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EXHIBIT 10.11
SECOND AMENDMENT TO SECOND AMENDED AND RESTATED
REVOLVING CREDIT AND TERM LOAN AGREEMENT
This SECOND AMENDMENT TO SECOND AMENDED AND RESTATED REVOLVING CREDIT AND
TERM LOAN AGREEMENT dated as of February 11, 1999 (this "Amendment"), by and
among (a) EMMIS COMMUNICATIONS CORPORATION (f/k/a/ EMMIS BROADCASTING
CORPORATION), an Indiana corporation (the "Borrower"), (b) the lending
institutions party to the Credit Agreement (as defined below) and listed on
Schedule 1 thereto (collectively, the "Banks"), (c) TORONTO DOMINION (TEXAS),
INC., a Delaware corporation, as administrative agent (the "Administrative
Agent"), (d) BANKBOSTON, N.A., a national banking association, as documentation
agent (the "Documentation Agent"), and (e) FIRST UNION NATIONAL BANK, a national
banking association, as syndication agent (the "Syndication Agent" and,
collectively with the Administrative Agent and the Documentation Agent, the
"Agents"). Capitalized terms used herein without definition shall have the
meanings assigned to such terms in the Credit Agreement, defined below.
WHEREAS, the Borrower, the Banks and the Agents are parties to a Second
Amended and Restated Revolving Credit and Term Loan Agreement dated as of July
16, 1998 (as amended and in effect from time to time, the "Credit Agreement"),
pursuant to which the Banks have extended credit to the Borrower on the terms
and subject to the conditions set forth therein;
WHEREAS, the Borrower, the Banks and the Agents have agreed to amend the
Credit Agreement as set forth herein;
NOW, THEREFORE, in consideration of the foregoing, and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties agree to amend the Credit Agreement as follows:
1. AMENDMENTS TO SECTION 1.1. OF THE CREDIT AGREEMENT.
(a) The definition of "Applicable Margin" is hereby amended by (i)
deleting the table in clause (a) of such definition and substituting in its
place the following table:
- ------------------------------------------------------------------------------------------------
Base Rate Applicable Eurodollar Rate Applicable
Total Leverage Ratio Margin Margin
-------------------- ------ ------
- ------------------------------------------------------------------------------------------------
Greater than or equal to 7.00:1.00 1.625% 2.625%
- ------------------------------------------------------------------------------------------------
Less than 7.00:1.00 but greater 1.375% 2.375%
than or equal to 6.75:1.00
- ------------------------------------------------------------------------------------------------
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- ------------------------------------------------------------------------------------------------
Less than 6.75:1.00 but greater 1.125% 2.125%
than or equal to 6.50:1.00
- ------------------------------------------------------------------------------------------------
Less than 6.50:1.00 but greater 0.875% 1.875%
than or equal to 6.00:1.00
- ------------------------------------------------------------------------------------------------
Less than 6.00:1.00 but greater 0.375% 1.375%
than or equal to 5.50:1.00
- ------------------------------------------------------------------------------------------------
Less than 5.50:1.00 but greater 0.125% 1.125%
than or equal to 5.00:1.00
- ------------------------------------------------------------------------------------------------
Less than 5.00:1.00 but greater 0.000% 0.875%
than or equal to 4.50:1.00
- ------------------------------------------------------------------------------------------------
Less than 4.50:1.00 0.000% 0.625%
- ------------------------------------------------------------------------------------------------
and (ii) deleting the table in clause (b) of such definition and
substituting in its place the following table:
- ------------------------------------------------------------------------------------------------
Base Rate Applicable Eurodollar Rate Applicable
Total Leverage Ratio Margin Margin
-------------------- ------ ------
- ------------------------------------------------------------------------------------------------
Greater than or equal to 7.00:1.00 1.750% 2.750%
- ------------------------------------------------------------------------------------------------
Less than 7.00:1.00 but greater than or
equal to 5.00:1.00 1.500% 2.500%
- ------------------------------------------------------------------------------------------------
Less than 5.00:1.00 1.375% 2.375%
- ------------------------------------------------------------------------------------------------
(b) The definition of "Borrower Security Agreement" is hereby amended
by inserting the word "Borrower" after the words "Second Amended and Restated"
and before the words "Security Agreement" contained in such definition.
(c) The definition of "Borrower Stock Pledge Agreement" is hereby
amended by inserting the word "Borrower" after the words "Second Amended and
Restated" and before the words "Stock Pledge Agreement" contained in such
definition.
(d) The definition of "Copyright Notice" is hereby amended by
deleting the word "Second" contained in such definition.
(e) The definition of "Guaranty" is hereby amended by deleting the
phrase "Second Amended and Restated Guaranty" contained in such definition and
substituting therefor the phrase "Third Amended and Restated Subsidiary
Guaranty".
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(f) The definition of "Partnership Pledge Agreement" is hereby
amended by inserting the words "Amended and Restated" after the word "The" and
before the words "Collateral Assignment of Partnership Interests" contained in
such definition.
(g) The definition of "Subsidiary Pledge Agreement" is hereby amended
by deleting the word "Second" contained in such definition and substituting
therefor the word "Third".
(h) The definition of "Subsidiary Security Agreement" is hereby
amended by deleting the phrase "Second Amended and Restated Security Agreement"
contained in such definition and substituting therefor the phrase "Third
Amended and Restated Subsidiary Security Agreement".
