FIRST AMENDMENT AND LIMITED WAIVER TO CREDIT AGREEMENT
This FIRST AMENDMENT AND LIMITED WAIVER TO CREDIT AGREEMENT (this
"Amendment") is entered into as of June 3, 1996 among Jacor Communications,
Inc., an Ohio corporation (the "Company"), Banque Paribas, individually and as
Agent (in such capacity, the "Agent"), the Co-Agents (as defined in the Credit
Agreement) and the Banks (as defined in the Credit Agreement).
R E C I T A L S:
WHEREAS, the Company, the Agent, each Co-Agent and the Banks are
parties to that certain Credit Agreement dated as of February 20, 1996 (the
"Credit Agreement"; capitalized terms used herein and not otherwise defined
herein shall have the meanings assigned to them in the Credit Agreement as
amended hereby);
WHEREAS, the Company has requested that the Banks, the Co-Agents and
the Agent amend certain provisions and grant waivers with respect to certain
provisions of the Credit Agreement as more fully described herein; and
WHEREAS, the Banks, the Co-Agents and the Agent have agreed to amend
such provisions and grant such waivers upon the terms and conditions contained
herein;
NOW, THEREFORE, in consideration of the premises contained herein, and
for other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties hereto hereby agree as follows:
SECTION 1. Amendments. Immediately upon the satisfaction of each of the
conditions precedent set forth in Section 3 of this Amendment, the Credit
Agreement is amended as follows:
SECTION 1.1 Amendment to Article I of the Credit Agreement.
Article I of the Credit Agreement is hereby amended by adding thereto, in proper
alphabetical order, the defined terms set forth below which do not appear
therein:
"JCAC" means JCAC, Inc., a Florida corporation.
"New Credit Agreement" means that certain Credit Agreement entered
into in June 1996 among JCAC, Chemical Bank, as Administrative Agent, Banque
Paribas, as Documentation Agent, Bank of America Illinois, as Syndication Agent,
and the lenders from time to time party thereto, as amended, restated or
otherwise modified from time to time.
"New Credit Agreement Loan Documents" means the New Credit Agreement,
all guarantees required to be executed to guaranty amounts owing in connection
with the New Credit Agreement and all security documents required to be executed
to secure amounts owing in connection with the New Credit Agreement, each as
amended, restated or otherwise modified from time to time.
SECTION 1.2 Amendment to Section 6.11 of the Credit Agreement.
Section 6.11 of the Credit Agreement is hereby amended by adding a new clause
(h) thereto as follows:
(h) The Guaranty entered into by the Company pursuant to the
New Credit Agreement Loan Documents.
SECTION 1.3 Amendment to Section 6.16 of the Credit Agreement.
Section 6.16 of the Credit Agreement is hereby amended by (i) deleting the word
"and" at the end of clause (c) thereof and substituting therefor a comma and
(ii) by adding the following new clause (e) before the period as follows:
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and (e) the Guaranty entered into by the Company pursuant to
the New Credit Agreement Loan Documents
SECTION 1.4 Amendment to Section 6.17 of the Credit Agreement.
Section 6.17 of the Credit Agreement is hereby amended by adding a new clause
(j) as follows thereto:
(j) Liens granted by the Company and JCAC to secure
obligations pursuant to the New Credit Agreement Loan Documents.
SECTION 1.5 Amendment to Section 6.23 of the Credit Agreement.
Section 6.23 of the Credit Agreement is hereby amended by adding the following
second proviso to the end of such section before the period:
; provided, further, that the Company may enter into the New
Credit Agreement Loan Documents which contain restrictions of the
types referred to in clauses (b), (c), (d) and (e) above.
1.6 Amendment to Schedules to the Credit Agreement and Company Pledge
Agreement.
(a) Schedule 5.18(a). Schedule 5.18(a) to the Credit Agreement is
hereby amended by deleting such Schedule 5.18(a) in its entirety and replacing
it with a new Schedule 5.18(a) attached hereto as Exhibit A.
(b) Schedule to Company Pledge Agreement. Schedule III to the
Company Pledge Agreement is hereby amended by deleting such Schedule III in its
entirety and replacing it with a new Schedule III attached hereto as Exhibit B.
