EXHIBIT 4e
REGENT BROADCASTING, INC.
REGENT COMMUNICATIONS, INC.
AMENDMENT AGREEMENT
AMENDMENT AGREEMENT, dated as of February 14, 2003, by and among (a)
REGENT BROADCASTING, INC., a Delaware corporation ("BORROWER"), (b) REGENT
COMMUNICATIONS, INC., a Delaware corporation ("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 this Agreement as Lenders hereunder, and (d) FLEET NATIONAL BANK, as
administrative agent ("ADMINISTRATIVE AGENT") for the several financial
institutions from time to time party as lenders to the Credit Agreement referred
to below (collectively, the "LENDERS"), FLEET NATIONAL BANK, as Issuing Lender,
GENERAL ELECTRIC CAPITAL CORPORATION, as syndication agent for the Lenders
("SYNDICATION AGENT"), and DRESDNER BANK AG, NEW YORK AND GRAND CAYMAN BRANCHES,
as documentation agent for the Lenders ("DOCUMENTATION AGENT"). Reference is
made to the Credit Agreement, dated as of January 27, 2000 (as amended from time
to time, the "CREDIT AGREEMENT"), by and among the Principal Companies, the
Lenders, the Administrative Agent, the Issuing Lender, the Syndication Agent and
the Documentation Agent.
The Principal Companies have requested the Lenders to amend
certain of the provisions of the Credit Agreement upon the terms contained in
this Amendment Agreement ("THIS AGREEMENT"). Required Lenders have agreed to
amend the Credit Agreement as requested by the Principal Companies, all upon the
terms and subject to the conditions contained in 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 from time to time amended
prior to the date hereof) are used herein as therein defined.
SECTION 1.2. NEW DEFINED TERMS. Each of the following defined terms
shall, when used in this Agreement, have the following meanings:
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"AMENDMENT EFFECTIVE DATE" means February 14, 2003, the effective date
of this Agreement and the effective date of the Amendments (SUBJECT, ALWAYS, to
the provisions of Article II and Article III hereof).
"AMENDMENTS" means, collectively, the amendments to the Credit
Agreement adopted by the Principal Companies and Required Lenders upon the terms
and subject to the conditions contained in Article II and in Article III of this
Agreement.
ARTICLE II. AMENDMENT OF CREDIT AGREEMENT
SECTION 2.1. AMENDMENTS. In reliance on the agreements, representations
and warranties of the Principal Companies contained in this Agreement, but
subject always to the satisfaction of the conditions precedent contained in
Article III of this Agreement, the Lenders that are parties to this Agreement
(which Lenders constitute Required Lenders) hereby agree with the Principal
Companies to amend the Credit Agreement as follows:
(a) AMENDMENT OF DEFINED TERM. Subclause (ii) of the definition of the
defined term "CONSOLIDATED FIXED CHARGES" appearing in Section 1.1 of the Credit
Agreement is hereby amended:
(i) by deleting the phrase "but only if and to the extent
that such Restricted Payments are permitted by
Section 9.7" which appears at the end of such
subclause (ii) of the defined term; and
(ii) by inserting in place thereof the following phrase:
"but only if and to the extent that such
Restricted Payments are expressly permitted
by paragraph (d) of Section 9.7"
(b) AMENDMENT OF NEGATIVE COVENANT. Paragraph (g) of Section 9.7 of the
Credit Agreement was adopted and made a part of Section 9.7 upon the terms
contained in Amendment No. 2 to Credit Agreement. Paragraph (g) of Section 9.7
is hereby amended and restated in its entirety to read as follows:
"(g) cash payments by the Borrower to the Parent Company for
any repurchases by the Parent Company of any of its Equity Interests,
and cash payments by the Parent Company for and in connection with any
repurchases of any of its Equity Interests for cash; provided, however,
that:
(i) the aggregate amount of all of such cash payments
made by the Borrower to the Parent Company from time
to time after
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January 1, 2003 for all of such repurchases by the
Parent Company shall not exceed $10,000,000 in the
aggregate;
(ii) the aggregate amount of all of such cash payments
made by the Parent Company from time to time after
January 1, 2003 for and in connection with all of
such repurchases by the Parent Company shall not
exceed $10,000,000 in the aggregate;
(iii) with respect to each such repurchase, the
Consolidated Leverage Ratio as of the then most
recent Covenant Determination Date, as determined on
a Pro Forma Basis after giving effect to such
repurchase and any related increases in Consolidated
Total Debt, shall not exceed 5.00:1.00; and
(iv) at the time of each of such payments and repurchases,
no Event of Default shall be continuing or shall
result therefrom."