(i) The definition of "Trademark Assignment" is hereby amended by
deleting such definition in its entirety and restating it as follows:
"Trademark Assignments. Collectively, the Second Amended and
Restated Borrower Trademark Collateral Security and Pledge Agreement, dated as
of the date hereof, as the same may be amended from time to time hereafter,
between the Borrower and the Administrative Agent, and the Second Amended and
Restated Subsidiary Trademark Collateral Security and Pledge Agreement, dated as
of the date hereof, as the same may be amended from time to time hereafter,
among the Subsidiaries of the Borrower named therein and the Administrative
Agent, each in form and substance satisfactory to the Banks and the
Administrative Agent."
(j) The definition of "Excluded Subsidiary" is hereby amended by
deleting such definition in its entirety and restating it as follows:
"Excluded Subsidiaries. Radio Hungary, Emmis Pledge Corporation,
a Delaware corporation, a wholly owned Subsidiary of Emmis and any other
Subsidiary formed or acquired in the future and designated as an Excluded
Subsidiary by Borrower, so long as such designation would not cause a Default
or Event of Default."
(k) The definitions of "Holdco", "Senior Debt" and "Total Funded
Debt" are hereby amended by deleting the references to "Section 10.1(k)"
contained therein and substituting therefor "Sections 10.1(k) and 10.1(l)".
(l) The definition of "Leverage Ratio" is hereby amended, and all
references to such definition contained in the Credit Agreement and the other
Loan Documents are likewise amended, by substituting for the term "Leverage
Ratio" the phrase "Total Leverage Ratio". "Total Leverage Ratio" shall have the
same meaning as "Leverage Ratio" in the Credit Agreement as in effect
immediately prior to the Second Amendment Effective Date.
(m) The definition of "Restricted Payments" is hereby amended by
deleting such definition in its entirety and restating it as follows:
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"Restricted Payments. Collectively, distributions, dividends or
other payments in respect of the capital stock of the Borrower, whether in cash
or assets, other than distributions of shares of Borrower's common stock;
payments, defeasance or repurchases of, or in respect of, any subordinated debt
(including, without limitation, any Indebtedness permitted under Sections
10.1(k) or 10.1(l) hereof); and payments of management, consulting or similar
fees to Affiliates of the Borrower."
(n) The definition of "Tranche A Commitment Amount" shall be amended
by deleting the reference to "$150,000,000" contained therein and substituting
in its place a reference to "$400,000,000".
(o) Section 1.1 to the Credit Agreement is further amended by adding
the following definitions in correct alphabetical order:
"Second Amendment Effective Date. The date on which all
conditions to effectiveness set forth in Section 15 of the Second Amendment to
Second Amended and Restated Revolving Credit and Term Loan Agreement, dated as
of February 11, 1999, among the Borrower, the Agents and the Banks, are
satisfied."
"Subordinated Note Documents. Each of the documents, instruments
(including the Subordinated Notes) and other agreements entered into or
delivered by the Borrower (including, without limitation, the Subordinated Note
Indenture) and/or any Subsidiary of the Borrower relating to the issuance by
the Borrower of the Subordinated Notes and any guaranties or other documents
related thereto, as in effect on the Second Amendment Effective Date and as the
same may be supplemented, amended or modified from time to time in accordance
with the terms hereof (including, without limitation, Section 10.12) and
thereof."
"Subordinated Note Indenture. The Indenture, dated as of February
12, 1999, by and between the Borrower and IBJ Whitehall Bank & Trust Company,
as trustee thereunder, with respect to the Subordinated Notes, as in effect on
the Second Amendment Effective Date and as the same may be supplemented,
amended or modified from time to time in accordance with the terms hereof
(including, without limitation, Section 10.12) and thereof."
"Subordinated Notes. The 8.125% Subordinated Notes due 2009 in
the aggregate principal amount of $300,000,000 issued by the Borrower under the
Subordinated Note Indenture."
"Subordinated Note Proceeds. See Section 4.3(f) hereof."
"Surplus Proceeds. See Section 4.3(f) hereof."
2. AMENDMENT TO SECTION 2.1.2 OF THE CREDIT AGREEMENT. Section 2.1.2
of the Credit Agreement is hereby amended by inserting at the end of the first
sentence of such Section the following phrase:
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"; provided, however, in the event that during any calendar quarter in respect
of which a commitment fee is payable the average daily amount of outstanding
Tranche A Loans plus the sum of the Maximum Drawing Amount and all Unpaid
Reimbursement Obligations is less than fifty percent (50%) of the Tranche A
Commitment Amount, then the commitment fee for such calendar quarter for Tranche
A Loans shall be increased above the otherwise applicable rate by 0.125% per
annum."
3. AMENDMENT TO SECTION 4.2 OF THE CREDIT AGREEMENT. Section 4.2 of
the Credit Agreement is hereby amended by deleting such Section in its entirety
and restating it as follows:
"4.2 OPTIONAL PREPAYMENT OF TERM LOANS. The Borrower shall have the right at any
time to prepay the Term Notes on or before the Maturity Date relating thereto,
as a whole, or in part, upon not less than three (3) Business Days' prior
written notice to the Administrative Agent, without premium or penalty; provided
that, (a) each partial prepayment shall be in the principal amount of $500,000
or in integral multiples of $100,000 in excess thereof, (b) any portion of the
Term Loans bearing interest at the Eurodollar Rate may only be prepaid pursuant
to this Section 4.2 on the last day of the Interest Period relating thereto, and
(c) each partial prepayment shall be allocated among the Banks, in proportion,
as nearly as practicable, to the respective outstanding amount of each Bank's
Tranche C Term Note and Fund Tranche Term Note, with adjustments to the extent
practicable to equalize any prior prepayments not exactly in proportion. Each
prepayment of principal of the Term Loans shall include all interest accrued to
the date of prepayment and shall be applied against the scheduled installments
of principal due on the Tranche C Term Loan and the Fund Tranche Term Loan, in
the inverse order of maturity. No amount repaid with respect to the Term Loans
may be reborrowed."