SECTION 2. Limited Waiver. The Banks, as of the Effective Date, hereby
waive any Default which has occurred as
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a result of (i) the failure of the representation and warranty in Section
5.18(a) of the Credit Agreement to be true solely as a result of the failure to
include JCAC on Schedule 5.18(a) thereto prior to the Effective Date (as
hereinafter defined), (ii) the failure of the representation and warranty in
Section 4(d) of the Company Pledge Agreement to be true solely as a result of
the failure to include JCAC on Schedule III thereto prior to the Effective Date,
(iii) the failure of the Company to deliver certificates representing the
pledged shares of the capital stock of JCAC pursuant to Section 3 of the Company
Pledge Agreement prior to the Effective Date and (iv) the failure of JCAC to
execute and deliver to the Agent a counterpart signature page to the Subsidiary
Guaranty and the Subsidiary Security Agreement prior to the Effective Date.
SECTION 3. Conditions to Effectiveness of Amendment. The effectiveness of
this Amendment is subject to the satisfaction of the following conditions
precedent:
3.1 Documents.
(a) Amendment. The Company shall have duly executed and
delivered this Amendment.
(b) Subsidiary Guaranty, Subsidiary Security Agreement and UCC
Financing Statements. JCAC shall have executed and delivered to the Agent a
counterpart signature page to the Subsidiary Guaranty and the Subsidiary
Security Agreement. JCAC shall have executed and delivered to the Agent UCC-1
Financing Statements to be filed with (i) the Secretary of State of the State of
Ohio and (ii) the Recorder of Hamilton County, Ohio.
(c) Guaranty Amendment. Each Subsidiary (other than the
Excluded Subsidiaries) (collectively, the "Subject Subsidiaries") shall have
executed and delivered a Reaffirmation with respect to the Subsidiary Guaranty
in the form of Exhibit C hereto (the "Reaffirmation").
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SECTION 3.2 Certified Resolutions, etc. The Agent shall have
received (in sufficient copies for each Bank) a certificate in form and
substance satisfactory to the Agent of the secretary or assistant secretary (or
comparable officer) of the Company dated the Effective Date, certifying (i) the
resolutions of its Board of Directors approving and authorizing the execution,
delivery and performance by it of this Amendment and the continued effectiveness
thereof, (ii) that there have been no changes in its certificate of
incorporation or by-laws since the Closing Date and (iii) specimen signatures of
its officers authorized to sign this Amendment.
SECTION 3.3 Consents, Licenses, Approval, etc. All consents,
licenses and approvals, if any, required in connection with the execution,
delivery and performance by the Company and its Subsidiaries of this Amendment,
the Subsidiary Guaranty, the Subsidiary Security Agreement and the Reaffirmation
(collectively, the "Documents"), or the validity or enforceability hereof or
thereof, or in connection with any of the transactions effected pursuant hereto
or thereto, shall have been obtained by the Company and be in full force and
effect.
SECTION 3.4 No Injunction. No law or regulation shall have been
adopted, no order, judgment or decree of any governmental authority shall have
been issued, and no litigation shall be pending or threatened, which in the
reasonable judgment of the Agent would enjoin, prohibit or restrain, or impose
or result in the imposition of any material adverse condition upon, the
execution, delivery or performance by the Company or any of its Subsidiaries of
the Documents, the making or repayment of the Loans or the consummation of the
transactions effected pursuant to the terms of the Documents and the other Loan
Documents (as amended hereby).
SECTION 3.5 No Material Adverse Change. No event, act or condition
shall have occurred since February 20, 1996 that, in the reasonable judgment of
the
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Agent, has had or could have a material adverse effect on the business,
properties, financial condition or results of operations of the Company and its
Subsidiaries.
SECTION 3.6 Delivery of JCAC, Inc. Pledged Stock. The Agent shall
have received original stock certificates evidencing the stock of JCAC pledged
pursuant to the Company Pledge Agreement, together with undated stock powers
duly executed in blank in connection therewith.
