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THIRD AMENDMENT, CONSENT AND WAIVER
THIRD AMENDMENT, CONSENT AND WAIVER, dated as of September 27,
2000 (this "Amendment"), to the Amended and Restated Credit Agreement, dated as
of August 31, 1999 (as amended, supplemented or otherwise modified, the "Credit
Agreement"), among CUMULUS MEDIA INC., an Illinois corporation (the "Borrower"),
the several banks and other financial institutions or entities parties thereto
(the "Lenders"), ▇▇▇▇▇▇ BROTHERS INC., as advisor, lead arranger and book
manager, BARCLAYS CAPITAL, as syndication agent, and ▇▇▇▇▇▇ COMMERCIAL PAPER
INC., as administrative agent (in such capacity, the "Administrative Agent").
W I T N E S S E T H:
WHEREAS, pursuant to the Credit Agreement, the Lenders have
agreed to make, and have made, extensions of credit to the Borrower;
WHEREAS, Cumulus Broadcasting, Inc. ("Cumulus Broadcasting"),
Cumulus Licensing Corp. and Cumulus Wireless Services Inc., each a Nevada
corporation and a wholly owned subsidiary of the Borrower (collectively, the
"Cumulus Subsidiaries"), (a) have entered into an Asset Purchase Agreement,
dated as of September 6, 2000 (as the same may have been amended, supplemented
or otherwise modified from time to time prior to the date hereof, the "Sale
Agreement"), with Clear Channel Broadcasting, Inc. and Clear Channel
Broadcasting Licenses, Inc., each a Nevada corporation (collectively, "Clear
Channel"), pursuant to which the Cumulus Subsidiaries have agreed to sell to
Clear Channel the radio broadcast assets described therein (the "Disposition"),
and (b) will enter into an Asset Exchange Agreement on or before October 2,
2000, in substantially the form previously submitted to the Administrative Agent
(the "Exchange Agreement"), with the company or companies designated as "Clear
Channel" on the signature page thereto (collectively, "Capstar") pursuant to
which the Cumulus Subsidiaries will agree (i) to exchange certain radio
broadcast assets owned by the Cumulus Subsidiaries described therein for a
combination of cash and certain radio broadcast assets owned by Capstar
described therein (the "Exchange"), and (ii) in the event that the Federal
Communications Commission (the "FCC") has not granted its consent to the
consummation of the Exchange prior to October 2, 2000, to sell to Capstar
certain radio broadcast assets owned by the Cumulus Subsidiaries described
therein (the "Pre-Exchange Disposition") on October 2, 2000, pending receipt of
the consent of the FCC and consummation of the Exchange;
WHEREAS, Cumulus Broadcasting has entered into an Asset
Purchase Agreement, dated as of November 29, 1999 (as the same may have been
amended, supplemented or otherwise modified from time to time prior to the date
hereof, the "Purchase Agreement"), with Connoisseur Communications Partners,
L.P., Continuity Partners, L.P., Connoisseur Communications of Canton, L.P.,
Connoisseur Communications of Evansville, L.P., Connoisseur Communications of
Flint, L.P., Connoisseur Communications of ▇▇▇▇▇▇ County, L.P., Connoisseur
Communications of Muskegon, L.P. Connoisseur Communications of Quad Cities,
L.P., Connoisseur Communications of Rockford, L.P., Connoisseur Communications
of
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Saginaw, L.P., Connoisseur Communications of Waterloo, L.P., Connoisseur
Communications of Youngstown, L.P. and Abry Broadcast Partners III, L.P.