4. AMENDMENT OF SECTION 4.3(e) OF THE CREDIT AGREEMENT. Section
4.3(e) of the Credit Agreement is hereby amended by deleting such Section in
its entirety and restating it as follows:
"(e) If as of the last day of the fiscal quarter most recently ended prior to
the issuance of unsecured and subordinated debt by HoldCo, the Borrower or any
of its Subsidiaries pursuant to Section 10.1(l) hereof, the Total Leverage Ratio
calculated for the period of four consecutive fiscal quarters ending on such
last day as if such unsecured and subordinated debt were outstanding on such
date is greater than 6.50:1.00, then within ten (10) days after such issuance
the Borrower shall prepay the Loans by an amount equal to fifty percent (50%) of
the gross proceeds from such issuance. Such proceeds shall be applied (i) (A)
prior to the Tranche C Conversion Date, to the principal installments of the
Fund Tranche Term Loans and (B) after the Tranche C Conversion Date, pro rata to
the remaining principal installments of the Fund Tranche Term Loan and the
Tranche C Term Loan, and (ii) if the Term Loans have been paid in full, to repay
Tranche A Loans and the Tranche C Loans (if such repayment is prior to the
Tranche C Conversion Date). If the Term Loans have been paid in full, and all
outstanding borrowings under the Revolving Credit Loans have been paid in full,
the Tranche A Commitment Amount and
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Tranche C Commitment Amount shall be permanently reduced by the unapplied
portion of fifty percent (50%) of such gross proceeds. Any mandatory prepayment
of principal of the Loans required hereunder shall be accompanied by a payment
of all interest accrued to the date of such prepayment. Any mandatory prepayment
of Term Loans hereunder shall not reduce the scheduled repayment installments
required under Section 3.4 hereof. The Tranche A Commitment Amount and the
Tranche C Commitment Amount, respectively, shall be permanently reduced by the
amount of such proceeds applied to repay Tranche A Loans and Tranche C Loans (as
the case may be); provided that, such reduction shall not reduce the scheduled
Tranche A Commitment Amount reductions set forth in Section 2.1.3 above. Each
such mandatory prepayment shall be allocated among the Banks in proportion, as
nearly as practicable, to the respective aggregate amounts outstanding on each
Bank's Notes evidencing the Loan or Loans advanced under the applicable Tranche.
In the event that any Term Loan is required to be prepaid hereunder, all
principal amounts prepaid shall be applied against the scheduled installments of
principal due on such Term Loan in the inverse order of maturity.
(f) In the event the gross proceeds from the Subordinated Notes (the
"Subordinated Note Proceeds") exceed $300,000,000, in the aggregate, then within
ten (10) days after the issuance of the Subordinated Notes, the Borrower shall
prepay the Loans by an amount equal to the difference between the Subordinated
Note Proceeds and $300,000,000 (the "Surplus Proceeds"). The Surplus Proceeds
shall be applied pro rata to prepay outstanding Loans in all Tranches and to the
extent applied to repay Revolving Credit Loans, the Tranche A Commitment Amount
and the Tranche C Commitment Amount (as the case may be) shall be permanently
reduced by the amount of Revolving Credit Loans in such Tranche which were so
repaid. In the event all outstanding Loans have been paid in full, the Tranche A
Commitment Amount and Tranche C Commitment Amount shall be permanently reduced
by the amount of any remaining Surplus Proceeds. Any mandatory prepayment of
principal of the Loans required hereunder shall be accompanied by a payment of
all interest accrued to the date of such prepayment. Any mandatory prepayment of
Term Loans hereunder shall not reduce the scheduled repayment installments
required under Section 3.4 hereof. Any reductions in the Tranche A Commitment
Amount shall not reduce the scheduled Tranche A Commitment Amount reductions set
forth in Section 2.1.3. Each such mandatory prepayment shall be allocated among
the Banks in proportion, as nearly as practicable, to the respective aggregate
amounts outstanding on each Bank's Notes evidencing the Loan or Loans advanced
under the applicable Tranche. In the event that any Term Loan is required to be
prepaid hereunder, all principal amounts prepaid shall be applied against the
scheduled installments of principal due on such Term Loan in the inverse order
of maturity."
