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EXHIBIT 4(y)
REGENT COMMUNICATIONS, INC.
SIXTH AMENDMENT AND LIMITED CONSENT TO CREDIT AGREEMENT
This SIXTH AMENDMENT AND LIMITED CONSENT TO CREDIT AGREEMENT
(this "AMENDMENT") is dated as of February 24, 1999 and entered into by and
among Regent Communications, Inc., a Delaware corporation ("COMPANY"), the
financial institutions listed on the signature pages hereof ("LENDERS"), General
Electric Capital Corporation, as documentation agent ("DOCUMENTATION AGENT") and
Bank of Montreal, Chicago Branch, as agent for Lenders ("AGENT"), and the Credit
Support Parties (as defined in Section 5 hereof) listed on the signature pages
hereof, and is made with reference to that certain Credit Agreement dated as of
November 14, 1997, as amended by that certain First Amendment to Credit
Agreement dated as of February 16, 1998, that certain Second Amendment and
Limited Waiver to Credit Agreement dated as of June 10, 1998, that certain Third
Amendment to Credit Agreement dated as of August 14, 1998, that certain Fourth
Amendment, Limited Consent and Limited Waiver to Credit Agreement, First
Amendment to Subsidiary Guaranty and First Amendment to Pledge and Security
Agreement dated as of October 16, 1998 and that certain Fifth Amendment to
Credit Agreement dated as of November 23, 1998 (as so amended, the "CREDIT
AGREEMENT"), by and among Company, Lenders and Agent. Capitalized terms used
herein without definition shall have the same meanings herein as set forth in
the Credit Agreement.
RECITALS
WHEREAS, Company and Lenders desire to amend the Credit
Agreement to make certain amendments as set forth below;
NOW, THEREFORE, in consideration of the premises and the
agreements, provisions and covenants herein contained, the parties hereto agree
as follows:
SECTION 1. AMENDMENTS TO THE CREDIT AGREEMENT
1.1 AMENDMENTS TO SECTION 1: DEFINITIONS
A. NEW DEFINITIONS. Subsection 1.1 of the Credit Agreement is hereby
amended by adding the following definitions thereto, which shall be inserted in
proper alphabetical order:
"AUTOMATION DATE" means no later than (i) May 1, 1999 for the
Palmdale Stations, (ii) June 1, 1999 for the Mansfield Stations, (iii)
June 30, 1999 for the Chico Stations and (iv) September 1, 1999 for the
Redding Stations or any other Stations.
"ST. CLOUD ACQUISITION" means, the acquisition by Company and
its subsidiaries of all of the assets of radio stations WJON-AM and
WWJO-FM, each licensed to St. Cloud, Minnesota, and radio station
KMXK-FM, licensed to Cold Spring, Minnesota pursuant to that certain
Purchase Agreement dated January 5, 1999."
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B. AMENDED DEFINITIONS.
(i) The definition of Acquisition Proceeds contained in
subsection 1.1 of the Credit Agreement is hereby amended and restated in its
entirety as follows:
"`ACQUISITION PROCEEDS' means the proceeds (net of the cost of
issuance thereof) of any additional Company Common Stock,
Company Preferred Stock or any other equity securities issued
by Company in accordance with this Agreement which are issued
to be used to consummate Permitted Acquisitions and pay fees
and expenses related thereto and at least a portion of which
are actually used within 90 days of such issuance to
consummate a Permitted Acquisition and pay fees and expenses
related thereto and the balance of which are committed to be
used to consummate Permitted Acquisitions ("SPECIFIED
ACQUISITIONS") and pay fees and expenses related thereto with
respect to which the appropriate filings for transfer have
been made with the FCC within 180 days of such issuance;
provided that if any Specified Acquisition is terminated or
does not close for any reason, then immediately upon such
termination or non-closure, the Acquisition Proceeds committed
to such Specified Acquisition shall cease to be Acquisition
Proceeds and shall be applied to the repayment of the Loans
and the reduction of the Commitment as set forth in subsection
2.4B(iii)(c)."
(ii) The definition of Consolidated Operating Cash Flow
contained in subsection 1.1 of the Credit Agreement is hereby amended and
restated in its entirety as follows:
"`CONSOLIDATED OPERATING CASH FLOW' means, for any period, (x)
the sum, without duplication, of the amounts for such period
of (i) Consolidated Net Income, (ii) Consolidated Interest
Expense, (iii) income taxes paid in Cash, (iv) total
depreciation expense, (v) total amortization expense, (vi)
other non-Cash items reducing Consolidated Net Income
including, without limitation, accrued but unpaid income
taxes, but excluding accrued and unpaid Overhead, and (vii)
extraordinary losses less (y) other non-Cash items increasing
Consolidated Net Income, less (z) extraordinary gains, all of
the foregoing as determined on a consolidated basis for
Company and its Subsidiaries in conformity with GAAP; provided
that for any period in which any Credit Party has acquired, or
disposed of, a Station, Consolidated Operating Cash Flow shall
be calculated on a pro forma basis satisfactory to Agent as if
such acquisition or disposition had occurred on the first date
of such period."