(collectively, "Connoisseur") pursuant to which Cumulus Broadcasting has agreed
to purchase from Connoisseur the radio broadcast assets described
therein (the "Purchase");
WHEREAS, the aggregate consideration to be paid by Cumulus
Broadcasting to Connoisseur in connection with the Purchase described in the
Purchase Agreement is $(-)253,942,318, and the radio broadcast assets to be
acquired pursuant to the Purchase Agreement are located in Illinois, Indiana,
Iowa, Kentucky, Michigan, Ohio and Pennsylvania;
WHEREAS, as a condition precedent to the effectiveness of the
Waiver, dated as of July 25, 2000, to the Credit Agreement, the Borrower
deposited into escrow with The Chase Manhattan Bank, as escrow agent (the
"Escrow Agent"), pursuant to the terms of an Escrow Agreement, dated as of
August 25, 2000 between the Escrow Agent and the Administrative Agent,
$91,647,000 of cash proceeds from certain asset sales to Clear Channel (the
"Escrow Deposit");
WHEREAS, the Borrower intends to finance the Purchase from the
following sources: (a) up to $90,000,000 of cash proceeds from the issuance of
its 12% Series B Cumulative Preferred Stock (the "Series B Preferred Stock") and
Warrants to purchase the Borrower's Class B Common Stock, (b) the Escrow
Deposit, (c) the proceeds of the Disposition and, to the extent consummated on
or before October 2, 2000, the Exchange or the Pre-Exchange Disposition, and (d)
cash on hand; and
WHEREAS, the Borrower has requested that (a) the Required
Lenders and, in the case of amendments to Section 2.11 of the Credit Agreement,
the Required Prepayment Lenders agree to amend certain provisions of the Credit
Agreement in the manner provided for in this Amendment, (b) the Required Lenders
waive the requirements of the definition of "Permitted Acquisition" in Section
1.1 of the Credit Agreement to the extent necessary to permit (i) the
acquisition from Connoisseur, as provided for in the Purchase Agreement, of
radio broadcast assets having a fair market value of approximately $253,942,000,
(ii) the acquisition from Cape Fear of radio broadcast assets located in North
Carolina having a fair market value of approximately $47,000,000, (iii) the
acquisition from McDonald Media of radio broadcast assets located in California
having a fair market value of approximately $33,600,000, (iv) the acquisition
from Capstar of radio broadcast assets in connection with the Exchange and (v)
the other acquisitions and exchanges listed on Schedule A attached hereto, (c)
the Required Lenders waive the requirements of Section 7.5(f)(ii) of the Credit
Agreement to the extent necessary to permit (i) the Disposition provided for in
the Sale Agreement, (ii) the Exchange provided for in the Exchange Agreement,
and (iii) the Pre-Exchange Disposition provided for in the Exchange Agreement,
(d) the Required Prepayment Lenders consent to the use of the Escrow Deposit to
fund a portion of the aggregate consideration for the Purchase, and (e) the
Required Prepayment Lenders waive the requirements of Section 2.11(b) of the
Credit Agreement to the extent necessary to permit the aggregate Reinvestment
Deferred Amount in respect of Asset Sales and Recovery Events less any amounts
expended prior to the most recent Reinvestment Prepayment Date to acquire assets
useful in the Borrower's business to be in an amount up to, during the period
from the date hereof through and including October 2, 2000, $166,406,000, and,
upon this Amendment becoming effective, the Required Lenders and the Required
Prepayment Lenders, as applicable, have agreed to such amendments, waivers and
consent in the manner provided for in this Amendment;
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NOW, THEREFORE, in consideration of the premises and the
agreements hereinafter set forth, the parties hereto hereby agree as follows:
SECTION 1. DEFINITIONS. Unless otherwise defined herein, terms
defined in the Credit Agreement and used herein shall have the meanings given to
them in the Credit Agreement.
SECTION 2. AMENDMENTS TO CREDIT AGREEMENT.
2.1 Amendments to Section 1.1 of the Credit Agreement.
Section 1.1 of the Credit Agreement is hereby amended as follows:
(a) by adding thereto the following proviso to the end of
the definition of "Consolidated EBITDA":
; provided, further, that, notwithstanding anything to the contrary
herein, for purposes of calculating the Consolidated Fixed Charge
Coverage Ratio, the Consolidated Interest Coverage Ratio, the
Consolidated Leverage Ratio and the Consolidated Senior Debt Ratio for
any period of four consecutive fiscal quarters ending prior to the
consummation of the transactions contemplated by the Clear Channel
Agreements, (i) the Consolidated EBITDA attributable to the assets to
be acquired by the Borrower or any of its Restricted Subsidiaries from
Clear Channel in a transaction expressly permitted by the Third
Amendment, Consent and Waiver, dated as of September 27, 2000 (the
"Third Amendment"), to this Agreement, including any assets to be
acquired by the Borrower or any of its Restricted Subsidiaries in
connection with the exchange transaction contemplated by the Asset
Exchange Agreement, shall be included in the calculation of the
Consolidated EBITDA of the Borrower and its Restricted Subsidiaries for
such period on a pro forma basis for such period (assuming the
consummation of such Permitted Acquisition and the incurrence or
assumption of any Indebtedness in connection therewith occurred on the
first day of such period), and (ii) the Consolidated EBITDA
attributable to the assets of the Borrower or any of its Restricted
Subsidiaries to be Disposed of to Clear Channel in a transaction
expressly permitted by the Third Amendment, including any assets to be
Disposed of by the Borrower or any of its Restricted Subsidiaries in
connection with the exchange transaction contemplated by the Asset
Exchange Agreement, shall be excluded from the calculation of the
Consolidated EBITDA of the Borrower and its Restricted Subsidiaries for
such period (assuming the consummation of such Disposition and the
repayment of any Indebtedness in connection therewith occurred on the
first day of such period)
(b) by deleting therefrom the definition of "Preferred
Stock" in its entirety and substituting in lieu thereof the following:
"Preferred Stock": the collective reference to (a) the
Exchangeable Preferred Stock, (b) the Series B Preferred Stock and (c)
any additional non-voting cumulative preferred stock issued by the
Borrower after the date hereof so long as any such preferred stock
referred to in this clause (c), by its terms, (i) may not be purchased,
redeemed, retired or otherwise acquired for value prior to the first
anniversary of the Final Maturity Date and (ii) provides for the
payment of dividends thereon solely in additional shares of non-voting
cumulative preferred stock.