5. AMENDMENT TO SECTION 10.1 OF THE CREDIT AGREEMENT. Section 10.1 of
the Credit Agreement is hereby amended be deleting Sections 10.1(k) and 10.1(l)
in their entirety and inserting the following in substitution therefor:
"(k) unsecured Indebtedness in the aggregate principal amount of $300,000,000
evidenced by the Subordinated Notes and guaranteed by certain Subsidiaries of
the Borrower which guarantees are junior and subordinated to the obligations of
the
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Subsidiaries (other than the Excluded Subsidiaries) under the Guaranty on the
same basis and to the same extent as the Indebtedness evidenced by the
Subordinated Notes is subordinated to the Obligations; provided, that the
Surplus Proceeds are applied pursuant to Section 4.3(f) of this Credit
Agreement;
(l) Indebtedness of the Borrower and/or HoldCo (exclusive of Indebtedness
incurred in connection with the Subordinated Notes issued in February of 1999),
in an aggregate amount not to exceed $250,000,000; provided that (i) such
Indebtedness is unsecured and fully subordinated, on terms satisfactory to the
Agents and the Majority Banks, to the Obligations and the Agents' and the Banks'
rights hereunder and under the other Loan Documents and is subject to terms and
conditions which are in the judgement of the Agents and the Majority Banks, less
restrictive to the Borrower and its Subsidiaries than are the terms set forth
herein and in the other Loan Documents, (ii) no Default or Event of Default has
occurred and is continuing immediately prior to the incurrence thereof and no
Default or Event of Default will result therefrom, and (iii) the proceeds of
such Indebtedness are applied pursuant to Section 4.3(e) of this Credit
Agreement;
(m) other Indebtedness, contingent or otherwise, in an aggregate amount
outstanding at any one time not to exceed $10,000,000."
6. AMENDMENTS TO SECTION 10.3 OF THE CREDIT AGREEMENT. Section 10.3
of the Credit Agreement is hereby amended as follows:
(a) Section 10.3(d) is amended by deleting such Section in its
entirety and restating it as follows:
"(d) Investments existing on the Second Amendment Effective Date and listed on
Schedule 10.3 hereto, including the Investments described elsewhere in this
Section 10.3 and existing on the Second Amendment Effective Date;"
(b) Section 10.3(l) is amended by deleting the reference to
"$25,000,000" in such Section and substituting in its place "$50,000,000"; and
(c) Section 10.3(n) is amended by deleting the reference to
"$5,000,000" in such Section and substituting in its place "$10,000,000".
7. AMENDMENT TO SECTION 10.4. OF THE CREDIT AGREEMENT. Section 10.4.
of the Credit Agreement is hereby amended by deleting clause (d) of such
Section in its entirety and restating it as follows:
"(d) so long as no Default or Event of Default has occurred or is continuing or
would occur as a result thereof, scheduled payments of interest by the Borrower
on subordinated Indebtedness permitted by Sections 10.1(k) and 10.1(l) above."
8. AMENDMENTS TO SECTION 10.5 OF THE CREDIT AGREEMENT. Section 10.5
of the Credit Agreement is hereby amended as follows:
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(a) Section 10.5(g) of the Credit Agreement is hereby amended by
deleting the reference to "$1,000,000" contained therein and replacing the same
with "$10,000,000"; and
(b) Section 10.5(h) of the Credit Agreement is hereby amended by
deleting the references to "$50,000,000" and "$75,000,000" contained therein
and replacing the same with "$75,000,000" and "$100,000,000" respectively.
9. AMENDMENT TO SECTION 10.9 OF THE CREDIT AGREEMENT. Section 10.9 of
the Credit Agreement is hereby amended by deleting such Section in its entirety
and restating it as follows:
"10.9. SUBSIDIARY DISTRIBUTIONS. The Borrower will not, and will not permit any
of its Subsidiaries to, enter into any arrangement or otherwise become subject
to any restriction or requirement which has the effect of prohibiting or
limiting any Subsidiary's ability to (a) make Distributions to the Borrower, (b)
pay any Indebtedness owed to the Borrower or the Borrower's other Subsidiaries
(other than an Excluded Subsidiary), (c) make loans or advances to the Borrower
or the Borrower's other Subsidiaries (other than an Excluded Subsidiary), or (d)
transfer any of its properties or assets to the Borrower or the Borrower's other
Subsidiaries (other than an Excluded Subsidiary)."
10. AMENDMENT TO SECTION 10.10 OF THE CREDIT AGREEMENT. Section 10.10
of the Credit Agreement is hereby amended by deleting the reference to "Section
10.1(k)" contained therein and substituting in its place a reference to
"Section 10.1(l)".
11. AMENDMENT TO SECTION 10 OF THE CREDIT AGREEMENT. Section 10 of
the Credit Agreement is hereby further amended by inserting the following
Section 10.12 in its correct numerical position therein:
"10.12 AMENDMENTS TO SUBORDINATED NOTE DOCUMENTS. Borrower will not amend,
modify or change the terms of any Subordinated Note Document if the effect of
such amendment is to (a) increase the interest rate on the Subordinated Notes,
(b) change the dates upon which payments of principal or interest are due on the
Subordinated Notes (other than to extend such dates), (c) change any default or
event of default relating thereto other than to delete or make less restrictive
any default provision therein, or add any covenant with respect to any
Subordinated Note Document, (d) change the redemption or prepayment provisions
of the Subordinated Notes other than to extend the dates therefor or to reduce
the premiums payable in connection therewith, (e) grant any security or liens to
secure the Subordinated Notes, (f) change any subordination provisions, terms or
conditions, or (g) change or amend any other term if such change or amendment
would materially increase the obligations of the obligor or confer additional
material rights to the holders of the Subordinated Notes in a manner adverse to
the Borrower, its Subsidiaries, the Agents or the Banks."
