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EXHIBIT 10.11
EXECUTION
XXXXXXX XX ACQUISITION CORP.
XXXXXXX BROADCASTING OF EASTERN NORTH CAROLINA, INCORPORATED
XXXXXXX BROADCASTING OF EASTERN PENNSYLVANIA, INC.
XXXXXXX BROADCASTING OF NEW JERSEY, INC.
W & B MEDIA, INC.
XXXXXXX BROADCASTING OF SOUTHWEST FLORIDA, INC.
XXXXXXX BROADCASTING OF COASTAL CAROLINA, INC.
XXXXXXX-XXXX ACQUISITION PARTNERSHIP
XXXXXXX RADIO, INC.
C S R A BROADCASTERS, INC.
XXXXXXX COMMUNICATIONS, INC.
XXXXXXX BROADCASTING OF AUGUSTA, INC.
THIRD AMENDMENT AND LIMITED WAIVER TO CREDIT AGREEMENT
This THIRD AMENDMENT AND LIMITED WAIVER TO CREDIT AGREEMENT (this
"AMENDMENT") is dated as of February 7, 2000 and entered into by and among
XXXXXXX XX ACQUISITION CORP., a Delaware corporation ("FM ACQUISITION CORP."),
XXXXXXX BROADCASTING OF EASTERN NORTH CAROLINA, INCORPORATED, a North Carolina
corporation ("XXXXXXX OF NORTH Carolina"), XXXXXXX BROADCASTING OF EASTERN
PENNSYLVANIA, INC., a Delaware corporation ("XXXXXXX OF PENNSYLVANIA"), XXXXXXX
BROADCASTING OF NEW JERSEY, INC., a Delaware corporation ("XXXXXXX OF NEW
JERSEY"), W & B MEDIA, INC., a North Carolina corporation ("W&B"), XXXXXXX
BROADCASTING OF SOUTHWEST FLORIDA, INC., a Delaware corporation ("XXXXXXX OF
FLORIDA"), XXXXXXX BROADCASTING OF COASTAL CAROLINA, INC., a Delaware
corporation ("XXXXXXX OF COASTAL CAROLINA"), XXXXXXX-XXXX ACQUISITION
PARTNERSHIP, a Delaware general partnership ("XXXXXXX-XXXX"), XXXXXXX RADIO,
INC., a Delaware corporation ("XXXXXXX RADIO"), C S R A BROADCASTERS, INC., a
Georgia corporation ("CSRA"), XXXXXXX COMMUNICATIONS, INC., a Delaware
corporation ("XXXXXXX COMMUNICATIONS") and XXXXXXX BROADCASTING OF AUGUSTA,
INC., a Delaware corporation ("XXXXXXX OF AUGUSTA"); each of FM Acquisition
Corp., Xxxxxxx of North Carolina, Xxxxxxx of Pennsylvania, Xxxxxxx of New
Jersey, W&B, Xxxxxxx of Florida, Xxxxxxx of Coastal Carolina, Xxxxxxx-Xxxx,
Xxxxxxx Radio, CSRA, Xxxxxxx Communications and Xxxxxxx of Augusta are a
"BORROWER" and collectively, the "BORROWERS"), on a joint and several basis, the
financial institutions listed on the signature pages hereof ("LENDERS"), the
CREDIT SUPPORT PARTIES (as defined in Section 4 hereof) listed on the signature
pages hereof and BANK OF MONTREAL, CHICAGO BRANCH ("BANK OF MONTREAL"), as agent
for Lenders (in such capacity, "AGENT"), and is made with reference to that
certain Credit Agreement dated as of March 30, 1998, as amended by that certain
First Amendment to Credit Agreement dated as of August 11, 1999 and that certain
Second Amendment and Limited Consent to Credit Agreement (the "SECOND
AMENDMENT") dated as of December 30, 1999 (as amended, supplemented or
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otherwise modified to the date hereof, the "CREDIT AGREEMENT"), by and among
Borrowers, certain Lenders and Agent. Capitalized terms used herein without
definition shall have the same meanings herein as set forth in the Credit
Agreement.
RECITALS
WHEREAS, Borrowers desire to waive compliance with the provisions
of subsection 6.9 of the Credit Agreement until March 15, 2000 and to amend the
Credit Agreement to make certain amendments thereto, in each case on the terms
set forth herein.
NOW, THEREFORE, in consideration of the premises and the
agreements, provisions and covenants herein contained, the parties hereto agree
as follows:
SECTION 1. AMENDMENT TO THE CREDIT AGREEMENT
Subsection 7.7 of the Credit Agreement is hereby amended by
deleting subdivision (vii) thereof in its entirety and substituting therefor the
following:
"(vii) At any time after the First Amendment Effective Date,
Borrowers and their respective Subsidiaries may sell or otherwise
transfer the Transferred Tower Sites to BFT; provided that (a) the
consideration for such sale or transfer shall consist of a
promissory note or notes in an aggregate principal amount of not
less than $2,800,000, which shall have a final maturity of not
more than 20 years from the date of issuance thereof, shall
provide for monthly cash interest at a per annum rate of not less
than 6.0%, and shall provide for monthly repayments of principal
such that the amount of each monthly installment of principal and
interest through and including the last such installment shall be
equal to each other such installment, (b) those Borrowers which
are transferors of such Transferred Tower Sites (collectively, the
"TRANSFEROR BORROWERS") shall, concurrently with such sale or
transfer, enter into lease contracts with BFT for such Transferred
Tower Sites, which contracts shall be in form and substance
reasonably satisfactory to Agent, and (c) in any event, in any
month following such transfer the aggregate of all lease payments
for such Transferred Tower Sites made in such month by Transferor
Borrowers shall not exceed the amount of the installment of
principal and interest paid during such month in cash to Borrowers
pursuant to the promissory note or notes referred to in the
preceding clause (a); and"
SECTION 2. LIMITED WAIVER
Lenders hereby waive compliance with the provisions of subsection
6.9 of the Credit Agreement requiring Borrowers to maintain in effect one or
more Interest Rate Agreements with respect to the Loans, in an aggregate
notional principal amount at any time of not less than an amount equal to 50% of
the then outstanding principal balance of the Loans; provided, that Borrowers
shall comply with all such provisions of subsection 6.9 of the Credit Agreement
on or before March 15, 2000.
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SECTION 3. BORROWERS' REPRESENTATIONS AND WARRANTIES
In order to induce Lenders to enter into this Amendment and to
amend the Credit Agreement in the manner provided herein, Borrowers represent
and warrant to each Lender that the following statements are true, correct and
complete:
A. POWER AND AUTHORITY. Each Credit Party is a corporation, limited
liability company, partnership or limited partnership validly existing and in
good standing under the laws of its state of organization. Each Credit Party has
all requisite corporate, partnership or limited partnership power and authority
to enter into this Amendment and to carry out the transactions contemplated by,
and perform its obligations under, the Credit Agreement as amended by this
Amendment (as so amended, the "AMENDED AGREEMENT").
B. AUTHORIZATION OF AGREEMENT. The execution and delivery of this
Amendment and the performance of the Amended Agreement have been duly authorized
by all necessary corporate, partnership or limited partnership 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 Borrowers of the Amended Agreement do not
and will not (i) violate any provision of any law or any governmental rule or
regulation applicable to any Credit Party, the Certificate or Articles of
Incorporation, Certificate of Limited Partnership, Partnership Agreement or
Bylaws of any Credit Party or any order, judgment or decree of any court or
other agency of government binding on any Credit Party, (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 any Credit Party, (iii) result in or
require the creation or imposition of any Lien upon any of the properties or
assets of any Credit Party (other than any Liens created under any of the Loan
Documents in favor of Agent on behalf and for the ratable benefit of Lenders),
or (iv) require any approval of stockholders or any approval or consent of any
Person under any Contractual Obligation of any Credit Party.
D. GOVERNMENTAL CONSENTS. The execution and delivery by each Credit
Party of this Amendment and the performance by Borrowers of the Amended
Agreement 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 including, without limitation, the
FCC, except for filings required in connection with the perfection of the
security interests or the exercise of the rights granted pursuant to the
Security Documents and filings required with the FCC in connection with the
Acquisitions contemplated by the Permitted Acquisition Documents and the filing
of this Amendment and related documents with the FCC.
E. BINDING OBLIGATION. This Amendment and the Amended Agreement
have been duly executed and delivered by each Credit Party which 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.
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F. 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 Third 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.
G. ABSENCE OF DEFAULT. After giving effect to this Amendment, 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 4. ACKNOWLEDGMENT AND CONSENT
Each of the Borrowers and each of the Persons indicated as (i)
Subsidiary Guarantors or (ii) Subordinated Creditors on the signature pages
hereof (each individually a "CREDIT SUPPORT PARTY" and collectively, the "CREDIT
SUPPORT PARTIES") hereby acknowledges and agrees that each Loan Document and
Related Agreement to which it is a party is in full force and effect and shall
not be limited or impaired in any manner by the effectiveness of this Amendment
and the transactions contemplated hereby.
SECTION 5. MISCELLANEOUS
A. REFERENCE TO AND EFFECT ON THE CREDIT AGREEMENT AND THE OTHER
LOAN DOCUMENTS.
(i) On and after the Third Amendment Effective Date, 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
applicable 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 waived or 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) Without limiting the generality of the provisions of Section
10.6 of the Credit Agreement, the waiver and the amendment set
forth in Sections 1 and 2 shall be limited precisely as written,
and nothing in this Amendment shall be deemed to (a) constitute a
waiver of compliance by Borrowers with respect to (i) subsection
6.9 of the Credit Agreement in any other instance or (ii) any
other term, provision or condition of the Credit Agreement or any
of the Loan Documents, or (b) prejudice or operate as a waiver of
any right, power or remedy that Agent or any Lender may now have
or may have in the future under or in connection with the Credit
Agreement or any of the other Loan Documents.
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B. FEES AND EXPENSES. Borrowers acknowledge that all reasonable
costs, fees and expenses incurred by Agent and its counsel with respect to this
Amendment and the documents and transactions contemplated hereby shall be for
the account of Borrowers, jointly and severally.
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 HERETO AND ALL OTHER ASPECTS HEREOF SHALL BE DEEMED TO BE MADE
UNDER, SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE
WITH, THE LAWS OF THE STATE OF NEW YORK (INCLUDING 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. This Amendment shall become effective upon the execution of a
counterpart hereof by each Borrower, each Credit Support Party, Requisite
Lenders and receipt by Borrowers and Agent of written or telephonic notification
of such execution and authorization of delivery thereof (the "THIRD 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.
BORROWERS: XXXXXXX XX ACQUISITION CORP.
By: /s/ XXXXXXXX XXXXXXX
------------------------------------
Name: B. Xxxxxxxx Xxxxxxx
Title: Secretary
XXXXXXX BROADCASTING OF EASTERN NORTH
CAROLINA, INCORPORATED
By: /s/ XXXXXXXX XXXXXXX
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Name: B. Xxxxxxxx Xxxxxxx
Title: Assistant Secretary
XXXXXXX BROADCASTING OF EASTERN
PENNSYLVANIA, INC.
By: /s/ XXXXXXXX XXXXXXX
------------------------------------
Name: B. Xxxxxxxx Xxxxxxx
Title: Secretary
XXXXXXX BROADCASTING OF NEW JERSEY, INC.
By: /s/ XXXXXXXX XXXXXXX
------------------------------------
Name: B. Xxxxxxxx Xxxxxxx
Title: Secretary
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W & B MEDIA, INC.
By: /s/ XXXXXXXX XXXXXXX
------------------------------------
Name: B. Xxxxxxxx Xxxxxxx
Title: Secretary
XXXXXXX BROADCASTING OF SOUTHWEST
FLORIDA, INC.
By: /s/ XXXXXXXX XXXXXXX
------------------------------------
Name: B. Xxxxxxxx Xxxxxxx
Title: Secretary
XXXXXXX BROADCASTING OF COASTAL
CAROLINA, INC.
By: /s/ XXXXXXXX XXXXXXX
------------------------------------
Name: B. Xxxxxxxx Xxxxxxx
Title: Secretary
XXXXXXX-XXXX ACQUISITION PARTNERSHIP
By: XXXXXXX XX ACQUISITION CORP.,
its general partner
By: /s/ XXXXXXXX XXXXXXX
------------------------------------
Name: B. Xxxxxxxx Xxxxxxx
Title: Secretary
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XXXXXXX RADIO, INC.
By: /s/ XXXXXXXX XXXXXXX
------------------------------------
Name: B. Xxxxxxxx Xxxxxxx
Title: Secretary
C S R A BROADCASTERS, INC.
By: /s/ XXXXXXXX XXXXXXX
------------------------------------
Name: B. Xxxxxxxx Xxxxxxx
Title: Secretary
XXXXXXX BROADCASTING OF AUGUSTA, INC.
By: /s/ XXXXXXXX XXXXXXX
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Name: B. Xxxxxxxx Xxxxxxx
Title: Secretary
XXXXXXX COMMUNICATIONS, INC.
By: /s/ XXXXXXXX XXXXXXX
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Name: B. Xxxxxxxx Xxxxxxx
Title: Secretary
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XXXXXXXXXX XXXXXXXXXX:
WXTU LICENSE LIMITED PARTNERSHIP
WPOW LICENSE LIMITED PARTNERSHIP
WRXK LICENSE LIMITED PARTNERSHIP
WEWO LICENSE LIMITED PARTNERSHIP
WFLB LICENSE LIMITED PARTNERSHIP
WDAS LICENSE LIMITED PARTNERSHIP
WKIS LICENSE LIMITED PARTNERSHIP
WIKS LICENSE LIMITED PARTNERSHIP
WMGV LICENSE LIMITED PARTNERSHIP
WXNR LICENSE LIMITED PARTNERSHIP
WAZZ LICENSE LIMITED PARTNERSHIP
WJBX LICENSE LIMITED PARTNERSHIP
By: XXXXXXX XX ACQUISITION CORP.,
the general partner of each of
the foregoing
By: /s/ XXXXXXXX XXXXXXX
------------------------------------
Name: B. Xxxxxxxx Xxxxxxx
Title: Secretary
WTMR LICENSE LIMITED PARTNERSHIP
By: XXXXXXX BROADCASTING OF NEW JERSEY,
INC., its general partner
By: /s/ XXXXXXXX XXXXXXX
------------------------------------
Name: B. Xxxxxxxx Xxxxxxx
Title: Secretary
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WNCT LICENSE LIMITED PARTNERSHIP
By: XXXXXXX BROADCASTING OF COASTAL
CAROLINA, INC.,
its general partner
By: /s/ XXXXXXXX XXXXXXX
--------------------------------
Name: B. Xxxxxxxx Xxxxxxx
Title: Secretary
WKML LICENSE LIMITED PARTNERSHIP
By: XXXXXXX BROADCASTING OF EASTERN
NORTH CAROLINA, INCORPORATED,
its general partner
By: /s/ XXXXXXXX XXXXXXX
--------------------------------
Name: B. Xxxxxxxx Xxxxxxx
Title: Secretary
WWDB LICENSE LIMITED PARTNERSHIP
By: XXXXXXX BROADCASTING OF EASTERN
PENNSYLVANIA, INC.,
its general partner
By: /s/ XXXXXXXX XXXXXXX
--------------------------------
Name: B. Xxxxxxxx Xxxxxxx
Title: Secretary
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WXKB LICENSE LIMITED PARTNERSHIP
By: XXXXXXX BROADCASTING OF SOUTHWEST
FLORIDA, INC.,
its general partner
By: /s/ XXXXXXXX XXXXXXX
--------------------------------
Name: B. Xxxxxxxx Xxxxxxx
Title: Secretary
WSFL LICENSE LIMITED PARTNERSHIP
By: W & B MEDIA, INC.,
its general partner
By: /s/ XXXXXXXX XXXXXXX
--------------------------------
Name: B. Xxxxxxxx Xxxxxxx
Title: Secretary
WQAM LICENSE LIMITED PARTNERSHIP
By: XXXXXXX-XXXX ACQUISITION
PARTNERSHIP,
its general partner
By: XXXXXXX XX ACQUISITION CORP.,
its general partner
By: /s/ XXXXXXXX XXXXXXX
-------------------------------
Name: B. Xxxxxxxx Xxxxxxx
Title: Secretary
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SUBORDINATED CREDITORS:
XXXXXXX BROADCASTING OF PHILADELPHIA,
INC.
By: /s/ XXXXXXXX XXXXXXX
------------------------------------
Name: B. Xxxxxxxx Xxxxxxx
Title: Secretary
XXXXXXX-XXXX BROADCASTING OF MIAMI, INC.
By: /s/ XXXXXXXX XXXXXXX
------------------------------------
Name: B. Xxxxxxxx Xxxxxxx
Title: Secretary
XXXXXXX BROADCASTING MANAGEMENT
CORPORATION
By: /s/ XXXXXXXX XXXXXXX
------------------------------------
Name: B. Xxxxxxxx Xxxxxxx
Title: Secretary
XXXXXX XXXXXXX,
an individual
/s/ XXXXXX XXXXXXX
------------------------------------
Xxxxxx Xxxxxxx
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LENDERS: BANK OF MONTREAL, CHICAGO BRANCH,
individually and as Agent
By: /s/ XXXXXX XXXXXX
------------------------------------
Name: Xxxxxx Xxxxxx
Title: Director
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FLEET NATIONAL BANK
By: /s/ XXXXXX XXXXXXXX
------------------------------------
Name: Xxxxxx Xxxxxxxx
Title: Vice President
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KEY CORPORATE CAPITAL INC.
By: /s/ XXXXX X. XXXXXXX
------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Vice President
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BANK OF AMERICA, N.A.
By: /s/ XXXX XXXXXXX
------------------------------------
Name: Xxxx Xxxxxxx
Title: Managing Director
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PARIBAS
By: /s/ XXXXXXXXX XXXXXXXX
------------------------------------
Name: Xxxxxxxxx Xxxxxxxx
Title: Assistant Vice President
By: /s/ XXXXXXX XXXXX
------------------------------------
Name: Xxxxxxx Xxxxx
Title: Managing Director
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XXX XXXX XX XXX XXXX
By: /s/ XXXXXXX X. XXXXXX
------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
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XXXXX XXXX XX XXXXXXXXXX
By: /s/ XXXXX X. XXXXXX
------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President
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