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(c) by adding thereto the following definitions in
appropriate alphabetical order:
"Clear Channel": the collective reference to any of Clear
Channel Communications, Inc. or any of its Subsidiaries.
"Clear Channel Agreements": the collective reference to (a)
the Asset Purchase Agreement, dated as of September 6, 2000, and (b)
Asset Exchange Agreement, dated as of a date on or before October 2,
2000, in each case, among Cumulus Broadcasting, Inc., Cumulus Licensing
Corp., Cumulus Wireless and Clear Channel.
"Intercompany Payment": funds received by the Borrower from
its Restricted Subsidiaries in the form of (a) repayments of
intercompany loans previously made by the Borrower to such Restricted
Subsidiaries and (b) to the extent permitted by the Senior Subordinated
Note Indenture, dividends and distributions.
"Series B Preferred Stock": the Borrower's Series B
Cumulative Preferred Stock due 2009 originally issued on or prior to
October 2, 2000 to one or more of BancAmerica Capital Investors SBIC I,
L.P. or its affiliates, State of Wisconsin Investment Board, an entity
owned and controlled by members of the ▇▇▇▇▇ ▇▇▇▇▇▇ family, and other
purchasers satisfactory to the Administrative Agent, together with
dividends thereon in the form of additional shares of such Preferred
Stock, as the terms for such Preferred Stock may be amended,
supplemented or otherwise modified from time to time in accordance with
Section 7.9.
2.2 Amendments to Section 2.11 of the Credit Agreement.
(1) Section 2.11(a) of the Credit Agreement is hereby
amended by adding the following proviso to the end thereof.
; and provided, further, that, notwithstanding the foregoing, the
Borrower shall not be required to apply the Net Cash Proceeds from the
issuance of the Series B Preferred Stock toward the prepayment of the
Terms Loans and the reduction of the Revolving Credit Commitments
(b) Section 2.11(b) of the Credit Agreement is hereby
amended by adding the following proviso to the end thereof.
; and provided, further, that, notwithstanding the foregoing, (i) the
Net Cash Proceeds of Asset Sales by one or more Restricted Subsidiaries
to Clear Channel consummated on or after October 2, 2000 pursuant to
any of the Clear Channel Agreements shall be deemed Net Cash Proceeds
for purposes of this Section 2.11(b) only after deducting therefrom any
Intercompany Payment made with such proceeds so long as the Borrower
applies 100% of such Intercompany Payment to redeem (or places 100% of
such amount in escrow as permitted by Section 7.6(f) pending the
redemption of) the Series B Preferred Stock in a transaction expressly
permitted by Section 7.6(e), and (ii) on September 30, 2001, any
amounts held in escrow as permitted by Section 7.6(f) that have not
been applied to redeem the Series B Preferred Stock shall be applied
toward the prepayment of
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the Term Loans and the reduction of the Revolving Credit Commitments as
set forth in Section 2.11(d)
(c) Section 2.11(c) of the Credit Agreement is hereby
amended by deleting the date "December 31, 2000" in the second line thereof and
substituting in lieu thereof the date "December 31, 2001".