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12. AMENDMENT TO SECTION 11.2 OF THE CREDIT AGREEMENT. Section 11.2 of
the Credit Agreement is hereby amended by deleting such Section in its entirety
and restating it as follows:
11.2. TOTAL LEVERAGE RATIO. The Borrower will not permit the Total
Leverage Ratio, determined as at the last day of any fiscal quarter
ending on any date or during any period described in the table set forth
below, to exceed the ratio set forth opposite such date or period in such
table:
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PERIOD RATIO
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Closing Date - 11/30/98 7.35:1.00
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12/01/98 - 8/31/99 7.00:1.00
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9/01/99 - 2/29/00 6.75:1.00
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3/01/00 - 8/31/00 6.50:1.00
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9/01/00 - 2/28/01 6.25:1.00
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3/01/01 - 2/28/02 6.00:1.00
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Thereafter 5.00:1.00
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13. AMENDMENT TO SECTION 11.5 OF THE CREDIT AGREEMENT. Section 11.5
of the Credit Agreement is hereby amended by deleting such Section in its
entirety and restating it as follows:
11.5 SENIOR LEVERAGE RATIO. The Borrower will not permit the Senior
Leverage Ratio, determined as of the last day of any fiscal quarter
ending on any date or during any period described in the table set
forth below, to exceed the ratio set forth opposite such date or period
in such table:
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PERIOD RATIO
-----------------------------------------------------------------
Closing Date - 8/31/99 5.50:1.00
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9/01/99 - 2/29/00 5.25:1.00
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3/01/00 - 8/31/00 5.00:1.00
-----------------------------------------------------------------
9/01/00 - 2/28/01 4.75:1.00
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3/01/01 - 2/28/02 4.50:1.00
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Thereafter 3.50:1.00
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14. AMENDMENTS TO SECTION 15.1 OF THE CREDIT AGREEMENT. Section 15.1
of the Credit Agreement is hereby amended as follows:
(a) Section 15.1.(e) of the Credit Agreement is hereby amended by
deleting Section 15.1.(e) in its entirety and restating it as follows:
"(e) any representation or warranty of the Borrower, any of its Subsidiaries or
HoldCo in this Credit Agreement, any other Loan Document, any Subordinated Note
Document
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or in any other document or instrument delivered pursuant to or in connection
with this Credit Agreement shall prove to have been false in any material
respect upon the date when made or deemed to have been made or repeated;"
(b) Section 15.1.(u) of the Credit Agreement is hereby amended by
deleting the reference to "Section 10.1(k)" contained therein and substituting
in its place "Section 10.1(l)";
(c) Section 15.1.(v) of the Credit Agreement is hereby amended by
deleting Section 15.1.(v) in its entirety and restating it as follows:
"(v) the holders of any part of the Indebtedness described in Sections 10.1(k)
or 10.1(l) hereof or the holders of the SF Broadcasting Seller Note shall
accelerate the maturity of all or any part of such Indebtedness or such
Indebtedness shall be prepaid, defeased, redeemed or repurchased in whole or in
part or any default shall occur with respect thereto or if the subordination
provisions of such Indebtedness are found by any court, or asserted by the
trustee in respect of, or any holder of, Subordinated Debt in a judicial
proceeding to be, invalid or unenforceable or in the case of the SF
Broadcasting Seller Note any portion of the principal and interest obligations
owing thereunder and/or any obligations under Section 2.5(e) of the SF Asset
Purchase Agreement as in effect on the Closing Date shall be paid in any manner
other than (i) by the issuance and delivery to the holder of the SF
Broadcasting Seller Note, or its nominee, of Class A Common Stock of the
Borrower or with cash proceeds from an issuance of such Class A Common Stock
which occurred after the Closing Date and prior to the date of such payment or
(ii) contemporaneously with the issuance of the Subordinated Notes, with the
Subordinated Note Proceeds or with cash proceeds from Loans advanced in
connection therewith; and"
(d) Section 15.1 of the Credit Agreement is hereby amended by
inserting the following in its entirety after clause (v) of such Section:
"(w) at any time, any of the Borrower's Subsidiaries shall provide a guaranty of
the Borrower's obligations under the Subordinated Notes if such Subsidiary is
not at such time guarantying the Obligations pursuant to the Guaranty or if such
guaranty of the Borrowers obligations under the Subordinated Note is not
subordinated to such Subsidiary's Obligations under the Guaranty;"
15. AMENDMENT TO SECTION 16.1 OF THE CREDIT AGREEMENT. Section 16.1
of the Credit Agreement is hereby amended by inserting the following clause (f)
in its entirety immediately following clause (e) in the first sentence of such
Section:
", and (f) the additional Indebtedness represented by such additional
commitments shall be considered "Senior Debt" under and as defined in the
Subordinated Note Documents and the Banks and the Administrative Agent shall
have received a legal opinion, in form and substance satisfactory to the Banks
and the Administrative Agent, from Borrower's counsel to such effect".
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16. AMENDMENTS TO SCHEDULES 1 AND 10.3 TO THE CREDIT AGREEMENT.
Schedules 1 and 10.3 to the Credit Agreement are hereby amended by deleting
such Schedules in their entirety and substituting therefor Schedules 1 and 10.3
attached hereto.
17. PAYMENT OF TRANCHE B TERM LOAN. The Borrower and the Banks hereby
agree that on the Effective Date hereof, the outstanding principal amount of
the Tranche B Term Loan shall be automatically converted to Tranche A Loans
owing to each of the Banks in the same proportion as the Tranche B Loans
advanced by each such Bank and outstanding immediately prior to such conversion
and the Tranche B Term Loan shall be deemed to be repaid with the proceeds of
such converted Tranche A Loans. The interest accrued on such Tranche B Loans
shall be paid in accordance with the terms of the Credit Agreement as though
such interest had accrued on Tranche A Loans and any Interest Period applicable
to the Tranche B Loan immediately prior to such conversion shall continue to be
applicable to the converted Tranche A Loans as though such Loans had been
Tranche A Loans when initially advanced.