(iii) The definition of Consolidated Total Debt contained in
subsection 1.1 of the Credit Agreement is hereby amended by amending and
restating clause (i) of the proviso thereto as follows:
"(i) December 31, 1999,"
(iv) The definition of Consolidated Total Debt Ratio contained
in subsection 1.1 of the Credit Agreement is hereby amended and restated in its
entirety as follows:
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"`CONSOLIDATED TOTAL DEBT RATIO' means, as of any date of
determination, the ratio of (i) Consolidated Total Debt as of such date
of determination to (ii) Consolidated Operating Cash Flow for the four
consecutive Fiscal Quarter period ending as of the last day of the most
recent Fiscal Quarter for which a Compliance Certificate has been
delivered hereunder, as calculated in accordance with subsection 7.6C."
(v) The definition of Overhead contained in subsection 1.1 of
the Credit Agreement is hereby amended by adding the phrase ",deferred,
deferrable" immediately after the phrase "paid, payable" in the first line
thereof.
(vi) The definition of Regent of Charleston contained in
subsection 1.1 of the Credit Agreement is hereby amended and restated in its
entirety as follows:
"`REGENT OF CHARLESTON' means, prior to July 15, 1998, Regent
Broadcasting of Charleston, Inc., a Delaware corporation and
wholly-owned Subsidiary of Company and, on and after July 15, 1998,
Regent Broadcasting of South Carolina, Inc., a Delaware corporation and
wholly-owned Subsidiary of Company."
(vii) The definition of Charleston License Sub contained in
subsection 1.1 of the Credit Agreement is hereby amended and restated in its
entirety as follows:
"`CHARLESTON LICENSE SUB' means, prior to July 15, 1998,
Regent Licensee of Charleston, Inc., a Delaware corporation and
wholly-owned Subsidiary of Regent of Charleston and, on and after July
15, 1998, Regent Licensee of South Carolina, Inc., a Delaware
corporation and wholly-owned Subsidiary of Company."
C. DELETED DEFINITIONS. The definition of Adjusted Consolidated
Operating Cash Flow contained in subsection 1.1 of the Credit Agreement is
hereby deleted in its entirety and each reference to "Adjusted Consolidated
Operating Cash Flow" in the Credit Agreement and the other Loan Documents is
hereby amended to be a reference to "Consolidated Operating Cash Flow."
1.2 AMENDMENTS TO SECTION 2: AMOUNTS AND TERMS OF COMMITMENTS AND LOANS
A. RATE OF INTEREST: Subsection 2.2A of the Credit Agreement is hereby
amended by deleting the table set forth therein in its entirety and substituting
the following therefor:
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APPLICABLE MARGIN
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CONSOLIDATED BASE LIBOR
TOTAL DEBT RATIO RATE LOAN RATE LOAN
- ---------------- --------- ---------
Greater than or equal to 6.50:1.00 2.250% 3.500%
Greater than 6.25:1.00 but less than 6.50:1.00 2.000% 3.250%
Greater than 6.00:1.00 but less than 6.25:1.00 1.750% 3.000%
Greater than or equal to 5.50:1.00 but less than 1.500% 2.750%
6.00:1.00
Greater than or equal to 5.00:1.00 but less than 1.250% 2.500%
5.50:1.00:
Greater than or equal to 4.50:1.00 but less than 1.000% 2.250%
5.00:1.00
Greater than or equal to 4.00:1.00 but less than 0.750% 2.000%
4.50:1.00
Greater than or equal to 3.50:1.00 but less than 0.500% 1.750%
4.00:1.00
Less than 3.50:1.00: 0.250% 1.500%
B. PREPAYMENT OF LOANS. Subsection 2.4B(iii)(c) is hereby amended by
(i) deleting the reference to "Acquisition Proceeds" contained in the first
sentence thereof and (ii) adding the following proviso to the end of the first
sentence thereof:
" ; provided that as long as no Event of Default or Potential
Event of Default has occurred and is continuing (or would
result therefrom) and the Consolidated Total Debt Ratio is
equal to or less than 5.50:1.00 at the time of any such equity
issuance, then the foregoing prepayments to reduce the
Consolidated Total Debt Ratio to 4.50:1.00 shall only be
required with the net proceeds of an equity issuance (or
related series of equity issuances) for gross proceeds of
$20,000,000 or more, which are not Acquisition Proceeds."