2.3 Amendment to Section 6.1 of the Credit Agreement.
Section 6.1 of the Credit Agreement is hereby amended by (a) deleting the word
"and" at the end of paragraph (a) thereof, (b) deleting the ";" at the end of
paragraph (b) thereof and substituting in lieu thereof "; and" and (c) inserting
the following paragraph after paragraph (b):
(c) as soon as available, but in any event not later than
45 days after the end of each calendar month, the unaudited
consolidated balance sheets of the Borrower and its consolidated
Subsidiaries as at the end of such month and the related unaudited
consolidated statements of income and of cash flows for such month and
the portion of the fiscal year through the end of such month, setting
forth in each case in comparative form the figures for the
corresponding month in, and year to date portion of, the previous year,
and the figures for such periods in the budget prepared by the Borrower
and furnished to the Administrative Agent pursuant to Section 6.2(c),
certified by a Responsible Officer as being fairly stated in all
material respects (subject to normal year- end audit adjustments);
provided that from and after the first date on which the Consolidated
Leverage Ratio is less than 5.50 to 1.00 and the Consolidated Senior
Debt Ratio is less than 2.50 to 1.00 (in each case, as at the end of
the most recent period of four consecutive fiscal quarters for which
financial statements have been delivered to the Lenders pursuant to
Section 6.1(a) or 6.1(b)), the Borrower and its Subsidiaries shall not
be required to comply with the requirements of this paragraph (c);
2.4 Amendments to Section 7.1 of the Credit Agreement.
(a) Section 7.1(a) of the Credit Agreement is hereby
amended by deleting in its entirety the table set forth in said section and
substituting in lieu thereof the following:
Consolidated
Test Period Leverage Ratio
----------- --------------
July 1, 2000 to September 30, 2000 7.50 to 1.00
October 1, 2000 to December 31, 2000 7.00 to 1.00
January 1, 2001 to June 30, 2001 6.75 to 1.00
July 1, 2001 to September 30, 2001 6.25 to 1.00
October 1, 2001 to March 31, 2002 6.00 to 1.00
April 1, 2002 to September 30, 2002 5.75 to 1.00
October 1, 2002 to December 31, 2002 5.50 to 1.00
January 1, 2003 and thereafter 5.25 to 1.00
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(b) Section 7.1(b) of the Credit Agreement is hereby
amended by deleting in its entirety the table set forth in said section and
substituting in lieu thereof the following:
Consolidated
Test Period Senior Debt Ratio
----------- -----------------
July 1, 2000 to September 30, 2001 3.50 to 1.00
October 1, 2001 to June 30, 2002 3.25 to 1.00
July 1, 2002 and thereafter 3.00 to 1.00
(c) Section 7.1(c) of the Credit Agreement is hereby
amended by deleting in its entirety the table set forth in said section and
substituting in lieu thereof the following:
Consolidated Interest
Test Period Coverage Ratio
----------- ---------------------
July 1, 2000 to September 30, 2000 1.20 to 1.00
October 1, 2000 to December 31, 2000 1.30 to 1.00
January 1, 2001 to September 30, 2001 1.40 to 1.00
October 1, 2001 to June 30, 2002 1.60 to 1.00
July 1, 2002 to December 31, 2002 1.70 to 1.00
January 1, 2003 to December 31, 2004 1.30 to 1.00
January 1, 2005 and thereafter 1.40 to 1.00
(d) Section 7.1(d) of the Credit Agreement is hereby
amended by deleting in its entirety the table set forth in said section and
substituting in lieu thereof the following:
Consolidated Fixed Charge
Test Period Coverage Ratio
----------- -------------------------
July 1, 2000 to September 30, 2000 1.00 to 1.00
October 1, 2000 to December 31, 2000 1.10 to 1.00
January 1, 2001 to September 30, 2001 1.15 to 1.00
October 1, 2001 and thereafter 1.20 to 1.00
2.5 Amendment to Section 7.6 of the Credit Agreement.
Section 7.6 of the Credit Agreement is hereby amended by (a) deleting the word
"and" at the end of clause (c) and inserting in lieu thereof "," and (b)
inserting the following language at the end of clause (d) thereof.