Upon satisfaction of all of the conditions precedent contained in
Article III of this Agreement, the Amendments to the Credit Agreement set forth
in this Section 2.1 shall be deemed effective as of and from and after the
Amendment Effective Date.
SECTION 2.2. LIMITATIONS. Anything in Section 2.1 of this Agreement
express or implied to the contrary notwithstanding, if any of the conditions set
forth in Article III hereof are not satisfied on a timely basis as provided in
Article III, then the Amendments set forth in Section 2.1 of this Agreement
shall, for all purposes of this Agreement and the Credit Agreement, be void with
the same full force and effect as if the Amendments had never been adopted by
the Principal Companies and the Required Lenders. If such conditions shall be
satisfied in accordance with the terms set forth in Article III, then the
Amendments shall remain at all times in full force and effect from and after the
Amendment Effective Date, without any further action on the part of any of the
parties hereto.
SECTION 2.3. NO WAIVER OF OBLIGATIONS. The Amendments shall not operate
(a) as waivers of any of the rights, remedies, powers or privileges of any of
the Lenders or Agents under the Credit Agreement or any of the other Loan
Documents, except as and to the limited extent expressly provided by this
Agreement, or (b) as waivers of or consents to any Defaults or Events of Default
under the Credit Agreement or any of the other Loan Documents.
SECTION 2.4. NO OTHER MODIFICATIONS OR AMENDMENTS. Except as and to the
limited extent otherwise expressly provided by this Agreement, the Principal
Companies shall at all times remain bound by the provisions of the Credit
Agreement and the other Loan Documents.
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SECTION 2.5. BINDING EFFECT. Subject, always, in any event to the
provisions of Article III and Section 2.2 hereof, the Amendments shall, upon
execution and delivery of this Agreement by Lenders constituting Required
Lenders, be binding upon each of the Lenders and Agents.
ARTICLE III. CONDITIONS PRECEDENT
Each of the Amendments set forth in Section 2.1 of this Agreement shall
be effective and in full force and effect on and as of, and also from and after,
the Amendment Effective Date, i.e., February 14, 2003; provided, however, that
each of the following conditions precedent shall first be satisfied:
SECTION 3.1. EXECUTION AND DELIVERY OF THIS AGREEMENT. The
Administrative Agent shall have received, not later than the Administrative
Agent's close of business in Boston, Massachusetts on February 25, 2003,
counterparts of this Agreement duly executed and delivered by the Principal
Companies and Required Lenders.
ARTICLE IV. REPRESENTATIONS AND WARRANTIES
Each of the Principal Companies, jointly and severally, represents and
warrants to each of the Lenders and Agents on and as of the date hereof, after
giving effect to this Agreement, as follows:
SECTION 4.1. REPRESENTATIONS IN CREDIT AGREEMENT. Each of the
representations and warranties made by or on behalf of each of the Principal
Companies to the Lenders and Agents in the Credit Agreement or in any of the
other Loan Documents is true and correct in all material respects on and as of
the date hereof after giving effect to this Agreement, except: (a) as affected
by the consummation of the transactions contemplated by the Loan Documents
(including this Agreement); (b) to the extent that any such representation or
warranty relates by its express terms solely to a prior date; and (c) as and to
the limited extent otherwise disclosed to each of the Lenders and Agents in
writing prior to the date hereof. 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 4.2. CORPORATE AUTHORITY; ETC. The execution and delivery by
each of the Principal Companies of this Agreement, and the performance by each
of the Principal Companies 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 constitute any default under,
(a) any provision of any Governing Documents of either of the Principal
Companies, (b) any Contractual Obligations of either of the Principal Companies,
or (c) any Applicable Law. No
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approval, authorization or other action by, or declaration to or filing with,
any Governmental Authority or any other Person is required to be obtained or
made by either of the Principal Companies in connection with its execution,
delivery or performance of this Agreement.
SECTION 4.3. VALIDITY; ETC. This Agreement has been duly executed and
delivered by each of the Principal Companies and constitutes the legal, valid
and binding obligation of each of the Principal Companies, 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.
ARTICLE V. COVENANTS OF PRINCIPAL COMPANIES
Each of the Principal Companies, jointly and severally, covenants and
agrees with each of the Lenders and Agents, such covenants to remain in full
force and effect and binding upon the Principal Companies at all times from and
after the Amendment Effective Date and until all of the Obligations shall have
been paid in full and in cash, as follows:
SECTION 5.1. INFORMATION REGARDING PERMITTED EQUITY REPURCHASES; ETC.
(a) The Principal Companies shall from time to time furnish to the
Lenders and Agents such reasonably detailed information pertaining to the making
of Restricted Payments of the kind described in paragraph (g) of Section 9.7 of
the Credit Agreement as the Administrative Agent or Required Lenders may from
time to time reasonably request. All of such information shall be presented in
such detail and shall be in such written form as shall be reasonably
satisfactory to the Administrative Agent and Required Lenders.
(b) If any repurchases by the Parent Company of any of its Equity
Interests in compliance with Section 9.7(g) of the Credit Agreement (each such
repurchase being hereinafter called a "PERMITTED EQUITY REPURCHASE") shall be
completed during any Fiscal Quarter ending after December 31, 2002, the
Principal Companies shall include in the Compliance Certificate furnished to the
Administrative Agent and the Lenders pursuant to Section 8.2(a) of the Credit
Agreement with the financial statements for such Fiscal Quarter or (as the case
may be) for the Fiscal Year ending with the end of such Fiscal Quarter the
following information regarding each of the Permitted Equity Repurchases
completed by the Parent Company during such Fiscal Quarter:
(i) the aggregate amount of all of the payments made in cash
by or on behalf of the Parent Company for and in connection with all of
the
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Permitted Equity Repurchases completed by the Parent Company during
such Fiscal Quarter, and the aggregate amount of all of the payments
made in cash by or on behalf of the Parent Company from time to time
after January 1, 2003 for and in connection with all of the Permitted
Equity Repurchases completed after January 1, 2003 and on or prior to
the last day of such Fiscal Quarter;
(ii) the number and kind of Equity Interests of the Parent
Company acquired by the Parent Company in connection with all of the
Permitted Equity Repurchases completed during such Fiscal Quarter; and
(iii) the Consolidated Leverage Ratio as of the last day of
such Fiscal Quarter, as determined on a Pro Forma Basis after giving
effect to all of the Permitted Equity Repurchases completed by the
Parent Company during such Fiscal Quarter and after giving effect to
all increases in Consolidated Total Debt related to such Permitted
Equity Repurchases.
SECTION 5.2. FEES, COSTS AND EXPENSES. The Principal Companies shall
pay in full to special counsel for the Administrative Agent, not later than
February 28, 2003, all of the fees and out-of-pocket costs and expenses of
special counsel to the Administrative Agent, incurred in connection with this
Agreement, the Consent Agreement of October 29, 2002 ("CONSENT AGREEMENT"), the
Acquisition Documents (as defined in the Consent Agreement), the preparation and
issuance of the Letter of Credit (as defined in the Consent Agreement), and
attention to other matters under the Loan Documents, from time to time from and
after October 18, 2002 through and including February 7, 2003 and for which an
invoice shall have been submitted by special counsel for the Administrative
Agent on or prior to February 7, 2003.
ARTICLE VI. PROVISIONS OF GENERAL APPLICATION
SECTION 6.1. 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 of the rights and
remedies of the Lenders, the Issuing Lender and the Agents thereunder, shall
remain unaltered.
SECTION 6.2. REAFFIRMATIONS, RATIFICATIONS AND RELATED MATTERS. In
order to induce Required Lenders to execute and deliver this Agreement, and by
entering into this Agreement, each of the Principal Companies:
(a) reaffirms all covenants made by it in each Loan Document to which
it is a party;
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(b) ratifies and reaffirms (i) all of its payment and performance
Obligations, contingent or otherwise, and (ii) each grant of security interests
and Liens in favor of the Lenders and Agents under each of the Loan Documents to
which it is a party;
(c) agrees and acknowledges that such ratification and reaffirmation is
not a condition to the continuing validity and binding effect of any of the Loan
Documents;
(d) agrees and acknowledges that it does not have any grounds to
challenge the effectiveness, genuineness, validity, collectibility or
enforceability of the Credit Agreement or any of the other Loan Documents, any
of the terms or conditions thereof or thereunder, or any of the security
interests or Liens in favor of the Lenders and Agents with respect to the
Collateral; and
(e) agrees and acknowledges that it does not possess, and hereby
waives, discharges and holds harmless each of the Lenders and Agents from and
against, and agrees not to allege or pursue, any action, cause of action, suit,
debt, claim, counterclaim, cross-claim, defense, offset, demand or other right
of action whatsoever, whether in law, equity or otherwise, against any of the
Lenders or Agents by reason of any matter or cause whatsoever, with respect to
any events or omissions occurring or arising at any time on or prior to the date
hereof and relating to the Credit Agreement or any of the other Loan Documents.
SECTION 6.3. OTHER PROVISIONS. This Agreement is the only agreement
among the Principal Companies, the Lenders and Agents with respect to the
amendment arrangements covered by this Agreement and supersedes all (if any)
prior term sheets, letters of intent and other communications (whether written
or oral) with respect to the subject matter hereof. 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.
SECTION 6.4. WAIVER OF TRIAL BY JURY. THE PARTIES HERETO EACH HEREBY
WAIVE THEIR RESPECTIVE RIGHTS TO A TRIAL BY JURY OF ANY CLAIM OR CAUSE OF ACTION
BASED UPON OR ARISING OUT OF OR RELATED TO THIS AGREEMENT. IN ANY ACTION,
PROCEEDING OR OTHER LITIGATION OF ANY TYPE BROUGHT BY ANY
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OF THE PARTIES AGAINST ANY OTHER PARTY OR PARTIES, WHETHER WITH RESPECT TO
CONTRACT CLAIMS, TORT CLAIMS, OR OTHERWISE, THE PARTIES HERETO EACH HEREBY AGREE
THAT ANY SUCH CLAIM OR CAUSE OF ACTION SHALL BE TRIED BY A COURT TRIAL WITHOUT A
JURY. WITHOUT LIMITING THE FOREGOING, THE PARTIES FURTHER HEREBY AGREE THAT
THEIR RESPECTIVE RIGHTS TO A TRIAL BY JURY ARE WAIVED BY OPERATION OF THIS
SECTION 6.4 AS TO ANY ACTION, COUNTERCLAIM OR OTHER PROCEEDING WHICH SEEKS, IN
WHOLE OR IN PART, TO CHALLENGE THE VALIDITY OR ENFORCEABILITY OF THIS AGREEMENT
OR ANY PROVISION HEREOF. THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS,
RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS AGREEMENT.