1.3. AMENDMENTS TO SECTION 6: AFFIRMATIVE COVENANTS
A. MORTGAGES FOR CERTAIN STATIONS Subsection 6.12 of the Credit
Agreement is hereby amended by deleting each reference to "the one year
anniversary of the Closing Date" set forth therein and substituting a reference
to "December 31, 1999" in each case therefor.
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B. SALE OF STATIONS. A new subsection 6.13 is hereby added to the
Credit Agreement as follows:
"6.13 SALE OF CERTAIN STATIONS.
On or before March 30, 1999 (or June 30, 1999 with respect to
the Lake Tahoe Stations only), Company and its Subsidiaries
shall have entered into definitive sale agreements and made
the appropriate filings with the FCC for the sale, for fair
market value Cash consideration, of the Flagstaff Stations,
the Kingman Stations, the Lake Tahoe Stations or any other
Station or combination of Stations the sale of which is
reasonably expected to result in aggregate Net Cash Proceeds
sufficient (after application of such proceeds in accordance
with this Agreement) to achieve a Leverage Ratio of no more
than 6.75:1.00 (calculated on a pro forma basis to give effect
to such sales). Such sales shall be consummated and the Net
Cash Proceeds in respect thereof shall be applied to repay the
Loans and reduce the Commitments no later than June 30, 1999
(or September 30, 1999 with respect to the Lake Tahoe Stations
only)."
1.4. AMENDMENTS TO SECTION 7: NEGATIVE COVENANTS
A. MINIMUM INTEREST COVERAGE RATIO. Subsection 7.6A of the Credit
Agreement is hereby amended and restated in its entirety as follows:
" A. MINIMUM INTEREST COVERAGE RATIO. Company shall not permit
the ratio of (i) Consolidated Operating Cash Flow to (ii)
Consolidated Interest Expense for any four consecutive Fiscal
Quarter period ending as of the last day of any Fiscal Quarter
during any of the periods set forth below to be less than the
correlative ratio indicated:
MINIMUM INTEREST COVERAGE
PERIOD RATIO
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January 1, 1999 - March 31, 1999 0.95:1.00
April 1, 1999 - June 30, 1999 1.30:1.00
July 1, 1999 - September 30, 1999 1.40:1.00
October 1, 1999 - December 31, 1999 1.60:1.00
January 1, 2000 - March 31, 2000 1.75:1.00
April 1, 2000 and thereafter 2.00:1.00
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B. MINIMUM FIXED CHARGE COVERAGE RATIO. Subsection 7.6B of the Credit
Agreement is hereby amended and restated in its entirety as follows:
" B. MINIMUM FIXED CHARGE COVERAGE RATIO. Company shall not
permit the ratio of (i) Consolidated Operating Cash Flow to
(ii) Consolidated Fixed Charges Expense for any four
consecutive Fiscal Quarter period ending as
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of the last day of any Fiscal Quarter during any of the periods set forth below
to be less than the correlative ratio indicated:
MINIMUM FIXED COVERAGE
PERIOD RATIO
------ -----
January 1, 1999 - March 31, 1999 0.60:1.00
April 1, 1999 - June 30, 1999 0.80:1.00
July 1, 1999 - September 30, 1999 0.90:1.00
October 1, 1999 - December 31, 1999 1.05:1.00
January 1, 2000 and thereafter 1.10:1.00
"
C. MAXIMUM CONSOLIDATED TOTAL DEBT RATIO. Subsection 7.6C of the Credit
Agreement is hereby amended and restated in its entirety as follows:
" C. MAXIMUM CONSOLIDATED TOTAL DEBT RATIO. Company shall not
permit the ratio of (i) Consolidated Total Debt as of any date
during any of the periods set forth below to (ii) Consolidated
Operating Cash Flow for the four consecutive Fiscal Quarter
period ending as of the last day of the most recently
concluded Fiscal Quarter (including any Fiscal Quarter ending
as of such date of determination), to exceed the correlative
ratio indicated:
MAXIMUM
PERIOD LEVERAGE RATIO
------ --------------
January 1, 1999 - December 30, 1999 6.75:1.00
December 31, 1999 - March 30, 2000 6.25:1.00
March 31, 2000 - June 29, 2000 6.00:1.00
June 30, 2000 - September 29, 2000 5.75:1.00
September 30, 2000 - December 30, 2000 5.25:1.00
December 31, 2000 - March 30, 2001 4.75:1.00
March 31, 2001 - June 29, 2001 4.25:1.00
June 30, 2001 - September 29, 2001 3.75:1.00
September 30, 2001 and thereafter 3.50:1.00
"
D. CERTAIN CALCULATIONS. Subsection 7.6 of the Credit Agreement is
hereby further amended by adding a new subsection 7.6D at the end thereof as
follows:
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" D. CERTAIN ADJUSTMENTS AND CALCULATIONS. For purposes of
determining compliance with the financial covenants set forth in this
subsection 7.6, the following special adjustments and calculations
shall be permitted (without duplication) as specified for certain
financial covenants at the times and for the periods indicated (all
such calculations and adjustments shall be in form and substance
satisfactory to Agent and Requisite Lenders and, without limiting the
foregoing, to the extent any such adjustment or calculation is made on
the basis of projections or expected results, such adjustment or
calculation shall be revised to actual amounts when determined):
(i) Automation. With respect to any Stations subject to
automation of operations as described in Part 1 of Schedule 7.6D
annexed hereto, Company shall be permitted to increase Consolidated
Operating Cash Flow by the aggregate amount of annual cost savings that
the Company in good faith reasonably expects to realize by automating
such Stations in the amounts and for and as of the periods and dates of
determination as set forth in Part 1 of Schedule 7.6D; provided that
such automation increases (a) shall not apply to any Station that (y)
is the subject of any pending or completed Asset Sale or (z) has not
completed automation as of its applicable Automation Date, (b) shall
not apply for purposes of the financial covenants set forth in
subsections 7.6A and 7.6B until such time as such automation is
actually completed and (c) in no event shall any automation increases
be permitted after March 31, 2000.
(ii) Consolidation Savings. With respect to any Stations
subject to consolidation of operations as described in Part 2 of
Schedule 7.6D annexed hereto during the period beginning the first
Fiscal Quarter following such consolidation and ending on March 31,
2000 for the Redding Stations and Palmdale Stations and on September
30, 1999 for all other Stations, Company shall be permitted to increase
Consolidated Operating Cash Flow by the aggregate amount of annual cost
savings that the Company in good faith reasonably expects to realize by
such consolidation savings in the amounts and for and as of the periods
and dates of determination as set forth in Part 2 of Schedule 7.6D;
provided that no consolidation increases shall be permitted with
respect to any Station which is subject to a pending or completed Asset
Sale (other than $20,094 of consolidation savings for the third Fiscal
Quarter of 1998 for the Kingman Stations to be added back to
Consolidated Operating Cash Flow on March 31, 1999).
(iii) Sale of Assets. For purposes of calculating the
Consolidated Total Debt Ratio only for any relevant period through June
30, 1999 (or through September 30, 1999 with respect to the Lake Tahoe
Stations only), with respect to Stations which are subject to pending
Asset Sales in accordance with subsection 6.13, Company and its
Subsidiaries may calculate Consolidated Total Debt and Consolidated
Operating Cash Flow on a pro forma basis as if such sales had been
consummated and the Net Cash Proceeds which Company in good faith
reasonably expects to result from the consummation of such Asset Sales
(as
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certified by Company to Lenders pursuant to an Officers' Certificate no
later than March 31, 1999 (or June 30, 1999 with respect to the Lake
Tahoe Stations only)) had been applied to repay Loans as required
hereunder, in each case as of the first date of such period.
(iv) Negative Cash Flow. For purposes of calculating the
Consolidated Total Debt Ratio only, (A) for any relevant period through
September 30, 1998, to the extent that the operating cash flow on a
trailing 12 month basis relating to the Flagstaff Stations (on a
combined basis in accordance with GAAP) included in the calculation of
Consolidated Operating Cash Flow for any such period is negative, such
negative combined operating cash flow for such period shall be deemed
to be zero for purposes of calculating Consolidated Operating Cash Flow
hereunder (provided, however, that no more than $300,000 in the
aggregate of negative combined operating cash flow for all such
Stations may be excluded in any such period) and (B) for any relevant
period during the first consecutive twelve months following the
pre-Closing Date programming format change for Station KIXA(FM),
licensed to Lucerne Valley, California, implemented on March 15, 1998,
and Station KNRO(AM), licensed to Redding, California, implemented on
December 1, 1997, to the extent the operating cash flow on a trailing
12-month basis for any such Station (on a stand-alone basis) included
in Consolidated Operating Cash Flow for any such period is negative,
such negative combined operating cash flow for such period shall be
deemed to be zero for purposes of calculating Consolidated Operating
Cash Flow hereunder (provided, however that the aggregate amount of
negative operating cash flow that may be so excluded pursuant to the
immediately preceding proviso shall not exceed $140,000 for KIXA(FM)
and $92,000 for KNRO(AM)); provided that the foregoing adjustments
shall not apply to any Station which is subject to a pending or
completed Asset Sale.