, (e) at any time after the delivery, pursuant to Section 6.1(a) of the
Credit Agreement, of the Borrower's audited financial statements for
the fiscal year ending December 31,
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2000, the Borrower may redeem the Series B Preferred Stock with the
proceeds of Intercompany Payments made to it by one or more of its
Restricted Subsidiaries with the Net Cash Proceeds from Asset Sales by
such Restricted Subsidiaries to Clear Channel consummated on or after
October 2, 2000 pursuant to the Clear Channel Agreements, including in
connection with the consummation of the exchange transaction
contemplated by the Clear Channel Agreement, so long as (i) no Default
or Event of Default shall have occurred and be continuing or would
result from such redemption and (ii) the Consolidated Leverage Ratio as
at the end of the most recently completed fiscal period for which
financial statements have been delivered to the Lenders pursuant to
Section 6.1(a) or 6.1(b) of the Credit Agreement is less than 7.00 to
1.00, (f) pending any redemption permitted by clause (e), the Borrower
may deposit such Intercompany Payments in escrow, on terms and
conditions satisfactory to the Administrative Agent and with an escrow
agent satisfactory to the Administrative Agent, and, upon satisfaction
of the requirements of clauses (e)(i) and (e)(ii) of this Section 7.6,
may apply such escrowed funds toward the redemption of the Series B
Preferred Stock, provided that in the event such escrowed funds are not
applied to redeem the Series B Preferred Stock in a redemption
expressly permitted by Section 7.6(e) by September 30, 2001, 100% of
such escrowed funds shall be applied in accordance with Section 2.11(b)
and (g) the Borrower may issue to the holders thereof additional
warrants to purchase up to 800,000 shares of the Borrower's Class B
Common Stock in the amounts and on the dates set forth in the Statement
of Resolutions Fixing Terms relating to the Series B Preferred Stock
2.6 Amendment to Section 7.9(c) of the Credit Agreement.
Section 7.9(c) of the Credit Agreement is hereby amended to read in its entirety
as set forth below.
(c) amend, modify, waive or otherwise change, or consent or agree to
any amendment, modification, waiver or other change to, any of the
terms of the Exchangeable Preferred Stock or the Series B Preferred
Stock (in each case, other than any such amendment, modification,
waiver or other change that (i) would extend the scheduled redemption
date or reduce the amount of any scheduled redemption payment or reduce
the rate or extend any date for payment of dividends thereon and (ii)
does not involve the payment of a consent fee),
2.7 Amendment to Section 10.2 of the Credit Agreement.
Section 10.2 of the Credit Agreement is hereby amended by deleting in its
entirety the address for notices to the Borrower and substituting in lieu
thereof the following address.
The Borrower: Cumulus Media Inc.
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
2.8 Amendment to Annex A to the Credit Agreement. Annex A
to the Credit Agreement is hereby amended to read in its entirety as set forth
in Annex A hereto.
Section 3. WAIVER. (a) The Required Lenders hereby waive the
requirements of the definition of "Permitted Acquisition" in Section 1.1 of the
Credit Agreement
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to the extent necessary to permit (i) the acquisition from Connoisseur, as
provided for in the Purchase Agreement, of radio broadcast assets having a fair
market value of approximately $253,942,000, (ii) the acquisition from Cape Fear
of radio broadcast assets located in North Carolina having a fair market value
of approximately $47,000,000, (iii) the acquisition from McDonald Media of radio
broadcast assets located in California having a fair market value of
approximately $33,600,000, (iv) the acquisition from Capstar of radio broadcast
assets in connection with the Exchange and (v) the other acquisitions and
exchanges listed on Schedule A attached hereto, (b) the Required Lenders hereby
waive the requirements of Section 7.5(f)(ii) of the Credit Agreement to the
extent necessary to permit the Disposition provided for in the Sale Agreement,
the Exchange provided for in the Exchange Agreement and the Pre-Exchange
Disposition provided for in the Exchange Agreement, (c) the Required Prepayment
Lenders hereby waive the requirements of Section 2.11(b) of the Credit Agreement
to the extent necessary to permit the aggregate Reinvestment Deferred Amount in
respect of Asset Sales and Recovery Events less any amounts expended prior to
the most recent Reinvestment Prepayment Date to acquire assets useful in the
Borrower's business to be in an amount up to, during the period from the date
hereof through and including October 2, 2000, $166,406,000, provided that
$91,647,000 of such Reinvestment Deferred Amount shall consist of the Escrow
Deposit and (d) the Required Prepayment Lenders hereby waive the requirement of
Section 2.11(b) that the Borrower deliver Reinvestment Notices in respect of the
Net Cash Proceeds of the Disposition, the Exchange and the Pre-Exchange
Disposition, in each case to the extent such proceeds are received on or prior
to October 2, 2000 and are applied to finance a portion of the aggregate
consideration for the Purchase.
SECTION 4. CONSENT TO RELEASE OF ESCROW DEPOSIT. The Required
Prepayment Lenders hereby consent to the use of the Escrow Deposit by the
Borrower to fund a portion of the aggregate consideration for the Purchase.