SECTION 3.7 Costs, Fees and Expenses. The Agent and the Banks
shall have received all costs, fees and expenses payable by the Company under
the Credit Agreement in connection with the preparation, execution or delivery
of the Documents (including, without limitation, the reasonable fees and
expenses accrued through the Effective Date of counsel to the Agent); and the
Company hereby agrees to pay, and to hold the Agent, each Bank and each Co-Agent
harmless against, all documentary, stamp, transfer and similar taxes paid or
payable in connection with the execution, delivery or performance of the
Documents.
SECTION 3.8 Additional Matters. The Agent shall have received such
other certificates, opinions, documents and instruments relating to the
Obligations or the transactions contemplated hereby as may have been reasonably
requested by the Agent, and all corporate and other proceedings and all other
documents (including, without limitation, all documents referred to herein and
not appearing herein and exhibits hereto) and all legal matters in connection
with the transactions contemplated hereby shall be reasonably satisfactory in
form and substance to the Agent.
SECTION 4. Representations and Warranties. In order to induce the Agent
and the Banks to enter into this Amendment, the Company represents and
warrants to the Agent and each Bank, upon the effectiveness of this Amendment,
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which representations and warranties shall survive the execution and delivery of
this Amendment, that:
SECTION 4.1 Due Incorporation; etc. Each of the Company and each
Subject Subsidiary is a corporation duly incorporated, validly existing and in
good standing under the laws of its jurisdiction of incorporation, and has all
requisite authority to conduct its business in each jurisdiction in which its
business is conducted.
SECTION 4.2 No Default; etc. No Default or Unmatured Default has
occurred and is continuing after giving effect to this Amendment or would result
from the execution or delivery of this Amendment or the Reaffirmation or the
consummation of the transactions contemplated hereby or thereby.
SECTION 4.3 Corporate Power and Authority; Authorization. Each of
the Company and each Subject Subsidiary has the corporate power and authority to
execute, deliver and carry out the terms and provisions of the Documents to
which it is a party and the execution and delivery by the Company and each
Subject Subsidiary of the Documents to which it is a party and the performance
by the Company and each Subject Subsidiary of its obligations hereunder and
thereunder have been duly authorized by all requisite corporate action by the
Company and each Subject Subsidiary.
SECTION 4.4 Execution and Delivery. The Company and each Subject
Subsidiary have duly executed and delivered each Document to which it is a
party.
SECTION 4.5 Enforceability. Each Document, the Credit Agreement,
as amended by this Amendment, and each other Loan Document constitute the legal,
valid and binding obligation of the Company and each Subject Subsidiary party
thereto, as the case may be, enforceable against such Person in accordance with
its respective terms, except as enforcement may be limited by bankruptcy,
insolvency, reorganization, moratorium or similar
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laws affecting the enforcement of creditors' right generally, and by general
principles of equity.
SECTION 4.6 No Conflicts; etc. Neither the execution, delivery or
performance by the Company or any Subject Subsidiary of the Documents to which
it is a party, nor compliance by any of them with the terms and provisions
hereof and thereof, (i) will contravene any applicable provision of any law,
statute, rule, regulation, order, writ, injunction or decree of any court or
governmental instrumentality or (ii) will conflict or be inconsistent with, or
result in any breach of, any of the terms, covenants, conditions or provisions
of, or constitute a default under, or result in the creation or imposition of
(or the obligation to create or impose) any Lien upon any property or assets
owned by it pursuant to the terms of, any indenture, mortgage, deed of trust,
agreement or other instrument to which it is a party or by which it or any of
its property or assets is bound or to which it may be subject, or (iii) will
violate any provision of its certificate of incorporation or by-laws.
SECTION 4.7 Consents; etc. No order, consent, approval, license,
authorization, or validation of, or filing, recording or registration with, or
exemption by, any governmental or public body or authority, or any subdivision
thereof, is required to authorize, or is required in connection with the
execution, delivery and performance of the Documents or the consummation of any
of the transactions contemplated hereby or thereby.
SECTION 4.8 Representations and Warranties. All of the
representations and warranties contained in the Credit Agreement and in the
other Loan Documents (other than those which speak expressly only as of a
different date) and in the Documents are true and correct as of the date hereof
after giving effect to this Amendment and the other Documents and the
transactions contemplated hereby and thereby.