(v) Other Adjustments. For purposes of calculating the
Consolidated Total Debt Ratio only for any relevant period, Company may
exclude from the calculation of Consolidated Operating Cash Flow (i)
the annualized effect of the salary of Terry S. Jacobs and William
Stakelin which is to be deferred and not paid in accordance with
subsection 7.16 and (ii) through December 31, 1999, the salary of
terminated employees and severance costs set forth in Part 3 of
Schedule 7.6D annexed hereto in the amounts and for and as the periods
and dates of determination as set forth in such Schedule; provided that
no such adjustments shall be permitted with respect to any Station
which is subject to a pending or completed Asset Sale.
F. RESTRICTION ON FUNDAMENTAL CHANGES; ASSET SALES AND ACQUISITIONS.
(i) Subsection 7.7(ii) of the Credit Agreement is hereby amended by
adding the following proviso to the end thereof:
" ; provided still further that anything in this
Agreement to the contrary not withstanding, in no event shall
Company or its Subsidiaries
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consummate any Permitted Acquisition or enter into or continue
any LMA at any time that the Consolidated Total Debt Ratio is
greater than 5.50:1.00 without the prior written consent of
Requisite Lenders."
(ii) Subsection 7.7 of the Credit Agreement is hereby further amended
by adding a new subsection 7.7(vi) thereto as follows:
" (vi) Any Subsidiary of Company (including, without
limitation, Regent of Dayton, Inc.) may be merged with or into
Company or any wholly-owned Subsidiary of Company, or be
liquidated, wound up or dissolved, or all or any substantial
part of its business, property or assets may be conveyed,
sold, leased, transferred or otherwise disposed of, in one
transaction or a series of transactions, to Company or any
wholly-owned Subsidiary of Company; provided that, in the case
of such a merger, Company or such wholly-owned Subsidiary
shall be the continuing or surviving corporation; and"
(iii) Subsection 7.7 of the Credit Agreement is hereby further amended
by adding a new subsection 7.7(vii) thereto as follows:
" (vii) Company and its Subsidiaries may consummate
the St. Cloud Acquisition; provided that (a) the aggregate
consideration therefor (net of transactions costs and
expenses) shall not exceed $12,750,000, (b) each of the
conditions set forth in subsection 4.3 have been satisfied,
(c) anything in this Agreement to the contrary
notwithstanding, the Consolidated Total Debt Ratio shall be
less than or equal to 6.75:1.00 calculated on a pro forma
basis to give effect to such Permitted Acquisition and the
Asset Sales required by subsection 6.13 and (d) Company and
its Subsidiaries shall have entered into definitive agreements
and made the appropriate filings with the FCC to sell Stations
as required by subsection 6.13."
G. CAPITAL EXPENDITURES. Subsection 7.8 of the Credit Agreement is hereby
amended and restated in its entirety as follows:
"7.8 CAPITAL EXPENDITURES.
The Credit Parties shall not, and shall not
permit any of their respective Subsidiaries to, make or incur
Consolidated Capital Expenditures in excess of (i) $1,750,000
in the aggregate for any twelve consecutive month period
ending as of the last day of any Fiscal Quarter during Fiscal
Year 1999 and (ii) $1,600,000 in the aggregate during any
Fiscal Year thereafter."
H. OVERHEAD. Subsection 7.16 of the Credit Agreement is hereby amended and
restated in its entirety as follows:
"7.16 OVERHEAD.
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Company shall not permit the aggregate amount of
Overhead during any twelve consecutive month period ending
during the periods or as of any date of determination set
forth below to exceed the correlative amount indicated:
AGGREGATE
PERIOD ENDING OVERHEAD
------------- --------
March 31, 1999 $1,700,000
April 1, 1999 - September 30, 1999 $1,900,000
October 1, 1999 - December 31, 1999 $2,000,000
January 1, 2000 - December 31, 2000 $2,100,000
January 1, 2001 - December 31, 2001 $2,205,000
January 1, 2002 - December 31, 2002 $2,315,250
January 1, 2003 - December 31, 2003 $2,431,000
January 1, 2004 - December 31, 2004 $2,552,550
; provided that without limiting the foregoing, at
least $200,000 of the 1999 annual salary of Terry S. Jacobs and at
least $50,000 of the 1999 annual salary of William Stakelin shall be
deferred by Company and its Subsidiaries and shall only be payable
after such time as the Consolidated Total Debt Ratio is less than or
equal to 6.50:1.00 and Company delivers to Agent a Compliance
Certificate, demonstrating that the Company shall be in pro forma
compliance with the financial covenants set forth in subsection 7.6
after such payments are made and that no Event of Default or Potential
Event of Default has occurred and is continuing or would result from
such payments; provided further that for purposes of this Agreement,
such deferred amounts (i) shall not be considered Indebtedness, (ii)
shall apply against the aggregate Overhead limits set forth above for
the period when deferred and shall not apply to such limits for the
period when paid and (iii) shall be included in the calculation of
Consolidated Operating Cash Flow for any applicable period when paid."
I. EVENTS OF DEFAULT. Subsection 8.3 of the Credit Agreement is hereby
amended by adding a reference to subsection "6.13" immediately after the
reference to subsection "6.2" contained therein.
J. SCHEDULES. A new Schedule 7.6D is hereby added to the Credit
Agreement in the form of Schedule A annexed hereto.
SECTION 2. LIMITATION OF AMENDMENTS AND CONSENT
Without limiting the generality of the provisions of
subsection 10.6 of the Credit Agreement, the amendments and consent set forth
above shall be limited precisely as written and
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relate solely to the matters expressly set forth in Sections 1 and 2 hereof, in
the manner and to the extent described above, and nothing in this Amendment
shall be deemed to:
(a) constitute a waiver of compliance by Company with respect
to the Credit Agreement in any other instance or any other
term, provision or condition of the Credit Agreement or any
other instrument or agreement referred to therein; or
(b) prejudice any right or remedy that Agent or any Lender may
now have (except to the extent such right or remedy was based
upon existing defaults that will not exist after giving effect
to this Amendment) or may have in the future under or in
connection with the Credit Agreement or any other instrument
or agreement referred to therein.
Except as expressly set forth herein, the terms, provisions
and conditions of the Credit Agreement and the other Loan Documents shall remain
in full force and effect and in all other respects are hereby ratified and
confirmed.
SECTION 3. CONDITIONS TO EFFECTIVENESS
This Amendment shall become effective only upon the
satisfaction of all of the following conditions precedent (the date of
satisfaction of such conditions being referred to herein as the "SIXTH AMENDMENT
EFFECTIVE DATE"):
A. EXECUTION OF AMENDMENT. The execution of a counterpart hereof by
Company, each Credit Support Party and Requisite Lenders and receipt Agent of
written or telephonic notification of such execution and authorization of
delivery thereof.
B. AMENDMENT FEE. Agent shall have received for distribution to each
Lender in accordance with its Pro Rata Share, a non-refundable amendment fee
equal to $220,000.
C. ISSUANCE OF EQUITY. Company shall have issued at least $5,000,000 of
additional equity after January 1, 1999 on substantially the same terms and
conditions as the equity issued by Company on the Closing Date, at least
$915,000 of which shall have been applied to repay the Loans and reduce the
Commitments in accordance with the Credit Agreement and the remaining proceeds
of which shall be applied as set forth in Schedule B annexed hereto.
D. LEGAL FEES. O'Melveny & Myers LLP, counsel for Agent, shall have
received payment of all fees previously billed to Company.
SECTION 4. REPRESENTATIONS AND WARRANTIES
In order to induce Lenders to enter into this Amendment and to
amend the Credit Agreement in the manner provided herein, each Credit Party
represents and warrants to each Lender that the following statements are true,
correct and complete:
A. CORPORATE POWER AND AUTHORITY. Each Credit Party has all
requisite corporate power and authority to enter into this Amendment and to
carry out the transactions
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contemplated by, and perform its obligations under, the Credit Agreement as
amended by this Amendment (the "AMENDED AGREEMENT").
B. AUTHORIZATION OF AGREEMENTS. The execution and delivery of
this Amendment and the performance of the Amended Agreement have been duly
authorized by all necessary corporate action on the part of each Credit Party.
C. NO CONFLICT. The execution and delivery by each Credit
Party of this Amendment and the performance by each Credit Party of the Amended
Agreement (to the extent it is a party thereto) do not and will not (i) violate
any provision of any law or any governmental rule or regulation applicable to
Company or any of its Subsidiaries, the Certificate or Articles of Incorporation
or Bylaws or of Company or any of its Subsidiaries or any order, judgment or
decree of any court or other agency of government binding on Company or any of
its Subsidiaries, (ii) conflict with, result in a breach of or constitute (with
due notice or lapse of time or both) a default under any Contractual Obligation
of Company or any of its Subsidiaries, (iii) result in or require the creation
or imposition of any Lien upon any of the properties or assets of Company or any
of its Subsidiaries (other than Liens created under any of the Loan Documents in
favor of Agent on behalf of Lenders or otherwise permitted pursuant to the Loan
Documents), or (iv) require any approval of stockholders or any approval or
consent of any Person under any Contractual Obligation of Company or any of its
Subsidiaries which has not been obtained.