SECTION 5. CONDITIONS TO EFFECTIVENESS. This Amendment shall
become effective on the date (the "Amendment Effective Date") on which (a) the
Administrative Agent shall have received (i) an executed counterpart of this
Amendment from the Borrower, (ii) executed Lender Consent Letters (or facsimile
transmissions thereof) from the Required Lenders and the Required Prepayment
Lenders consenting to the execution of this Amendment by the Administrative
Agent, (iii) an executed Acknowledgment and Consent in the form annexed hereto
from each Subsidiary Guarantor and (iv) all fees required to be paid, and all
expenses for which invoices have been presented (including reasonable fees,
disbursements and other charges of counsel to the Administrative Agent), (b) the
Borrower shall have received cash proceeds from the issuance of its Series B
Preferred Stock in an amount at least equal to the lesser of (i) $86,000,000
less the aggregate amount of cash proceeds received by the Borrower and its
Restricted Subsidiaries on or prior to October 2, 2000 from the Disposition and
the Pre-Exchange Disposition and (ii) 70,000,000 and (c) the Borrower shall have
paid to the Administrative Agent, on behalf of each Lender which shall have
executed and delivered its Lender Consent Letter to counsel to the
Administrative Agent by 5:00 p.m. (New York City time) on Wednesday, September
27, 2000, an amendment fee in an amount equal to 0.50% of the sum of each such
Lender's Revolving Credit Commitments and Term Loans then outstanding.
SECTION 6. REPRESENTATIONS AND WARRANTIES. The representations
and warranties made by the Loan Parties in the Loan Documents are true and
correct on and as of the Amendment Effective Date, before and after giving
effect to the effectiveness of this Amendment, as if made on and as of the
Amendment Effective Date, except
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to the extent such representations and warranties expressly relate to a specific
earlier date, in which case such representations and warranties were true and
correct as of such earlier date.
SECTION 7. PAYMENT OF EXPENSES. The Borrower agrees to pay or
reimburse the Agents for all of their reasonable out-of-pocket costs and
expenses incurred in connection with this Amendment and any other documents
prepared in connection herewith and the transactions contemplated hereby,
including, without limitation, the reasonable fees and disbursements of counsel
to the Agents.
SECTION 8. REFERENCE TO AND EFFECT ON THE LOAN DOCUMENTS. On
and after the Amendment Effective Date, each reference in the Credit Agreement
to "this Agreement", "hereunder", "hereof" 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 Credit Agreement as
amended hereby. The execution, delivery and effectiveness of this Amendment
shall not, except as expressly provided herein, operate as a waiver of any
right, power or remedy of any Lender or any Agent under any of the Loan
Documents. Except as expressly amended or waived herein, all of the provisions
of the Credit Agreement and the other Loan Documents are and shall remain in
full force and effect in accordance with the terms thereof and are hereby in all
respects ratified and confirmed.
SECTION 9. ACKNOWLEDGMENT AND CONFIRMATIONS. The Borrower
hereby acknowledges and confirms that it does not have any grounds and hereby
agrees not to challenge (or to allege or to pursue any matter, cause or claim
arising under or with respect to) the Credit Agreement or any of the other Loan
Documents, any of the terms or conditions thereof or thereunder, or the status
of any thereof as legal, valid and binding obligations enforceable in accordance
with their respective terms; and it does not possess (and hereby forever waives,
remises, releases, discharges and holds harmless the Lenders and the Agents, and
their respective affiliates, stockholders, directors, officers, employees,
attorneys, agents and representatives and each of their respective heirs,
executors, administrators, successors and assigns (collectively, the
"Indemnified Parties") from and against, and agrees not to allege or pursue) any
action, cause of action, suit, debt, claim, counterclaim, cross-claim, demand,
defense, offset, opposition, demand and other right of action whatsoever,
whether in law, equity or otherwise (which it, all those claiming by, through or
under it, or its successors or assigns, have or may have) against the
Indemnified Parties, or any of them, prior to or as of the date of this
Amendment and the effective date of this Amendment for, upon, or by reason of,
any matter, cause or thing whatsoever, arising out of, or relating to the Credit
Agreement or any of the other Loan Documents (including, without limitation, any
payment, performance, validity or enforceability of any or all of the terms or
conditions thereof or thereunder) or any transaction relating to any of the
foregoing, or any or all actions, courses of conduct or other matters in any
manner whatsoever relating to or otherwise connected with any of the foregoing.
