EXHIBIT 10.3
LIMITED WAIVER REGARDING FINANCIAL COVENANT CALCULATIONS
October 31, 2001
The Xxxxxxxx Group, Inc.
0000 Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxx X. Xxxxxx
Senior Vice President and
Chief Financial Officer
Ladies and Gentlemen:
Reference is made to that certain Credit Agreement dated as of September
7, 2001 and entered into by and among The Xxxxxxxx Group, Inc., a Delaware
corporation ("Company"), the financial institutions party thereto ("Lenders"),
Credit Suisse First Boston ("CSFB"), as administrative agent for Lenders (in
such capacity, "Administrative Agent") and General Electric Capital Corporation,
as Co-Arranger and as syndication agent for Lenders (in such capacity,
"Syndication Agent"). Capitalized terms used herein without definition shall
have the same meanings herein as set forth therefor in the Credit Agreement.
Company has informed Agent and Lenders that Company has incurred and
will incur certain expenses (the "Merger Related Expenses") during the Fiscal
Quarters ended September 30, 2001 and December 31, 2001, related to an Agreement
and Plan of Merger dated October 5, 2001, by and among Clear Channel
Communications, Inc. ("Clear Channel"), CCMM Sub, Inc. and Company, pursuant to
which, subject to the terms and conditions therein contained, Company expects to
be acquired (the "Acquisition") by Clear Channel through a merger of CCMM Sub,
Inc. with and into Company (the "Merger"). Company has further informed Agent
and Lenders that inclusion of such Merger Related Expenses will reduce Company's
Consolidated EBITDA and will thereby cause Company to violate certain of its
financial covenants as set forth in subsection 7.6 of the Credit Agreement.
At the request of Company the undersigned Lenders, constituting
Requisite Lenders under the Credit Agreement, hereby waive the requirement that
Company's Consolidated EBITDA for the Fiscal Quarters ended September 30, 2001
and December 31, 2001, be determined in accordance with GAAP to the extent, but
only to the extent, that GAAP would require the inclusion of the Merger Related
Expenses as expenses incurred in such Fiscal Quarters; provided that the
foregoing waiver relates solely to Company's calculation of Consolidated EBITDA
for purposes of determining its compliance with the financial covenants set
forth in subsection 7.6.
Without limiting the generality of the provisions of subsection 10.6 of
the Credit Agreement, the waiver set forth herein shall be limited precisely as
written and relates solely to the
non-inclusion of Merger Related Expenses for Company's Fiscal Quarters ended
September 30, 2001 and December 31, 2001, in calculating Consolidated EBITDA for
purposes of determining Company's compliance with the financial covenants set
forth in subsection 7.6 in the manner and to the extent described above. Nothing
in this Limited Waiver shall be deemed to (A) constitute a consent to the
Acquisition, to the Merger, to any Change of Control resulting therefrom or to
any related transactions; (B) constitute a waiver of compliance by Company with
respect to (i) the calculation of the financial covenants contained in
subsection 7.6 of the Credit Agreement in any other instance or (ii) any other
term, provision or condition of the Credit Agreement or any other instrument or
agreement referred to therein, including without limitation, the payment of the
required premiums on the repayment of the Loans as a result of such Acquisition
and Merger pursuant to subsection 2.4 and any Potential Event of Default or
Event of Default arising as a result of such Acquisition, Merger and/or Change
of Control under subsections 7.7 or 8.11; or (C) 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
Limited Waiver) 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.
In order to induce Lenders to enter into this Limited Waiver, Company,
by its execution of a counterpart of this Limited Waiver, represents and
warrants that after giving effect to this Limited Waiver (a) no Event of Default
or Potential Event of Default exists under the Credit Agreement, (b) all
representations and warranties contained in the Credit Agreement and the other
Loan Documents are true, correct and complete in all material respects on and as
of the date hereof 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, and (c)
Company has performed all agreements to be performed on its part as set forth in
the Credit Agreement.
This Limited Waiver 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. The limited waiver
set forth herein shall become effective only upon the occurrence of all of the
following: (i) the execution of counterparts hereof by Company and Guarantors
and by Lenders constituting Requisite Lenders, (ii) receipt by Company and Agent
of written or telephonic notification of such execution and authorization of
delivery thereof and (iii) payment by Company to each Lender consenting to this
Limited Waiver on or prior to November 7, 2001, of a waiver fee equal to 0.05%
of the sum of such Xxxxxx's Term Loan Exposure plus such Xxxxxx's Revolving Loan
Exposure.
2
THIS LIMITED WAIVER 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.
THE XXXXXXXX GROUP, INC.
By:
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Title:
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LENDERS:
CREDIT SUISSE FIRST BOSTON,
individually and as Agent
By:
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Title:
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By:
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Title:
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S-1
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By:
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Title:
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S-2
By its execution of a counterpart of this Limited Waiver, each of the
undersigned, as Guarantors and Subsidiary Grantors under that certain Subsidiary
Guaranty and that certain Security Agreement, each dated as of September 7, 2001
(the "Credit Support Documents"), hereby acknowledges that it has read this
Limited Waiver and consents to the terms thereof and further hereby confirms and
agrees that, notwithstanding the effectiveness of this Limited Waiver, the
obligations of the undersigned under the Credit Support Documents shall not be
impaired or affected and the Credit Support Documents are, and shall continue to
be, in full force and effect and is hereby confirmed and ratified in all
respects.
XXXXXXXX MEDIA GROUP, INC.
XXXXXXXX VENTURES, INC.
AK FLORIDA OUTDOOR, INC.
XXXXXXXX COMMUNICATIONS OF MASSACHUSETTS, INC.
FULL HOUSE SPORTS AND ENTERTAINMENT, INC.
CENTRAL NY NEWS, INC.
TC AVIATION, INC.
XXXXXXXX INTERACTIVE MEDIA, INC.
AK MOBILE TELEVISION, INC.
SSI, INC.
XXXXXXXX SEATTLE STORM, INC.
By:
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Title:
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XXXXXXXX BROADCASTING FRESNO, LLC
By: Xxxxxxxx Media Group, Inc.,
its sole member
By:
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Title:
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S-3