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SECTION 4.9 Capital Structure. Schedule 5.18(a), as amended hereby
and as attached hereto as Exhibit A, accurately sets forth the number of
authorized and issued shares of each class of capital stock of the Company and
each of its Subsidiaries, the par value thereof and the registered owner(s) of
the capital stock of each Subsidiary as of the date hereof.
SECTION 4.10 Pledged Stock. The Company has delivered to the Agent
all original stock certificates evidencing the stock pledged pursuant to the
Company Pledge Agreement and each Subsidiary Pledge Agreement, together with
undated stock powers duly executed in blank in connection therewith.
SECTION 5. Miscellaneous.
SECTION 5.1 Effect; Ratification. The amendments set forth herein
are effective solely for the purposes set forth herein and shall be limited
precisely as written, and shall not be deemed to (i) be a consent to any
amendment, waiver or modification of any other term or condition of the Credit
Agreement or of any other Loan Document or (ii) prejudice any right or rights
that the Agent, the Co-Agents or the Banks may now have or may have in the
future under or in connection with the Credit Agreement or any other Loan
Document. Each reference in the Credit Agreement to "this Agreement", "herein",
"hereof" and words of like import and each reference in the other Loan Documents
to the "Credit Agreement" shall mean the Credit Agreement as amended hereby.
This Amendment shall be construed in connection with and as part of the Credit
Agreement and all terms, conditions, representations, warranties, covenants and
agreements set forth in the Credit Agreement and each other Loan Document,
except as herein amended, are hereby ratified and confirmed and shall remain in
full force and effect.
SECTION 5.2 Effectiveness. This Amendment shall immediately become
effective as of the date first written above upon (i) the receipt by the Agent
of duly
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executed counterparts of this Amendment from the Company, each Co-Agent and all
of the Banks and (ii) the satisfaction of each condition precedent contained in
Section 3 hereof (the "Effective Date").
SECTION 5.3 Loan Documents. This Amendment and the Reaffirmation
are Loan Documents executed pursuant to the Credit Agreement and shall (unless
otherwise expressly indicated herein) be construed, administered and applied in
accordance with the terms and provisions thereof.
SECTION 5.4 Costs, Fees and Expenses. The Company agrees to pay
all costs, fees and expenses in connection with the Documents as required
pursuant to the Credit Agreement.
SECTION 5.5 Counterparts. This Amendment may be executed in any
number of counterparts, each such counterpart constituting an original but all
together one and the same instrument.
SECTION 5.6 Severability. Any provision contained in this
Amendment which that is held to be inoperative, unenforceable or invalid in any
jurisdiction shall, as to that jurisdiction, be inoperative, unenforceable or
invalid without affecting the remaining provisions of this Amendment in that
jurisdiction or the operation, enforceability or validity of that provision in
any other jurisdiction.
SECTION 5.7 GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY,
AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE
OF ILLINOIS.
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IN WITNESS WHEREOF, the parties hereto have executed this Amendment as
of the date first above written.
JACOR COMMUNICATIONS, INC.
By: /s/ Jon M. Berry
---------------------------------------
Title: Senior Vice President
and Treasurer
BANQUE PARIBAS, individually and as Agent
By: /s/ Steven M. Heinen
---------------------------------------
/s/ Peter Toal
Title: Vice President /
Regional General Manager
THE FIRST NATIONAL BANK OF BOSTON,
individually and as Co-Agent
By: /s/ Robert F. Milordi
-------------------------------------
Title: Managing Director
BANK OF AMERICA ILLINOIS,
individually and as Co-Agent
By: /s/ Kevin P. Morrison
------------------------------------
Title: Vice President
BANK OF MONTREAL
By: /s/
-----------------------------------
Title:
THE BANK OF NEW YORK
By: /s/ Brendan T. Nedzi
----------------------------------
Title: Vice President
THE BANK OF NOVA SCOTIA
By: /s/ Margot C. Bright
----------------------------------
Title: Representative
C.I.B.C., INC.