SECTION 6.5. TIME OF ESSENCE OF THIS AGREEMENT; ETC. The parties hereto
hereby acknowledge that time is of the essence of this Agreement. This Agreement
shall be null and void for all purposes unless the Administrative Agent shall
receive from the Principal Companies, not later than the Administrative Agent's
close of business in Boston, Massachusetts on February 14, 2003, ten (10) signed
originals of this Agreement duly and properly executed and delivered by each of
the Principal Companies.
SECTION 6.6. DELIVERY BY TELECOPIER. Delivery of the signature pages to
this Agreement by telecopier shall be as effective as delivery of manually
executed counterparts of this Agreement.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK]
***SIGNATURE PAGES FOLLOW***
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IN WITNESS WHEREOF, the parties hereto have caused this AMENDMENT
AGREEMENT to be executed and delivered by their respective authorized officers
under seal as of the date first above written.
THE BORROWER:
REGENT BROADCASTING, INC.,
as the Borrower
By: /s/Robert E. Allen
Name: Robert E. Allen
Title: V.P. Finance & Accounting
THE PARENT COMPANY:
REGENT COMMUNICATIONS, INC.,
as the Parent Company and a Guarantor
By: /s/ Robert E. Allen
Name: Robert E. Allen
Title: V.P. Finance & Accounting
SIGNATURE PAGE TO AMENDMENT AGREEMENT, DATED AS OF FEBRUARY 14, 2003
***SIGNATURE PAGES FOLLOW***
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THE ADMINISTRATIVE AGENT AND A LENDER:
FLEET NATIONAL BANK, as the Administrative
Agent, the Issuing Lender and a Lender
By: /s/ Andre J. Paquette
Name: Andre J. Paquette
Title: Vice President
SIGNATURE PAGE TO AMENDMENT AGREEMENT, DATED AS OF FEBRUARY 14, 2003
***SIGNATURE PAGES FOLLOW***
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THE SYNDICATION AGENT AND A LENDER:
GENERAL ELECTRIC CAPITAL
CORPORATION, as the
Syndication Agent and a Lender
By: /s/ Stephen W. Hipp
Name: Stephen W. Hipp
Title: Authorized Signatory
SIGNATURE PAGE TO AMENDMENT AGREEMENT, DATED AS OF FEBRUARY 14, 2003
***SIGNATURE PAGES FOLLOW***
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THE DOCUMENTATION AGENT AND A LENDER:
DRESDNER BANK AG, NEW YORK
AND GRAND CAYMAN BRANCHES,
as the Documentation Agent and a Lender
By: /s/ Brian Smith
Name: Brian Smith
Title: Director
By: /s/ Brian Schneider
Name: Brian Schneider
Title: Vice President
SIGNATURE PAGE TO AMENDMENT AGREEMENT, DATED AS OF FEBRUARY 14, 2003
***SIGNATURE PAGES FOLLOW***
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A LENDER:
US BANK, NATIONAL ASSOCIATION, as a Lender
By: /s/ Christian Jon Bugyis
Name: Christian J. Bugyis
Title: Vice President
SIGNATURE PAGE TO AMENDMENT AGREEMENT, DATED AS OF FEBRUARY 14, 2003
***SIGNATURE PAGES FOLLOW***
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A LENDER:
STANDARD FEDERAL BANK, N.A. as a Lender
By: /s/ Jason W. Bierlein
Name: Jason W. Bierlein
Title: Assistant Vice President
SIGNATURE PAGE TO AMENDMENT AGREEMENT, DATED AS OF FEBRUARY 14, 2003
***SIGNATURE PAGE FOLLOWS***
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A LENDER:
THE CIT GROUP/EQUIPMENT
FINANCING, INC., as a Lender
By: /s/ Steven K. Reedy
Name: Steven K. Reedy
Title: Vice President
SIGNATURE PAGE TO AMENDMENT AGREEMENT, DATED AS OF FEBRUARY 14, 2003