SECTION 10. COUNTERPARTS. This Amendment may be executed by
one or more of the parties to this Amendment on any number of separate
counterparts, and all of said counterparts taken together shall be deemed to
constitute one and the same instrument. Delivery of an executed signature page
of this Amendment by facsimile transmission shall be effective as delivery of a
manually executed counterpart hereof. A set of the copies of this Amendment
signed by all the parties shall be lodged with the Borrower and the
Administrative Agent.
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SECTION 11. GOVERNING LAW. This Amendment and the rights and
obligations of the parties hereto shall be governed by, and construed and
interpreted in accordance with, the law of the State of New York.
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IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be duly executed and delivered by their proper and duly authorized
officers as of the day and year first above written.
CUMULUS MEDIA INC.
By: /S/
------------------------------------
Name:
Title:
▇▇▇▇▇▇ COMMERCIAL PAPER INC., as
Administrative Agent
By: /S/
------------------------------------
Name:
Title:
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ACKNOWLEDGMENT AND CONSENT
Each of the undersigned corporations as guarantors under the
Amended and Restated Guarantee and Collateral Agreement, dated as of August 31,
1999, made by the undersigned corporations in favor of the Administrative Agent,
for the benefit of the Lenders, hereby (a) consents to the transactions
contemplated by this Amendment, (b) acknowledges and agrees that the guarantees
(and grants of collateral security therefor) contained in such Guarantee and
Collateral Agreement are, and shall remain, in full force and effect after
giving effect to this Amendment and all prior modifications to the Credit
Agreement and (c) makes each and all of the acknowledgments and confirmations
set forth in Section 9 of this Amendment with any reference therein to "the
Borrower" being deemed to be a reference to such undersigned and any reference
therein to "the Loan Documents" being deemed to be a reference to the Guarantee
and Collateral Agreement.
CUMULUS BROADCASTING, INC..
By: /S/
----------------------------------
Title:
CUMULUS LICENSING CORP.
By: /S/
----------------------------------
Title:
CARIBBEAN COMMUNICATIONS COMPANY
LIMITED
By: /S/
----------------------------------
Title:
GEM RADIO FIVE LTD.
By: /S/
----------------------------------
Title:
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CUMULUS WIRELESS SERVICES INC.
By: /S/
----------------------------------
Title:
BROADCAST SOFTWARE INTERNATIONAL
INC.
By: /S/
----------------------------------
Title:
THE ADVISORY BOARD OF NEVADA
INC.
By: /S/
----------------------------------
Title:
14
LENDER CONSENT LETTER
CUMULUS MEDIA INC.
AMENDED AND RESTATED CREDIT AGREEMENT
DATED AS OF AUGUST 31, 1999
To: ▇▇▇▇▇▇ Commercial Paper Inc.,
as Administrative Agent
▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
Reference is made to the Amended and Restated Credit
Agreement, dated as of August 31, 1999 (as amended, supplemented or otherwise
modified, the "Credit Agreement"), among Cumulus Media Inc., an Illinois
corporation (the "Borrower"), the Lenders parties thereto, ▇▇▇▇▇▇ Brothers Inc.,
as Arranger, Barclays Capital, as Syndication Agent, and ▇▇▇▇▇▇ Commercial Paper
Inc., as Administrative Agent. Unless otherwise defined herein, capitalized
terms used herein and defined in the Credit Agreement are used herein as therein
defined.
The Borrower has requested that the Required Lenders and the
Required Prepayment Lenders amend certain provisions of the Credit Agreement,
waive certain requirements of the Credit Agreement and grant certain consents,
in each case on the terms described in the Amendment in the form attached hereto
as Exhibit A (the "Amendment").
Pursuant to Section 10.1(b) of the Credit Agreement, the
undersigned Lender hereby consents to the execution by the Administrative Agent
of the Amendment.
