Inc., a Delaware corporation, have
entered into a separate agreement with EZ Communications, Inc., a Virginia
corporation, Professional Broadcasting, Incorporated, a Virginia corporation,
and EZ Philadelphia, Inc., a Virginia corporation, to exchange one of the
stations being acquired in Pittsburgh, Pennsylvania (WDSY-FM) and $20 million
cash for WRFX-FM located in Kannapolis, North Carolina and serving the
Charlotte, North Carolina market (the "Exchange"). Pursuant to Section 6.14(b)
of the Credit Agreement the Borrower is prohibited from directly or indirectly
exchanging any of its assets except as specifically referenced in Section
6.14(b) and so long as no Default or Event of Default would exist before or
after giving effect thereto. In that the Exchange is not so referenced, we
hereby request that you consent to the amendment of the Credit Agreement by
deleting Section 6.14(b) therein in its entirety and inserting in lieu thereof
the following:
"(b) Exchange of Assets. No Obligor shall, directly or
indirectly, exchange any of its assets except as permitted by Section 6.5, and
so long as no Default or Event of Default would exist before or after giving
effect thereto, other than:
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(i) KRLD-AM and the Texas State Networks in
Dallas, Texas for KKRW-FM in Houston, Texas;
(ii) WBAB-FM, WHFM-FM, WBLI-FM and WGBB-AM in
Long Island for stations WFYW-FM and WAPE-FM in Jacksonville, Florida;
(iii) KTXQ-FM and KRRW-FM in Dallas, Texas for
station WHFS-FM serving Washington DC/Baltimore, Maryland; and
(iv) WDSY-FM in Pittsburgh, Pennsylvania and
$20 million cash for WRFX-FM located in Kannapolis, North Carolina and serving
the Charlotte, North Carolina market; and
(v) other assets provided that:
(A)(1) the BCF attributable to all radio
broadcast stations sold and/or exchanged
during the one-year period ending on the
date of the proposed exchange shall not
exceed 15% of the BCF of the Borrower;
(2) the BCF attributable to all radio
broadcast stations sold and/or
exchanged since the date of this
Agreement, after giving effect to the
proposed exchange, shall not exceed
25% of the BCF of the Borrower;
(3) fair value is received by any of
the Obligors; and
(4) at least 75% of the consideration
to be received by any of the Obligors is
in the form of a radio broadcast station
or other assets used in the broadcast of
radio programming and/or cash or cash
equivalents.
(B) the assets received by any of the
Obligors pursuant to such exchanges
qualify as a Permitted Acquisition.
In that the Credit Agreement does not provide for
investments in Subsidiaries organized in connection with an Exchange of
Assets, we hereby request that you consent to the amendment of the Credit
Agreement by deleting in its entirety the definition of "Permitted
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Investments" set forth in Section 1.1 of the Credit Agreement and inserting in
lieu thereof the following:
"Permitted Investments" means (a) investments in obligations
of the United States of America maturing within one year from the
date of acquisition, (b) certificates of deposit issued by commercial
banks organized under the Laws of the United States of America or any
state thereof and having a combined capital, surplus and undivided
profits of not less than $100,000,000, (c) investments in commercial
paper, maturing not more than 90 days after the date of issue, issued
by a Person (other than an Affiliate) with a rating of "P-1" (or its
then equivalent) according to Xxxxx'x Investors Service, Inc., "A- 1"
(or its then equivalent) according to Standard & Poor's Corporation,
or a better rating, (d) investments in Wholly-Owned Subsidiaries
identified on Schedule 4.4(D), in Wholly- Owned Subsidiaries
organized in connection with Permitted Acquisitions and in Wholly-
Owned Subsidiaries organized in connection with an exchange of assets
as permitted by Section 6.14(b), and (e) the investment in ABS equal
to at least a 96% interest therein.
In addition, we hereby request that you consent to amendment
of the Credit Agreement by deleting in its entirety Section 5.13 thereof and
inserting in lieu thereof the following:
"Section 5.13 Further Documentation. In the event that
stations WBAB-FM, WHFM-FM, WBLI-FM and WGBB-AM in Long Island shall
not be exchanged as permitted by and in accordance with Section
6.14(b)(ii) within 270 days from the date hereof, Borrower shall
cause to be promptly delivered to the Agent, the documents described
in Section 3.1(c), and such other documentation as the Agent may from
time to time, in its discretion request, all in form and substance
satisfactory to the Agent."
