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Exhibit 4(dd)
REGENT COMMUNICATIONS, INC.
EIGHTH AMENDMENT, LIMITED CONSENT AND LIMITED WAIVER TO CREDIT AGREEMENT
This EIGHTH AMENDMENT, LIMITED CONSENT AND LIMITED WAIVER TO CREDIT
AGREEMENT (this "AMENDMENT") is dated as of November 11, 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, that certain Fifth
Amendment to Credit Agreement dated as of November 23, 1998, that certain Sixth
Amendment and Limited Consent to Credit Agreement dated as of February 24, 1999
and that certain Seventh Amendment to Credit Agreement dated as of June 30, 1999
(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;
WHEREAS, Company and Lenders desire to waive compliance with the
provisions of subsections 7.8 and 7.16 of the Credit Agreement in the manner and
to the limited extent described herein;
WHEREAS, Company has requested that Lenders consent to (i) outstanding
Letters of Credit not being treated as Indebtedness for purposes of calculating
Consolidated Total Debt in the manner and to the limited extent described herein
and (ii) the issuance of additional equity in Company on terms and conditions
satisfactory to Agent (the "ADDITIONAL EQUITY") during the period from the date
hereof through December 30, 1999 (the "ISSUE PERIOD") and the application of the
net proceeds of such Additional Equity as set forth herein.
NOW, THEREFORE, in consideration of the premises and the agreements,
provisions and covenants herein contained, the parties hereto agree as follows:
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SECTION 1. AMENDMENTS TO THE CREDIT AGREEMENT
1.1 AMENDMENT TO SECTION 2: AMOUNTS AND TERMS OF COMMITMENTS AND LOANS
Subsection 2.1A of the Credit Agreement is hereby amended by deleting
subdivision (ii) of the last paragraph thereof in its entirety and substituting
therefor the following:
"(ii) during the period from the date of the Eighth Amendment to this
Agreement to December 31, 1999, no additional Revolving Loans shall be
made hereunder"
1.2 AMENDMENT TO SECTION 6: AFFIRMATIVE COVENANTS
Section 6 of the Credit Agreement is hereby amended by deleting
subsection 6.13 in its entirety and substituting therefor the following:
"6.13 SALE OF CERTAIN STATIONS.
[RESERVED]"
1.3 AMENDMENTS TO SECTION 7: NEGATIVE COVENANTS
A. Subsection 7.6D of the Credit Agreement is hereby amended by
deleting subdivision (iii) in its entirety and substituting therefor the
following:
" (iii) Sale of Assets. For purposes of calculating the Consolidated
Total Debt Ratio only for any relevant period through (i) September 30,
1999, in the case of the Assets Sales of the Kingman Stations and the
Lake Tahoe Stations or (ii) the date (the "END DATE") which is the
earlier of (x) December 30, 1999 or (y) the date of termination or
abandonment of the Asset Sale pending for the Flagstaff Stations under
the sale agreement in effect as of the date of the Eighth Amendment to
this Agreement, in the case of the Asset Sale of the Flagstaff
Stations: Company and its Subsidiaries may calculate Consolidated Total
Debt and Consolidated Operating Cash Flow on a pro forma basis as if
such Asset 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 certified by Company to Lenders
pursuant to an Officers' Certificate no later than June 30, 1999, or
July 15, 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."
B. Subsection 7.6D(iv) of the Credit Agreement is hereby amended by
deleting the reference to "September 30, 1998" contained therein and
substituting therefor "the End Date".
C. Subsection 7.7 of the Credit Agreement is hereby amended by deleting
subdivision (vii) thereof in its entirety.
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1.4 AMENDMENT TO SECTION 8: EVENTS OF DEFAULT
A. Subsection 8.3 of the Credit Agreement is hereby amended by deleting
the reference to ", 6.13" contained therein.
B. Section 8 of the Credit Agreement is hereby further amended by (i)
deleting the "or" at the end of subsection 8.16, (ii) adding "or" at the end of
subsection 8.17 and (iii) adding a new subsection 8.18 as follows:
"8.18 ADDITIONAL EQUITY.
Company shall fail (i) to obtain by no later than November 30,
1999, a written commitment in form and substance satisfactory to Agent
for the issuance no later than December 30, 1999 of additional equity
in the Company for net proceeds of not less than $10,000,000 on terms
and conditions satisfactory to Agent; or (ii) to issue such equity and
apply not less than $10,000,000 of the net proceeds thereof to repay
the Loans and reduce the Commitments in accordance with subsection
2.4B(iii)(c) no later than December 30, 1999."
SECTION 2. LIMITED CONSENTS
2.1 LETTERS OF CREDIT
Lenders hereby consent to the Company not treating currently
outstanding Letters of Credit under the Credit Agreement as Indebtedness for
purposes of calculating Consolidated Total Debt ; provided, however, that (i)
any Letters of Credit issued after the date hereof and (ii) commencing December
31, 1999, all outstanding Letters of Credit shall be deemed to be Indebtedness
for purposes of calculating Consolidated Total Debt for all purposes under the
Credit Agreement.
2.2 ADDITIONAL EQUITY
Lenders hereby consent to the issuance of Additional Equity during the
Issue Period; provided that the net proceeds of such issuance are applied to
prepay the Loans and reduce the Commitments in accordance with subsection
2.4B(iii)(c) and in the amount of the following percentages of such net
proceeds: (i) 100% of any such net proceeds up to and including the first
$10,000,000 thereof, (ii) 75% of any such net proceeds in excess of $10,000,000
but less than or equal to $15,000,000 in the aggregate, and (iii) 50% of any
such net proceeds in excess of $15,000,000 in the aggregate.
SECTION 3. LIMITED WAIVERS
3.1 WAIVER OF SUBSECTION 7.8: CAPITAL EXPENDITURES
Lenders hereby waive compliance with the provisions of subsection 7.8
of the Credit Agreement prohibiting the Credit Parties or any of their
respective Subsidiaries from making or incurring Consolidated Capital
Expenditures in excess of $1,750,000 in the aggregate for any twelve consecutive
month period ending as of the last day of any Fiscal Quarter during
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Fiscal Year 1999 with respect to the Fiscal Quarter ending as of September 30,
1999; provided that the aggregate amount of such Consolidated Capital
Expenditures shall not exceed $1,786,000.
3.2 WAIVER OF SUBSECTION 7.16: OVERHEAD
Lenders hereby waive compliance with the provisions of subsection 7.16
of the Credit Agreement prohibiting the aggregate amount of Overhead of Company
during the period April 1, 1999 through September 30, 1999 to exceed $1,900,000;
provided that the aggregate amount of such Overhead shall not exceed $1,945,000.
SECTION 4. LIMITATION OF AMENDMENTS, CONSENTS AND WAIVERS
Without limiting the generality of the provisions of subsection 10.6 of
the Credit Agreement, the amendments, consents and waivers set forth above shall
be limited precisely as written and relate solely to the matters expressly set
forth in Sections 1, 2 and 3 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 5. 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. 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.
B. 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.
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SECTION 6. 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 "Guarantied 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 "Guarantied 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 7. 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 8. 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.
(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.
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(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.
(i) 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.
(ii) In addition, Company agrees to pay to Agent for
distribution to each Lender that executes this Amendment a
non-refundable amendment fee equal to .075% of its Pro Rata Share (the
"AMENDMENT FEE") (i) on November 30, 1999, if on or before November 30,
1999, Company has not received a written commitment in form and
substance satisfactory to Agent for the issuance of the Additional
Equity on terms and conditions satisfactory to Agent or (ii) on
December 30, 1999, if on or before December 30, 1999, the net proceeds
of such Additional Equity shall not have been applied to repay the
Loans and permanently reduce the Commitments as provided herein;
provided, that the obligation to pay such Amendment Fee shall be
terminated on December 30, 1999 if the net proceeds of such Additional
Equity shall have been applied to repay the Loans and permanently
reduce the Commitments as provided herein.
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; EFFECTIVENESS. 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. This Amendment shall become effective upon the execution of a
counterpart hereof by Company, each Credit Support Party and Requisite Lenders
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and receipt by Agent of written or telephonic notification of such execution and
authorization of delivery thereof (the "AMENDMENT EFFECTIVE DATE").
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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/ Anthony A. Vasconcellos
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Name: Anthony A. Vasconcellos
Title: Vice President and Chief Financial Officer
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CREDIT SUPPORT PARTIES
REGENT BROADCASTING OF LEXINGTON, INC.,
REGENT BROADCASTING OF SAN DIEGO, 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., REGENT
BROADCASTING OF ST. CLOUD, INC., REGENT
BROADCASTING OF ERIE, INC., REGENT
BROADCASTING OF UTICA/ROME, INC.,
REGENT BROADCASTING OF WATERTOWN, INC.,
REGENT BROADCASTING OF EL PASO, INC.,
each a Delaware corporation
By: /s/ Anthony A. Vasconcellos
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Name: Anthony A. Vasconcellos
Title: Vice President and Chief Financial
Officer of each of the forgoing
REGENT BROADCASTING WEST COAST, INC.,
a California corporation
By: /s/ Anthony A. Vasconcellos
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Name: Anthony A. Vasconcellos
Title: Vice President and
Chief Financial Officer
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REGENT LICENSEE OF SAN DIEGO, 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.,
REGENT LICENSEE OF ST. CLOUD, INC.,
REGENT LICENSEE OF ERIE, INC.,
REGENT LICENSEE OF UTICA/ROME, INC.,
REGENT LICENSEE OF WATERTOWN, INC.,
REGENT LICENSEE OF EL PASO, INC.,
each a Delaware corporation
By: /s/ Anthony A. Vasconcellos
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Name: Anthony A. Vasconcellos
Title: Vice President and Chief Financial
Officer of each of the forgoing
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BANK OF MONTREAL, CHICAGO BRANCH,
individually and as Agent
By: /s/ Christopher Young
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Name: Christopher Young
Title: Director
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GENERAL ELECTRIC CAPITAL CORPORATION,
individually and as Documentation Agent
By: /s/ Kenneth M. Gacevich
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Name: Kenneth M. Gacevich
Title: Vice President
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BANK ONE, INDIANA, NATIONAL ASSOCIATION
By: (signature not required)
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Name:
Title:
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