18. AMENDMENT FEES. In consideration of the Banks and the Agents
amending the Credit Agreement as set forth herein, the Borrower hereby agrees
to pay an amendment fee in an amount equal to $812,500 (the "Amendment Fee") to
the Administrative Agent for the pro rata accounts of the Banks in accordance
with each such Bank's Commitment Percentage of the Tranche A Commitment Amount
(after giving effect to this Amendment) and the Fund Tranche Term Loan. The
Borrower also hereby acknowledges that the Amendment Fee shall be deemed fully
earned and payable upon satisfaction of the conditions to effectiveness set
forth in Section 19 hereof and shall constitute an Obligation of the Borrower
under the Credit Agreement.
19. CONDITIONS TO EFFECTIVENESS. This Amendment shall become
effective (the "Effective Date") upon the satisfaction of the following
conditions:
(a) this Amendment shall have been executed and delivered to the
Administrative Agent by each of the Banks, the Agent and the Borrower and shall
have been acknowledged and agreed to by each Subsidiary party to the Guaranty;
(b) the Borrower shall have executed and delivered to the
Administrative Agent amended Tranche A Notes payable to each Bank in the
principal amount of each Bank's Tranche A Commitment Amount (as increased after
giving effect to this Amendment);
(c) the Administrative Agent shall have received copies of all
Subordinated Note Documents executed or delivered in connection with the
issuance of the Subordinated Notes (including, without limitation, any legal
opinions delivered in connection therewith) certified by an officer of the
Borrower to be true and complete copies of such Subordinated Note Documents;
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(d) the Administrative Agent shall have received evidence reasonably
satisfactory to the Administrative Agent that the Borrower has received gross
proceeds from the Subordinated Notes in an amount equal to or greater than
$300,000,000;
(e) the Administrative Agent shall have received a certificate signed
by duly authorized financial officer of the Borrower that each of the
representations and warranties of any of the Borrower and its Subsidiaries
contained in this Amendment, the Credit Agreement, the other Loan Documents,
the Subordinated Note Documents or in any document or instrument delivered
pursuant to or in connection herewith or therewith shall have been true as of
the date as of which they were originally made and shall also be true on the
date hereof, that no Default or Event of Default shall have occurred and be
continuing and that the Subordinated Notes have been issued in accordance with
the terms of the Subordinated Note Indenture;
(f) each of the Banks and the Administrative Agent shall have
received a favorable opinion addressed to the Banks and the Administrative
Agent, dated as of the date hereof, in form and substance satisfactory to the
Banks and the Administrative Agent, from Bose McKinney & Evans, counsel to the
Borrower and its Subsidiaries; and
(g) all corporate action necessary for the valid execution, delivery
and performance by the Borrower and each of its Subsidiaries of this Amendment,
the amended and restated Tranche A Notes and any Subordinated Note Document to
which it is or is to become a party shall have been duly and effectively taken,
and evidence thereof satisfactory to the Banks shall have been provided to each
of the Banks.
20. AFFIRMATION OF THE BORROWER. The Borrower hereby affirms all of
its Obligations under the Credit Agreement and under each of the other Loan
Documents to which it is a party and hereby affirms its absolute and
unconditional promise to pay to the Banks the Loans and all other amounts due
under the Credit Agreement and the other Loan Documents. The Borrower hereby
represents, warrants and confirms that the Obligations are and remain secured
pursuant to the Security Documents.
21. REPRESENTATIONS AND WARRANTIES. The Borrower hereby represents
and warrants to the Banks and the Administrative Agent as follows:
(a) Representations and Warranties. Each of the representations and
warranties contained in Section 8 of the Credit Agreement were true and correct
in all material respects when made, and, after giving effect to this Amendment,
are true and correct on and as of the date hereof, except to the extent that
such representations and warranties relate specifically to a prior date.
(b) Enforceability. The execution and delivery by the Borrower of
this Amendment and the new Tranche A Notes, and the performance by the Borrower
of this Amendment, the Credit Agreement and the other Loan Documents, all as
amended hereby, are within the corporate authority of the Borrower and have
been duly authorized by all necessary corporate proceedings. This Amendment,
the Credit Agreement and the
13
other Loan Documents, all as amended hereby, constitute valid and legally
binding obligations of the Borrower, enforceable against it in accordance with
their terms, except as limited by bankruptcy, insolvency, reorganization,
moratorium or similar laws relating to or affecting the enforcement of
creditors' rights in general.
(c) No Default. No Default or Event of Default has occurred and is
continuing, and no Default or Event of Default will result from the execution,
delivery and performance by the Borrower of this Amendment.
22. NO OTHER AMENDMENTS, ETC. Except as expressly provided in this
Amendment, (a) all of the terms and conditions of the Credit Agreement and the
other Loan Documents remain unchanged and (b) all of the terms and conditions
of the Credit Agreement, as amended hereby, and of the other Loan Documents are
hereby ratified and confirmed and remain in full force and effect. Nothing
herein shall be construed to be an amendment, modification or waiver of any
requirements of the Borrower or of any other Person under the Credit Agreement
or any of the other Loan Documents except as expressly set forth herein.