By: /s/ P. G. Smith
----------------------------------
Title: Authorized Officer
FIRST BANK
By: /s/ Robert W. Miller
----------------------------------
Title: Vice President
SOCIETY NATIONAL BANK
By: /s/ Michael Stark
----------------------------------
Title: Officer
UNION BANK
By: /s/ J. Kevin Sampson
----------------------------------
Title: Assistant Vice President
EXHIBIT C
REAFFIRMATION
[Attached]
REAFFIRMATION OF
SUBSIDIARY GUARANTY
This REAFFIRMATION OF SUBSIDIARY GUARANTY ("Reaffirmation") is
entered into as of June 3, 1996 by each of the parties listed on the
signature pages hereof (collectively, the "Guarantors") in favor of and for
the benefit of Banque Paribas, as agent (in such capacity, the "Agent") for
itself, the Co-Agents and the Banks party to the Credit Agreement and any
Interest Rate Providers. Capitalized terms used and not defined herein shall
have the meanings assigned to such terms in the Subsidiary Guaranty
referenced below.
R E C I T A L S:
WHEREAS, Jacor Communications, Inc., an Ohio corporation (the
"Company"), the Banks, the Agent and each Co-Agent are parties to that certain
Credit Agreement dated as of February 20, 1996 (the "Original Credit
Agreement");
WHEREAS, the Company, the Banks, the Agent and each Co-Agent are
entering into that certain First Amendment and Limited Waiver to Credit
Agreement dated as of the date hereof (the "Credit Agreement Amendment"; and the
Original Credit Agreement as amended by the Credit Agreement Amendment being
referred to herein as the "Credit Agreement"); and
WHEREAS, each of the Guarantors is a party to that certain
Subsidiary Guaranty dated as of February 20, 1996 (the "Subsidiary Guaranty"),
pursuant to which each Guarantor has jointly and severally guaranteed the
Guaranteed Debt, which term includes, inter alia, all Obligations of the Company
under and as defined in the Credit Agreement.
Section 1. Reaffirmation. Each of the Guarantors hereby (i)
acknowledges that the Company, the Banks, the Co-Agents
and the Agent have entered into the Credit Agreement Amendment, which Credit
Agreement Amendment has been made available to and has been reviewed by such
Guarantor and (ii) reaffirms that its obligations under the Subsidiary Guaranty
and each other Collateral Document to which it is a party continues in full
force and effect with respect to the Original Credit Agreement as amended by the
Credit Agreement Amendment.
Section 2. Counterparts. This Reaffirmation may be executed in any
number of counterparts, each such counterpart constituting an original but all
together one and the same instrument.
Section 3. GOVERNING LAW. THIS REAFFIRMATION SHALL BE GOVERNED BY,
AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE
OF ILLINOIS.
IN WITNESS WHEREOF, each of the Guarantors hereto has caused this
Reaffirmation to be executed and delivered by a duly authorized officer thereof
as of the date first above written.
JACOR BROADCASTING OF FLORIDA, INC.
By:
---------------------------
Title:
JACOR BROADCASTING OF ATLANTA, INC.
By:
---------------------------
Title:
JACOR BROADCASTING OF KNOXVILLE, INC.
By:
---------------------------
Title:
JACOR BROADCASTING OF COLORADO, INC.
By:
---------------------------
Title:
JACOR BROADCASTING OF TAMPA BAY, INC.
By:
---------------------------
Title:
JACOR BROADCASTING OF ST. LOUIS, INC.
By:
---------------------------
Title:
JACOR CABLE, INC.
By:
---------------------------
Title:
GEORGIA NETWORK EQUIPMENT, INC.
By:
---------------------------
Title:
JACOR BROADCASTING CORPORATION
By:
---------------------------
Title:
BROADCAST FINANCE, INC.
By:
---------------------------
Title:
JACOR BROADCASTING OF SAN DIEGO,
INC.
By:
---------------------------
Title:
JCAC, INC.
By:
---------------------------
Title:
Acknowledged:
BANQUE PARIBAS, individually,
as Agent and on behalf of the
Co-Agents and each Bank
By:
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Title: