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EXHIBIT 4(d)
AMENDMENT NO. 3 TO CREDIT AGREEMENT
AMENDMENT NO. 3, dated as of December 1, 2000, to the Credit
Agreement, dated as of January 27, 2000, as amended by Omnibus Amendment No. 1
and Amendment No. 1 to Credit Agreement dated as of February 4, 2000 and
Amendment No. 2 and Consent to Credit Agreement dated as of August 23, 2000 (the
"Credit Agreement"), among (a) REGENT BROADCASTING, INC., a Delaware corporation
(the "BORROWER"), (b) REGENT COMMUNICATIONS, INC., a Delaware corporation (the
"PARENT COMPANY" and, together with the Borrower, collectively, the "PRINCIPAL
COMPANIES" and, singly, a "PRINCIPAL COMPANY"), (c) the several financial
institutions from time to time party to the Credit Agreement as lenders
thereunder ("LENDERS"), and (d) FLEET NATIONAL BANK, as Administrative Agent for
the Lenders (the "ADMINISTRATIVE AGENT"), FLEET NATIONAL BANK, as Issuing
Lender, GENERAL ELECTRIC CAPITAL CORPORATION, as Syndication Agent for the
Lenders, and DRESDNER BANK AG, NEW YORK AND GRAND CAYMAN BRANCHES, as
Documentation Agent for the Lenders.
RECITALS
The Borrower, the Parent Company, the Required Lenders and the
Administrative Agent have agreed to amend certain of the provisions contained in
the Loan Documents and the Credit Agreement, all as set forth in or required by
this Amendment No. 3 ("this Agreement").
Accordingly, the parties hereto hereby agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1. DEFINITIONS IN CREDIT AGREEMENT. Unless otherwise defined
herein, terms defined in the Credit Agreement (as amended hereby) are used
herein as therein defined.
ARTICLE II
AMENDMENTS AND WAIVERS
Effective as of December 1, 2000 ("Effective Date"), and subject always
in any event to the provisions of Article III hereof:
SECTION 2.1. LENDER WAIVERS. The Lenders hereby waive the Borrower's
performance of and compliance with the Maximum Consolidated Corporate Overhead
covenant contained in Section 9.4(d) of the Credit Agreement insofar as and to
the extent that such covenants are applicable to the period ended December 31,
2000. The
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execution, delivery and effectiveness of the Agreement shall not, except as
otherwise stated herein, constitute a waiver of any provisions of, or any
obligations of the Borrower under the Credit Agreement.
SECTION 2.2. NEW DEFINED TERMS. Section 1.1 of the Credit Agreement is
hereby further amended by adding thereto each of the following new defined
terms:
"Amendment No. 3" means Amendment No. 3 to Credit
Agreement, dated as of December 1, 2000, among the Borrower,
the Parent Company, the Required Lenders and the
Administrative Agent, and upon the terms of which each of the
parties hereto has agreed to amend this Agreement.
"Amendment No. 3 Effective Date" means December 1,
2000, the so-called "Effective Date" of Amendment No. 3 to
Credit Agreement.
"New Markets" means Markets in which the Borrower and
its Subsidiaries did not operate Radio Stations prior to the
Amendment No. 3 Effective Date.
"New Markets Entered" means New Markets entered into
by the Borrower and its Subsidiaries through any Acquisitions;
provided, however, that the Borrower or such Subsidiary
acquires two (2) or more Radio Stations in such New Market.
"Markets Exited" means Markets in which the Borrower
and its Subsidiaries sell or otherwise dispose of all Radio
Stations on or following the Amendment No. 3 Effective Date
other than the Palmdale, California Market.
SECTION 2.3. AMENDMENT OF SECTION 1.1. Section 1.1 of the Credit
Agreement is hereby further amended by amending and restating the definition of
"Consolidated Corporate Overhead" to read in its entirety as follows:
"Consolidated Corporate Overhead" means, in relation
to the Parent Company and its Subsidiaries for any period, the
portion of the corporate overhead of the Parent Company and
its Subsidiaries for such period not directly allocable to the
operation of Radio Stations or other operating assets, LESS,
without duplication, and only to the extent reflected as a
charge against such portion of the corporate overhead for such
period, any non-cash charges or expenses or non-cash losses
(including non-cash losses on Sales of assets outside of the
ordinary course of business), all as determined on a
consolidated basis in accordance with GAAP; provided, however,
that, for purposes of calculating the Consolidated Corporate
Overhead of the Parent Company and its Subsidiaries for any
period, there shall be excluded from such Consolidated
Corporate Overhead for such period, the SUM (without
duplication) of Consolidated Eligible Charges for such period
of the kind described in paragraph (a), (b) or (c) of the
definition of that term.
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SECTION 2.4. AMENDMENT OF SECTION 9.4(d). Section 9.4(d) of the Credit
Agreement is amended by amending and restating subsection (d) to read in its
entirety as follows:
"(d) MAXIMUM CONSOLIDATED CORPORATE OVERHEAD. Permit the
Consolidated Corporate Overhead for any Fiscal Year below to exceed the
amount set forth opposite such Fiscal Year below:
FISCAL YEAR MAXIMUM CONSOLIDATED CORPORATE OVERHEAD
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2000 $3,750,000
2001 $4,800,000
2002 $5,400,000
2003 $5,700,000
2004 $6,000,000
2005 $6,200,000
2006 $6,500,000
provided, however, that the amount of the maximum Consolidated
Corporate Overhead shown above for any Fiscal Year: (i) shall be
increased by $200,000 for each New Market Entered during the period
from the Amendment No. 3 Effective Date through the last day of such
Fiscal Year ("REFERENCE PERIOD"); and (ii) shall be decreased by
$200,000 for each two (2) Markets Exited for such Reference Period."
ARTICLE III
CONDITIONS PRECEDENT
Each of the amendments and waivers to the Loan Documents and the Credit
Agreement set forth in Article II of this Agreement shall be effective and in
full force and effect as of and from and after the Effective Date, provided that
each of the following conditions precedent shall first be satisfied:
SECTION 3.1. AMENDMENT DOCUMENT. The Administrative Agent shall have
received counterparts of this Agreement duly executed by each of the Borrower,
the Parent Company, and also by the Required Lenders.
SECTION 3.2. REPRESENTATIONS AND WARRANTIES. Each of the
representations and warranties made by the Borrower and the Parent Company
pursuant to this Agreement shall be true and correct in all material respects on
and as of the date the Borrower and the Parent Company execute and deliver this
Agreement with the same full force and effect as if made and repeated on and as
of such date.
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SECTION 3.3. FEES, COSTS AND EXPENSES.
(a) The Borrower shall have paid to the Administrative Agent,
upon the date the Required Lenders execute and deliver this Agreement,
and for the account of the Lenders consenting to this Agreement as
provided below, a non-refundable amendment fee in the total amount
equal to three one-hundredths of one percent (0.03%) of the aggregate
amount of the Commitments of the Consenting Lenders (as defined below)
(the "AMENDMENT FEE"). When this Agreement shall become effective, each
Lender that shall have given to the Administrative Agent, by 5:00 p.m.,
Boston, Massachusetts time, on February 8, 2001, confirmation in
writing (whether by facsimile transmission or otherwise), satisfactory
to the Administrative Agent, of such Lender's consent to, and execution
and delivery of, this Agreement (each, a "CONSENTING LENDER"), shall
become entitled to receive a share of the Amendment Fee, such share to
be equal to three one-hundredths of one percent (0.03%) of such
Lender's Commitment in effect on the date the Required Lenders execute
and deliver this Agreement. Promptly after this Agreement shall have
become effective, the Administrative Agent shall remit to each
Consenting Lender its share as determined above of the Amendment Fee
received by the Administrative Agent from the Borrower.
(b) The Borrower shall have paid in full to special counsel
for the Administrative Agent, all of the Attorney Costs of special
counsel to the Administrative Agent incurred from time to time through
February 8, 2001 and that are payable by the Borrower pursuant to
Section 12.4 of the Credit Agreement and for which an invoice shall
have been submitted by special counsel for the Administrative Agent to
the Borrower on or prior to February 8, 2001.
ARTICLE IV
REPRESENTATIONS, WARRANTIES AND COVENANTS
Each of the Borrower and the Parent Company represents and warrants to
and covenants with the Administrative Agent and the Lenders as follows:
SECTION 4.1. REPRESENTATIONS IN LOAN DOCUMENTS. Each of the
representations and warranties made by or on behalf of each of the Principal
Companies to the Administrative Agent and the Lenders in the Loan Documents was
true and correct in all material respects when made and is true and correct in
all material respects on and as of the date hereof, EXCEPT (a) as affected by
the consummation of the transactions contemplated by the Loan Documents
(including this Agreement), and (b) to the extent that any such representation
or warranty relates by its express terms solely to a prior date.
SECTION 4.2. CORPORATE AUTHORITY, ETC. The execution and delivery by
each Principal Company of this Agreement, and the performance by each Principal
Company of its agreements and obligations under this Agreement, have been duly
and properly authorized by all necessary corporate or other action on the part
of each of the Principal Companies, and do not and will not conflict with,
result in any violation of, or
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constitute any default under, (a) any provision of any Governing Document of any
Principal Company, (b) any Contractual Obligation of any Principal Company, or
(c) any Applicable Law.
SECTION 4.3. VALIDITY, ETC. This Agreement has been duly executed and
delivered by each Principal Company and constitutes the legal, valid and binding
obligation of each Principal Company, enforceable against it in accordance with
its terms, except as such enforceability may be limited by bankruptcy,
reorganization, insolvency, moratorium or other similar laws at the time in
effect affecting the enforceability of the rights of creditors generally and to
general equitable principles. Each of the Principal Companies hereby ratifies
and confirms in all respects all of the Obligations as modified hereby.
SECTION 4.4. NO DEFAULTS. After giving effect to this Agreement, no
Defaults or Events of Default are continuing under the Credit Agreement or any
of the other Loan Documents.
SECTION 4.5. PAYMENTS. The Borrower hereby promises to pay, not later
than February 8, 2001: (a) to the Administrative Agent for the account of the
Lenders, the amendment fee referred to in Section 3.3(a); and (b) to special
counsel for the Administrative Agent, all of the Attorney Costs of such special
counsel referred to in Section 3.3(b).
ARTICLE V
PROVISIONS OF GENERAL APPLICATION
SECTION 5.1. NO OTHER CHANGES. Except as otherwise expressly provided
by this Agreement, all of the terms, conditions and provisions of the Credit
Agreement and each of the other Loan Documents, and all rights and remedies of
the Administrative Agent and the Lenders thereunder, shall remain unaltered.
SECTION 5.2. OTHER PROVISIONS. This Agreement is a Loan Document for
all purposes of the Credit Agreement and each of the other Loan Documents. This
Agreement and the rights and obligations hereunder of each of the parties hereto
shall in all respects be construed in accordance with and governed by the laws
of the Commonwealth of Massachusetts. This Agreement may be executed in any
number of counterparts and by different parties hereto in separate counterparts,
but all of such counterparts shall together constitute but one and the same
agreement. In making proof of this Agreement, it shall not be necessary to
produce or account for more than one counterpart hereof signed by each of the
parties hereto.
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IN WITNESS WHEREOF, the parties hereto have caused this
AMENDMENT NO. 3 TO CREDIT AGREEMENT to be executed and delivered by their
respective authorized officers under seal as of the date first above written.
THE PARENT COMPANY:
REGENT COMMUNICATIONS,
INC., as the Parent Company and
a Guarantor
By: /s/ Matthew A. Yeoman
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Name: Matthew A. Yeoman
Title: Vice President - Finance
THE BORROWER:
REGENT BROADCASTING,
INC., as Borrower
By: /s/ Matthew A. Yeoman
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Name: Matthew A. Yeoman
Title: Vice President - Finance
THE ADMINISTRATIVE AGENT:
FLEET NATIONAL BANK, individually and
as Administrative Agent
By: /s/ Robert F. Milordi
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Name: Robert F. Milordi
Title: Managing Director
THE SYNDICATION AGENT:
GENERAL ELECTRIC CAPITAL
CORPORATION, individually and as
Syndication Agent
By: /s/ Kenneth M. Gacevich
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Name: Kenneth M. Gacevich
Title: Duly Authorized Signatory
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THE DOCUMENTATION AGENT:
DRESDNER BANK AG, NEW YORK
AND GRAND CAYMAN BRANCHES,
individually and as Documentation Agent
By: /s/ William E. Lambert
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Name: William E. Lambert
Title: Vice President
By: /s/ Brian E. Haughney
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Name: Brian E. Haughney
Title: Assistant Vice President
THE LENDERS:
FIRSTAR BANK, N.A.
By: /s/ Christian Jon Bugyis
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Name: Christian Jon Bugyis
Title: Vice President - Finance
U.S. BANK NATIONAL ASSOCIATION
By: /s/ Raymond S. Osburn
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Name: Raymond S. Osburn
Title: Vice President
SUMMIT BANK
By: /s/ Donald J. Oberg, Jr.
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Name: Donald J. Oberg, Jr.
Title: Vice President
MICHIGAN NATIONAL BANK
By: /s/ Jason W. Bierlein
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Name: Jason W. Bierlein
Title: Commercial Relationship Manager
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THE CIT GROUP/EQUIPMENT
FINANCING, INC.
By: /s/ Michael L. Monahan
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Name: Michael L. Monahan
Title:Vice President