Very truly yours,
----------------------------------------
(NAME OF LENDER)
By:
-------------------------------------
Name:
Title:
Dated as of September 27, 2000
15
Annex A
PRICING GRID FOR LOANS
Applicable Applicable
Margin for Margin
Eurodollar For Base Applicable Applicable Applicable Applicable
Loans - Rate Loans - Margin for Margin for Margin for Margin for
Revolving Revolving Eurodollar Base Rate Eurodollar Base Rate
Credit Credit Loans Loans - Loans - Loans - Loans -
Loans and and Tranche B Tranche B Tranche C Tranche C
Consolidated Conversion Conversion Term Term Term Term
Leverage Ratio Term Loans Term Loans Loans Loans Loans Loans
--------------- ---------- ------------ ---------- ---------- ----------- ----------
>7.00 to 1.00 3.250% 2.250% 3.375% 2.375% 3.500% 2.500%
-
>6.50 to 1.00 and 3.000% 2.000% 3.375% 2.375% 3.500% 2.500%
- and <7.00 to
1.00
> 5.50 to 1.00 2.750% 1.750% 3.375% 2.375% 3.500% 2.500%
- and <6.50 to
1.00
>5.00 to 1.00 2.500% 1.500% 3.000% 2.000% 3.125% 2.125%
- and <5.50 to
1.00
>4.00 to 1.00 and 2.250% 1.250% 3.000% 2.000% 3.125% 2.125%
- and <5.00 to
1.00
< 4.00 to 1.00 1.750% 0.750% 2.750% 1.750% 2.875% 1.875%
-
Changes in the Applicable Margin with respect to Loans resulting from changes in
the Consolidated Leverage Ratio shall become effective on each date (each, an
"Adjustment Date") on which financial statements are delivered to the Lenders
pursuant to Section 6.1(a) or 6.1(b) (but in any event not later than the 45th
day after the end of each of the first three quarterly periods of each fiscal
year or the 90th day after the end of each fiscal year, as the case may be) and
shall remain in effect until the next change to be effected pursuant to this
paragraph. If any financial statements referred to above are not delivered
within the time periods specified above, then, until such financial statements
are delivered, the Consolidated Leverage Ratio as at the end of the fiscal
period that would have been covered thereby shall for the purposes of this
Pricing Grid be deemed to be greater than 7.00 to 1.00. In addition, at all
times while an Event of Default shall have occurred and be continuing, the
Consolidated Leverage Ratio shall for the purposes of this Pricing Grid be
deemed to be greater than 7.00 to 1.00. Each determination of the Consolidated
Leverage Ratio pursuant to this Pricing Grid shall be made with respect to the
period of four consecutive fiscal quarters of the Borrower ending at the end of
the period covered by the relevant financial statements.
16
Schedule A
PURCHASE
TRANSACTION MARKET PRICE
----------- ------ --------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Communications Abilene, TX (ASSET SWAP) $ 300,000
Mountain Wireless "B" Augusta-Waterville, ME 0
▇▇▇▇▇▇▇▇ Broadcasting Bismarck, ND 0
Solar Broadcasting Columbus, GA 0
Signature Columbus, GA (ASSET SWAP) 0
Charisma Communications Columbus-Starkville, MS 0
Radio Columbus Columbus-Starkville, MS 0
Marathon Media Eugene, OR 7,750,000
Vinewood Communications Fayetteville, AR 2,000,000
Muirfield Communications Fayetteville, NC; 6,150,000
Cape Fear Broadcasting Fayetteville, NC; 23,500,000
Cape Fear Broadcasting Wilmington, NC 23,500,000
▇▇▇▇▇▇▇▇ City Bdcstg. Florence SC 850,000
LKR Communications Ft.▇▇▇▇▇ 160,000
KenCannon Communications Killeen-Temple, TX 1,250,000
▇▇▇▇ Broadcasting Killeen-Temple, TX 425,000
Southern Broadcasting Melbourne, FL 9,500,000
▇▇▇▇▇▇▇ Broadcasting Mobile, AL 750,000
McDonald Media Group Montgomery, AL 10,000,000
Shawnee Broadcasting Topeka, KS 3,000,000
Other Miscellaneous 963,000
CONNOISSEUR COMMUNICATIONS Various Midwest Markets 253,942,318
MCDONALD MEDIA Oxnard-Ventura, CA; Santa Barbara, CA 33,600,000
CLEAR CHANNEL Cedar Rapids, IA; Melbourne, FL; Shreveport, LA; 76,002,000
Harrisburg, PA 78,000,000
GROSS PURCHASE PRICE $ 531,642,318
LESS CCU SWAP IMPACT ▇▇▇ Arbor, Chattanooga, Eau Claire, McAllen, Salisbury; (167,522,000)
Mankato, New Ulm, Mason City, Rochester (45,915,000)
Evansville, IN (9,390,000)
Columbus, GA (19,454,000)
Phase 3 A (78,000,000)
Phase 3B (55,400,000)
-------------
NET TOTAL PENDING PURCHASE PRICE $ 155,961,318