We also request that you consent to the amendment of the
Credit Agreement by deleting in its entirety Section 4.29 thereof and
inserting in lieu thereof the following:
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"Section 4.29 License Subsidiaries. Except as set forth in
Schedule 4.29, all FCC licenses and other authorizations relating to
the Stations and all FCC licenses and other authorizations relating
to any other stations acquired in connection with a Permitted
Acquisition or asset exchange are held by their respective License
Subsidiaries. In the case of those stations set forth on Schedule
4.29 and those stations acquired in connection with a Permitted
Acquisition or asset exchange, Borrower shall cause by the later of
(i) April 30, 1997 or (ii) 60 days after such acquisition, all FCC
licenses and other authorizations relating to such stations to be
held by their respective License Subsidiaries. No License Subsidiary
(a) owns or holds any assets (including the ownership of stock or any
other interest in any Person) other than Operating Agreements and FCC
licenses and other authorizations relating to the Stations and
Operating Agreements and FCC licenses and other authorizations
relating to any other stations acquired in connection with Permitted
Acquisitions, (b) is engaged in any business other than the holding,
acquisition and maintenance of FCC licenses and other authorizations,
(c) has any investments in any other Person or (d) owes any Debt to
any Person other than Intercompany Debt."
We also request that you consent to the amendment of the
Credit Agreement by deleting in its entirety Section 6.25(e) thereof and
inserting in lieu thereof the following:
"(e) From and after April 30, 1997 (or if an Operating
Subsidiary is formed or acquired by the Borrower after the date
hereof, from and after the date which is 60 days after such formation
or acquisition), no Operating Subsidiary shall operate, manage or
direct the day-to-day operations of any Station or any station
acquired pursuant to a Permitted Acquisition or a permitted asset
exchange unless it has entered into an Operating Agreement with a
License Subsidiary and such Operating Agreement is in full force and
effect."
Moreover, we hereby request you consent to the substitution
of Schedule 1.1(D) of the Credit Agreement with Schedule 1.1(D) hereto.
Please evidence your consent to these requests by executing
and returning at least two counterparts of this Consent to the Agent's
counsel, Xxxxxxxx and Xxxxxxxx, 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
attention of Xxxxx Xxxxxxxxxxx, facsimile no. (212) 558-
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3567. This consent shall become effective when and if (a) counterparts of this
Consent shall have been executed by the Required Lenders and (b) the Borrower
shall have complied with the provisions of Section 5.12 of the Credit
Agreement regarding New Subsidiaries. This consent is subject to the
provisions of Section 10.10(c) relating to waivers and consents in respect of
Credit Agreement.
Very truly yours,
SFX BROADCASTING, INC.
By: /s/ Xxxxxx X. Xxxxx
---------------------------
Xxxxxx X. Xxxxx
Executive Vice President
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Agreed as of the date
first written above:
THE BANK OF NEW YORK
By /s/
--------------------------
Title: Vice President
BANK OF TOKYO-MITSUBISHI TRUST COMPANY
By /s/
---------------------------
Title: Vice President
BANKERS TRUST COMPANY
By /s/ Xxxx X. Xxxxxxxx
---------------------------
Xxxx X. Xxxxxxxx
Title: Vice President
BANK OF MONTREAL
By /s/ Xxxxxxx Xxxxxx
---------------------------
Xxxxxxx Xxxxxx
Title: Managing Director
BANQUE NATIONALE DE PARIS
By /s/
---------------------------
Title: Vice President
BANQUE NATIONALE DE PARIS
By /s/
---------------------------
Title: Vice President
7
CIBC, INC.
By /s/
-----------------------------------
Title: Director, CIBC Wood Gundy
Securities Corp., as Agent
CORESTATES BANK N.A.
By /s/
------------------------------------
Title: Vice President
THE FUJI BANK, LIMITED, NEW YORK
By /s/ Xxxxx Xxxxxxxx
-------------------------------------
Xxxxx Xxxxxxxx
Title: Vice President & Manager
XXXXXX COMMERCIAL PAPER INC.
By /s/ Xxxxxx X. Xxx
-------------------------------------
Xxxxxx X. Xxx
Title: Authorized Signatory
NATIONAL BANK OF CANADA
By /s/
-------------------------------------
Title: Vice President
NATIONAL BANK OF CANADA
By /s/
-------------------------------------
Title: Vice President
8
NATIONAL CITY BANK
By /s/
---------------------------------------
Title: Account Officer
SOCIETE GENERALE
By /s/ Xxxx Xxxxxx
----------------------------------------
Xxxx Xxxxxx
Title: Vice President
SOUTHERN PACIFIC THRIFT & LOAN ASSOCIATION
By /s/
----------------------------------------
Title: Senior Vice President
THE SUMITOMO BANK, LIMITED
By /s/
----------------------------------------
Title: Vice President
THE SUMITOMO BANK, LIMITED
By /s/ Xxxxx X. Xxxxx
----------------------------------------
Xxxxx X. Xxxxx
Title: Senior Vice President &
Regional Manager (East)
9
SUNTRUST BANK, CENTRAL FLORIDA, N.A.
By /s/
---------------------------------------
Title: First Vice President
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SCHEDULE 1.1(D)
PERMITTED DEBT
1. Note payable to Xxxx Xxxxxx from SFX Broadcasting, Inc. for the purchase of the assets
and broadcast license of WKTF in Jackson, MS entered into in December, 1993. Balance
of $597,717.