D. GOVERNMENTAL CONSENTS. The execution and delivery by each
Credit Party of this Amendment and the performance by each Credit Party of the
Amended Agreement (to the extent it is a party thereto) do not and will not
require any registration with, consent or approval of, or notice to, or other
action to, with or by, any federal, state or other governmental authority or
regulatory body.
E. BINDING OBLIGATION. This Amendment and the Amended
Agreement have been duly executed and delivered by each Credit Party to the
extent it is a party thereto and are the legally valid and binding obligations
of each such Credit Party, enforceable against each such Credit Party in
accordance with their respective terms, except as may be limited by bankruptcy,
insolvency, reorganization, moratorium or similar laws relating to or limiting
creditors' rights generally or by equitable principles relating to
enforceability.
F. EQUITY ISSUANCE. As of the Sixth Amendment Effective Date,
Company has issued the additional equity described in Section 3C of this
Amendment and has applied at least $915,000 of the proceeds thereof to repay the
Loans and reduce the Commitments as required by the Credit Agreement and has
applied the remaining proceeds thereof as described in Schedule B annexed
hereto.
G. INCORPORATION OF REPRESENTATIONS AND WARRANTIES FROM CREDIT
AGREEMENT. The representations and warranties contained in Section 5 of the
Credit Agreement are and will be true, correct and complete in all material
respects on and as of the Amendment Effective Date to the same extent as though
made on and as of that date, except to the extent such representations and
warranties specifically relate to an earlier date, in which case they were true,
correct and complete in all material respects on and as of such earlier date.
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H. ABSENCE OF DEFAULT. No event has occurred and is continuing
or will result from the consummation of the transactions contemplated by this
Amendment that would constitute an Event of Default or a Potential Event of
Default.
SECTION 5. ACKNOWLEDGEMENT AND CONSENT
Each of the Company and the Subsidiaries (each individually a
"CREDIT SUPPORT PARTY" and collectively, the "CREDIT SUPPORT PARTIES") hereby
acknowledges that it has reviewed the terms and provisions of the Credit
Agreement and this Amendment and consents to the amendments of the Credit
Agreement effected pursuant to this Amendment. The Pledge and Security
Agreement, the Collateral Account Agreement and the Subsidiary Guaranty are
collectively referred to herein as the "CREDIT SUPPORT DOCUMENTS". Each Credit
Support Party hereby confirms that each Credit Support Document to which it is a
party or otherwise bound and all Collateral encumbered thereby will continue to
guaranty or secure, as the case may be, to the fullest extent possible the
payment and performance of all "Guaranteed Obligations" and "Secured
Obligations", as the case may be (in each case as such terms are defined in the
applicable Credit Support Document), including without limitation the payment
and performance of all such "Guaranteed Obligations" and "Secured Obligations",
as the case may be, in respect of the Obligations of Company now or hereafter
existing under or in respect of the Credit Agreement and the Notes.
SECTION 6. RELEASE
Each Credit Party, hereby knowingly, voluntarily,
intentionally and irrevocably releases and discharges Agent, each Lender and
each of their respective officers, directors, agents and counsel (each a
"RELEASEE") from any and all actions, causes of action, suits , sums of money,
controversies, variances, trespasses, damages, judgements, extents, executions,
losses, liabilities, costs, expenses, debts, dues, demands, obligations or other
claims of any kind whatsoever, known or unknown, in law, admiralty or equity,
which such Credit Party ever had, now have or hereafter can, shall or may have
against any Releasee for, upon or by reason of any matter, cause or thing
whatsoever from the beginning of the world to and including the date hereof.
SECTION 7. MISCELLANEOUS
A. REFERENCE TO AND EFFECT ON THE CREDIT AGREEMENT AND THE OTHER LOAN
DOCUMENTS.
(i) On and after the effectiveness of this Amendment, each
reference in the Credit Agreement to "this Agreement",
"hereunder", "hereof" "herein" or words of like import
referring to the Credit Agreement, and each reference in the
other Loan Documents to the "Credit Agreement", "thereunder",
"thereof" or words of like import referring to the Credit
Agreement shall mean and be a reference to the Amended
Agreement.
(ii) Except as specifically amended by this Amendment, the
Credit Agreement and the other Loan Documents shall remain in
full force and effect and are hereby ratified and confirmed.
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(iii) The execution, delivery and performance of this
Amendment shall not, except as expressly provided herein,
constitute a waiver of any provision of, or operate as a
waiver of any right, power or remedy of Agent or any Lender
under, the Credit Agreement or any of the other Loan
Documents.
(iv) All grammatical and technical corrections required in the
Credit Agreement and the other Loan Documents in order to
effect the substance of the amendments set forth herein shall
be deemed made upon the effectiveness of this Amendment.
B. FEES AND EXPENSES. Company acknowledges that all costs,
fees and expenses as described in subsection 10.2 of the Credit Agreement
incurred by Agent and its counsel with respect to this Amendment and the
documents and transactions contemplated hereby shall be for the account of
Company.
C. HEADINGS. Section and subsection headings in this Amendment
are included herein for convenience of reference only and shall not constitute a
part of this Amendment for any other purpose or be given any substantive effect.
D. APPLICABLE LAW. THIS AMENDMENT AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE GOVERNED BY, AND SHALL BE
CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW
YORK (INCLUDING WITHOUT LIMITATION SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW
OF THE STATE OF NEW YORK), WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES.
E. COUNTERPARTS. This Amendment may be executed in any number
of counterparts and by different parties hereto in separate counterparts, each
of which when so executed and delivered shall be deemed an original, but all
such counterparts together shall constitute but one and the same instrument;
signature pages may be detached from multiple separate counterparts and attached
to a single counterpart so that all signature pages are physically attached to
the same document.
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IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be duly executed and delivered by their respective officers
thereunto duly authorized as of the date first written above.
REGENT COMMUNICATIONS, INC.
By: /s/ Terry S. Jacobs
-------------------------
Name: Terry S. Jacobs
Title: Chairman and CEO
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CREDIT SUPPORT PARTIES
REGENT BROADCASTING OF LEXINGTON, INC.,
REGENT BROADCASTING OF SAN DIEGO,INC.,
REGENT BROADCASTING OF DAYTON, INC.,
REGENT BROADCASTING OF CHICO, INC.,
REGENT BROADCASTING OF FLAGSTAFF, INC.,
REGENT BROADCASTING OF KINGMAN, INC.,
REGENT BROADCASTING OF LAKE TAHOE, INC.,
REGENT BROADCASTING OF PALMDALE, INC.,
REGENT BROADCASTING OF REDDING, INC.,
REGENT BROADCASTING OF VICTORVILLE, INC.,
REGENT BROADCASTING OF SOUTH CAROLINA, INC.,
REGENT BROADCASTING MIDWEST, INC.,
REGENT BROADCASTING OF FLINT, INC.,
REGENT BROADCASTING OF MANSFIELD, INC.,
each a Delaware corporation
By: /s/ Terry S. Jacobs
----------------------------------
Name: Terry S. Jacobs
Title: Chairman and CEO
of each of the forgoing
REGENT BROADCASTING WEST COAST, INC.,
PARK LANE HIGH DESERT, INC.,
PARK LANE REGENCY RADIO, INC.,
each a California corporation
By: /s/ Terry S. Jacobs
----------------------------------
Name: Terry S. Jacobs
Title: Chairman and CEO
of each of the forgoing
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REGENT LICENSEE OF SAN DIEGO, INC.,
REGENT LICENSEE OF DAYTON, INC.,
REGENT LICENSEE OF KINGMAN, INC.,
REGENT LICENSEE OF VICTORVILLE, INC.,
REGENT LICENSEE OF LEXINGTON, INC.,
REGENT LICENSEE OF LAKE TAHOE, INC.,
REGENT LICENSEE OF PALMDALE, INC.,
REGENT LICENSEE OF REDDING, INC.,
REGENT LICENSEE OF CHICO, INC.,
REGENT LICENSEE OF FLAGSTAFF, INC.,
REGENT LICENSEE OF FLINT, INC.,
REGENT LICENSEE OF MANSFIELD, INC.,
REGENT LICENSEE OF SOUTH CAROLINA, INC.,
each a Delaware corporation
By: /s/ Terry S. Jacobs
----------------------------------
Name: Terry S. Jacobs
Title: Chairman and CEO
of each of the foregoing
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BANK OF MONTREAL, CHICAGO BRANCH,
individually and as Agent
By: /s/ Juliet Barnes
-------------------------
Name: Juliet Barnes
Title: Director
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GENERAL ELECTRIC CAPITAL CORPORATION,
individually and as Documentation Agent
By: /s/ Kenneth M. Gacevich
----------------------------------
Name: Kenneth M. Gacevich
Title: Duly Authorized Signatory
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BANK ONE, INDIANA, NA,
By: /s/ John W. Eyler
-----------------------------
Name: John W. Eyler
Title: Senior Vice President
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