23. EXECUTION IN COUNTERPARTS. This Amendment may be executed in any
number of counterparts and by each party on a separate counterpart, each of
which when so executed and delivered shall be an original, but all of which
together shall constitute one instrument. In proving this Amendment, it shall
not be necessary to produce or account for more than one such counterpart
signed by the party against whom enforcement is sought.
24. MISCELLANEOUS. This Amendment shall for all purposes be construed
in accordance with and governed by the laws of The State of New York. The
captions in this Amendment are for convenience of reference only and shall not
define or limit the provisions hereof. The Borrower agrees to pay to the
Administrative Agent, on demand by the Administrative Agent, all reasonable
out-of-pocket costs and expenses incurred or sustained by the Administrative
Agent in connection with the preparation of this Amendment, including
reasonable legal fees.
14
IN WITNESS WHEREOF, the parties have executed this Amendment as of the
date first above written.
EMMIS COMMUNICATIONS
CORPORATION (f/k/a Emmis
Broadcasting Corporation)
By:
--------------------------------
Name:
Title:
15
TORONTO DOMINION (TEXAS), INC.
By:
---------------------------
Title:
16
BANKBOSTON, N.A.
By:
---------------------------
Title:
17
FIRST UNION NATIONAL BANK
By:
--------------------------
Title:
18
THE BANK OF NEW YORK
By:
-------------------------------
Title:
19
PARIBAS (f/k/a BANQUE PARIBAS)
By:
-------------------------------
Title:
By:
-------------------------------
Title:
20
BARCLAYS BANK PLC
By:
-------------------------------
Title:
21
COMPAGNIE FINANCIERE DE CIC
ET DE L'UNION EUROPEENNE
By:
-------------------------------
Title:
22
FLEET BANK, N.A.
By:
-------------------------------
Title:
23
KEY CORPORATE CAPITAL INC.
By:
-------------------------------
Title:
24
MELLON BANK, N.A.
By:
-------------------------------
Title:
25
COOPERATIEVE CENTRALE
RAIFFEISEN-BOERENLEENBANK
B.A., "RABOBANK NEDERLAND,"
NEW YORK BRANCH
By:
-------------------------------
Title:
By:
-------------------------------
Title:
26
UNION BANK OF CALIFORNIA, N.A.
By:
-------------------------------
Title:
27
FIRST DOMINION CAPITAL LLC
By:
-------------------------------
Title:
28
BANK OF MONTREAL
By:
-------------------------------
Title:
29
BANK ONE, INDIANA, N.A.
By:
-------------------------------
Title:
30
SUNTRUST BANK, CENTRAL
FLORIDA, N.A.
By:
-------------------------------
Title:
31
CITY NATIONAL BANK
By:
-------------------------------
Title:
32
CREDIT LYONNAIS NEW YORK
BRANCH
By:
-------------------------------
Title:
33
CREDIT SUISSE FIRST BOSTON
By:
-------------------------------
Title:
34
FIRST HAWAIIAN BANK
By:
-------------------------------
Title:
35
MERCANTILE BANK NATIONAL
ASSOCIATION
By:
-------------------------------
Title:
36
NATIONAL CITY BANK OF INDIANA
By:
-------------------------------
Title:
37
SUMMIT BANK
By:
-------------------------------
Title:
38
AG CAPITAL FUNDING PARTNERS,
L.P.
BY: ANGELO, GORDON & CO., L.P.,
AS INVESTMENT ADVISER
By:
-------------------------------
Title:
39
GCB INVESTMENT PORTFOLIO
BY: CITIBANK, N.A. AS MANAGER
By:
-------------------------------
Title:
40
CYPRESSTREE INSTITUTIONAL
FUND, LLC
BY: CYPRESSTREE INVESTMENT
MANAGEMENT COMPANY, INC., ITS
MANAGING MEMBER
By:
-------------------------------
Title:
CYPRESSTREE SENIOR FLOATING
RATE FUND
BY: CYPRESSTREE INVESTMENT
MANAGEMENT COMPANY, INC., AS
PORTFOLIO MANAGER
By:
-------------------------------
Title:
CYPRESSTREE INVESTMENT
MANAGEMENT COMPANY, INC.
AS: ATTORNEY-IN-FACT AND ON
BEHALF OF FIRST ALLMERICA
FINANCIAL LIFE INSURANCE
COMPANY AS PORTFOLIO
MANAGER
By:
-------------------------------
Title:
41
OCTAGON LOAN TRUST
BY: OCTAGON CREDIT INVESTORS,
AS MANAGER
By:
-------------------------------
Title:
42
KZH CYPRESSTREE-1 LLC
By:
-------------------------------
Title:
KZH SHOSHONE LLC
By:
-------------------------------
Title:
KZH ING-1 LLC
By:
-------------------------------
Title:
43
STEIN ROE & FARNHAM
INCORPORATED, AS AGENT FOR
KEYPORT LIFE INSURANCE
COMPANY
By:
-------------------------------
Title:
44
THE TRAVELERS INSURANCE
COMPANY
By:
-------------------------------
Title:
45
OXFORD STRATEGIC INCOME FUND
BY EATON VANCE
MANAGEMENT AS
INVESTMENT ADVISOR
By:
-------------------------------
Title:
46
MORGAN STANLEY SENIOR
FUNDING, INC.
By:
-------------------------------
Title:
47
MORGAN STANLEY DEAN WITTER
PRIME INCOME TRUST
By:
-------------------------------
Title:
48
TCW LEVERAGED INCOME TRUST II, L.P.