2. Note payable to Carolina First Bank from SFX Broadcasting, Inc. for satellite equipment
in Greenville, SC entered into in April, 1993. Balance of $20,050.
3. Capital lease between Metropolitan Broadcasting of Dallas, Inc. and IBM Credit Corp.
for a mini computer in Dallas, TX entered into in June, 1992. Balance of $28,656.
4. Capital lease between Metropolitan Broadcasting of Dallas, Inc. and Xxxxx Financial for
computer equipment and software in Dallas, TX entered into in February, 1993. Balance
of $37,066.
5. Capital lease between SFX Broadcasting, Inc. and Tokai Financial for modular furniture
in Dallas, TX entered into in May, 1995. Balance of $54,844.
6. Capital lease between SFX Broadcasting, Inc. and IBM Credit Corp. for mini computer in
Jackson, MS entered into in January, 1994. Balance of $18,608.
7. Note payable between Capstar Communications of South Carolina (WMYI), Inc. and
Carolina First Bank for a vehicle in Greenville, SC entered into in August, 1993. Balance
of $5,910.
8. Note payable between Capstar Communications of South Carolina (WMYI), Inc. and
Carolina First Bank for computer equipment in Greenville, SC entered into in April,
1993. Balance of $8,224.
9. Capital lease between SFX Broadcasting, Inc. and IBM Credit Corp. for mini computer in
Greenville, SC entered into in March, 1994. Balance of $19,438.
10. Capital lease between Capstar Communications Inc. and Devon Capital Corp. for
broadcasting equipment in Nashville, TN entered into in January, 1992. Balance of
$3,749.
11. Capital lease between SFX Broadcasting, Inc. and IBM Credit Corp. for mini computer in
Nashville, TN entered into in December, 1993. Balance of $21,746.
12. Letter of credit between SFX Broadcasting, Inc. and Chemical Bank payable to 000 X.
00xx Xx. Partners with respect to leased space in New York, NY. Balance of $125,000.
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13. Notes payable to Texas Stadium Corporation for two stadium suites in Dallas, TX entered
into in August, 1989. Balance of $644,818.
14. Capital lease between SFX Broadcasting, Inc. and Priority Leasing for satellite equipment
in Dallas, TX entered into in July, 1995. Balance of $287,078.
15. Capital lease between BB&T Leasing Company and SFX Broadcasting, Inc. for furniture
in Charlotte, NC entered into in March, 1996. Balance of $100,738.
16. Capital leases between Creative Financial Service and WMXB for a 1993
- Plymouth Grand Voyager in Richmond, VA entered into in July, 1993.
Balance of $8,000.
17. Capital leases between AT&T and WGNA for a Merlin Phone System in Latham, NY
entered into in August, 1993. Balance of $7,011.
18. Capital leases between AT&T and WPYX for a Merlin Phone System in Latham, NY
entered into in June, 1996. Balance of $37,186.
19. Notes payable to Wachovia Bank of South Carolina, NA for a vehicle in Greenville, SC
entered into in April, 1996. Balance of $33,275.
20. Capital leases between NEC America, Inc. and SFX Broadcasting, Inc. for phone
equipment in San Diego, CA entered into in May, 1995. Balance of $25,155.52.
21. Capital leases between Ford Financial Services, Inc. and SFX Broadcasting, Inc. for
furniture in San Diego, CA entered into in July, 1995. Balance of $38,343.
22. Capital leases between Capelco Capital, Inc. and SFX Broadcasting, Inc. for office
equipment in San Diego, CA entered into in January, 1995. Balance of $46,648.
23. Notes payable to Xxxxxx Xxxxxxx Ford for a vehicle in Greenville, SC entered into in
April, 1995. Balance of $7,344.
24. Capital leases between CFC Funding Corporation and SFX Broadcasting, Inc. for
equipment in Dallas, TX entered into in July, 1995. Balance of $32,141.
25. All indebtedness of MMR or any Subsidiary thereof which will become
an Obligor upon consummation of the MMR Merger, provided that such
indebtedness was in existence as of September 30, 1996. From and
after the date which is five business days after the closing of the
MMR Merger, indebtedness owed by MMR to Finova Capital Corporation
and The Xxxx Alternative Fund L.P. shall be excluded from the
definition of Permitted Debt.
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26. All capital leases, purchase money debt and other ordinary course of business debt of any
company acquired by the Borrower pursuant to a Permitted Acquisition (which for the
avoidance of doubt shall include debt assumed in connection with the purchase of
Nederlander of Connecticut, Inc., a Connecticut corporation, Connecticut Amphitheater
Development Corporation, a Connecticut corporation, QN Corp., a Connecticut
corporation, Connecticut Performing Arts, Inc., a Connecticut corporation; and
Connecticut Performing Arts Partners) provided that such capital leases, purchase money
debt or other ordinary course of business debt was in existence on the closing of such
Permitted Acquisition.
27. The Existing Subordinated Notes.
28. The New Notes.
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