BY: TCW ADVISERS (BERMUDA), LTD.,
AS GENERAL PARTNER
By:
-----------------------------------
Name: Mark L. Gold
Title: Managing Director
BY: TCW INVESTMENT MANAGEMENT COMPANY,
AS INVESTMENT ADVISER
By:
-----------------------------------
Name:
Title:
49
VAN KAMPEN SENIOR INCOME TRUST
By:
-------------------------------
Title:
50
MERRILL LYNCH SENIOR
FLOATING RATE FUND
By:
-------------------------------
Title:
MERRILL LYNCH PRIME RATE
PORTFOLIO
By:
-------------------------------
Title:
51
SENIOR DEBT PORTFOLIO BY
BOSTON MANAGEMENT AND
RESEARCH AS INVESTMENT
ADVISOR
By:
-------------------------------
Title:
52
PAM CAPITAL FUNDING L.P.
By:
-------------------------------
Title:
53
ARCHIMEDES FUNDING II LTD.
By:
-------------------------------
Title:
54
BANK OF HAWAII
By:
-------------------------------
Title:
55
THE CIT GROUP/EQUIPMENT
FINANCING, INC.
By:
-------------------------------
Title:
56
FRANKLIN FLOATING RATE TRUST
By:
-------------------------------
Title:
57
Each of the undersigned Subsidiaries hereby (a) acknowledges the foregoing
Amendment and (b) ratifies and confirms all of its obligations under the
Guaranty and under each of the other Loan Documents to which it is a party.
EMMIS BROADCASTING
CORPORATION OF NEW YORK
EMMIS FM BROADCASTING
CORPORATION OF
INDIANAPOLIS
EMMIS FM BROADCASTING
CORPORATION OF CHICAGO
EMMIS FM BROADCASTING
CORPORATION OF ST. LOUIS
KPWR, INC.
EMMIS PUBLISHING CORPORATION
EMMIS FM RADIO CORPORATION OF
INDIANAPOLIS
EMMIS AM RADIO CORPORATION OF
INDIANAPOLIS
EMMIS 104.1 FM RADIO
CORPORATION OF ST. LOUIS
EMMIS 106.5 FM BROADCASTING
CORPORATION OF ST.LOUIS
EMMIS INTERNATIONAL
BROADCASTING CORPORATION
EMMIS INTERNATIONAL
CORPORATION
EMMIS DAR, INC.
EMMIS 105.7 FM RADIO CORPORATION
OF INDIANAPOLIS
EMMIS 1310 AM RADIO
CORPORATION OF INDIANAPOLIS
EMMIS MEADOWLANDS CORPORATION
EMMIS 1380 AM RADIO
CORPORATION OF ST. LOUIS
MEDIATEX COMMUNICATIONS
CORPORATION
TEXAS MONTHLY, INC.
MEDIATEX DEVELOPMENT CORPORATION
EMMIS FM HOLDING CORPORATION OF
NEW YORK
EMMIS 101.9 FM RADIO CORPORATION OF
NEW YORK
EMMIS RADIO CORPORATION OF NEW YORK
(f/k/a Emmis Holding Corporation
of New York)
58
EMMIS INDIANA BROADCASTING,
L.P. (f/k/a Emmis Indiana
Radio, L.P.)
By: Emmis Communications
Corporation (f/k/a Emmis
Broadcasting Corporation), its
General Partner
EMMIS PUBLISHING, L.P.
By: Emmis Communications
Corporation (f/k/a Emmis
Broadcasting Corporation), its
General Partner
EMMIS TELEVISION
BROADCASTING, L.P.
By: Emmis Communications
Corporation (f/k/a Emmis
Broadcasting Corporation), its
General Partner
By:
-------------------------------
Title:
EMMIS LICENSE CORPORATION
KPWR LICENSE, INC.
EMMIS FM LICENSE
CORPORATION OF ST. LOUIS
EMMIS TELEVISION LICENSE
CORPORATION OF MOBILE
EMMIS 104.1 FM RADIO LICENSE
CORPORATION OF ST. LOUIS
EMMIS FM LICENSE
CORPORATION OF
INDIANAPOLIS
EMMIS FM RADIO LICENSE
CORPORATION OF
INDIANAPOLIS
EMMIS AM RADIO LICENSE
CORPORATION OF
INDIANAPOLIS
EMMIS LICENSE CORPORATION
OF NEW YORK
EMMIS RADIO LICENSE
CORPORATION OF NEW YORK
59
EMMIS 1310 AM RADIO LICENSE
CORPORATION OF
INDIANAPOLIS
EMMIS TELEVISION LICENSE
CORPORATION OF
HONOLULU
EMMIS 105.7 FM RADIO LICENSE
CORPORATION OF
INDIANAPOLIS
EMMIS TELEVISION LICENSE
CORPORATION OF NEW ORLEANS
EMMIS 106.5 FM LICENSE
CORPORATION OF ST. LOUIS
EMMIS FM LICENSE
CORPORATION OF CHICAGO
EMMIS TELEVISION LICENSE
CORPORATION OF GREEN BAY
By:
-------------------------------
Title:
60
TRAVELERS CORPORATE LOAN
FUND, INC.
BY: TRAVELERS ASSET MANAGEMENT
INTERNATIONAL CORPORATION
By:
-------------------------------
Title:
61
WEBSTER BANK
By:
------------------------
Title: