Exhibit 10.12
EXECUTION COPY
FOURTH AMENDMENT, dated as of
March 26, 2009 (the “ Amendment ”), to the
CREDIT AGREEMENT, dated as of June 12, 2007 (as amended or
otherwise modified prior to the date hereof, the “ Credit
Agreement ”), among CITADEL BROADCASTING CORPORATION, a
Delaware corporation (the “ Company ”), the
several lenders from time to time parties thereto (the “
Lenders ”), the Syndication Agents and Documentation
Agents party thereto and JPMORGAN CHASE BANK, N.A., as
administrative agent for the Lenders (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 extended credit to the Company on the
terms set forth in the Credit Agreement;
WHEREAS, the Company has requested
that the Required Lenders approve certain amendments to the Credit
Agreement;
WHEREAS, pursuant to such request,
the Required Lenders have consented to amend the Credit Agreement
and to waive certain provisions of the Credit Agreement on the
terms and conditions contained herein;
NOW, THEREFORE, the parties hereto
hereby agree as follows:
SECTION 1. DEFINITIONS
.
1.1 Defined Terms . Terms
defined in the Credit Agreement and used herein shall have the
meanings given to them in the Credit Agreement unless otherwise
defined herein or the context otherwise requires.
SECTION 2. AMENDMENTS
.
2.1 Amendment of Subsection 1.1
(Defined Terms ).
(a) Subsection 1.1 of the Credit
Agreement is hereby amended by adding the following terms in proper
alphabetical order:
“ Available Cash
”: at any date, the aggregate amount of unencumbered cash and
Cash Equivalents held by the Company and its Subsidiaries at such
date (other than cash and Cash Equivalents held in the Excess Cash
Account).
“ Capital Stock
”: any and all shares, interests, participations or other
equivalents (however designated) of capital stock of a corporation,
any and all equivalent ownership interests in a Person (other than
a corporation) and any and all warrants, rights or options to
purchase any of the foregoing.
“ Consolidated
Liquidity ”: as of any date of determination, the sum of
(i) Available Cash and (ii) the Available Revolving
Credit Commitments of all Lenders.
“ Excess Cash ”:
as defined in subsection 12.11.
“ Excess Cash Account
”: as defined in subsection 12.11.
“ Excess Cash Account
Agreement ”: as defined in subsection 12.11.
“ Facility Fee ”:
as defined in subsection 8.22.
“ Facility Fee Rate
”: (a) in the case of the Revolving Facility and the
Tranche A Term Facility, a rate per annum equal to 4.50%;
(b) in the case of the Tranche B Term Facility, a rate per
annum equal to 4.25%.
“ Fourth Amendment
”: the Fourth Amendment dated as of March 26, 2009 to
this Agreement.
“ Fourth Amendment
Effective Date ”: the date on which each of the
conditions to effectiveness of the Fourth Amendment have been
satisfied, in accordance with the terms of Section 3.1
thereof, which date is March 27, 2009.
“ Permitted Subordinated
Refinancing Indebtedness ”: unsecured unguaranteed
subordinated Indebtedness of the Company not requiring principal
payments prior to September 30, 2014 having terms satisfactory
to the Required Lenders, the Net Proceeds of which are used to
refinance the Existing Convertible Subordinated Notes.
“ Recovery Event
”: any settlement of or payment in respect of any property or
casualty insurance claim or any condemnation proceeding relating to
any asset of the Company or any of its Subsidiaries.
“ Required Cash Collateral
Amount ”: as defined in subsection 12.11.
“ Steering Committee
”: the informal committee formed by the Administrative Agent
consisting of the Administrative Agent and certain Lenders, as such
committee may be constituted from time to time.
“ Total Revolving Credit
Commitments ”: at any time, the aggregate amount of the
Revolving Credit Commitments at such time.
“ Tranch A Termination
Date ”: the earlier of (i) June 12, 2013, and
(ii) any other date on which the remaining principal balance
of the Tranche A Term Loans shall become due hereunder.
“ Tranch B Termination
Date ”: the earlier of (i) June 12, 2014, and
(ii) any other date on which the remaining principal balance
of the Tranche B Term Loans shall become due hereunder.
(b) The definition of “
ABR ” in subsection 1.1 of the Credit Agreement is
hereby amended by deleting it in its entirety and replacing it with
the following:
“ ABR ”: for any
day, a rate per annum (rounded upwards, if necessary, to the next
1/16 of 1%) equal to the greatest of (a) the Prime Rate in
effect on such day, (b) the Federal Funds Effective Rate in
effect on such day plus 1/2 of 1% and (c) the Eurodollar Rate
for a Eurodollar Loan with a one-month interest period commencing
on such day plus 1.0%. For purposes hereof: “Prime
Rate” shall mean the rate of interest per annum publicly
announced from time to time by JPMCB as its prime rate in effect at
its principal office in New York City (the Prime Rate not being
intended to be the lowest rate of interest charged by JPMCB in
connection with extensions of credit to debtors); and
“Federal Funds Effective Rate” shall mean, for any day,
the weighted average of the rates
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on overnight federal funds
transactions with members of the Federal Reserve System arranged by
federal funds brokers, as published on the next succeeding Business
Day by the Federal Reserve Bank of New York, or, if such rate is
not so published for any day which is a Business Day, the average
of the quotations for the day of such transactions received by the
Administrative Agent from three federal funds brokers of recognized
standing selected by it. If for any reason the Administrative Agent
shall have determined (which determination shall be conclusive
absent manifest error) that it is unable to ascertain the Federal
Funds Effective Rate, for any reason, including the inability or
failure of the Administrative Agent to obtain sufficient quotations
in accordance with the terms hereof, the ABR shall be determined
without regard to clause (b) of the first sentence of this
definition, as appropriate, until the circumstances giving rise to
such inability no longer exist. For purposes of this definition,
the Eurodollar Rate shall be determined using the Eurodollar Rate
as otherwise determined by the Administrative Agent in accordance
with the definition of Eurodollar Rate, except that (x) if a
given day is a Business Day, such determination shall be made on
such day (rather than two Business Days prior to the commencement
of an Interest Period) or (y) if a given day is not a Business
Day, the Eurodollar Rate for such day shall be the rate determined
by the Administrative Agent pursuant to preceding clause
(x) for the most recent Business Day preceding such day. Any
change in the ABR due to a change in the Prime Rate, the Federal
Funds Effective Rate or the Eurodollar Rate shall be effective as
of the opening of business on the effective day of such change in
the Prime Rate, the Federal Funds Effective Rate or the Eurodollar
Rate, respectively.
(c) The definition of “
Applicable Margin ” in subsection 1.1 of the Credit
Agreement is hereby amended by deleting it in its entirety and
replacing it with the following (it being understood that
(i) the definition of “Applicable Margin” (as in
effect immediately prior to the Fourth Amendment Effective Date)
shall be applicable for all periods prior to the Fourth Amendment
Effective Date and (ii) the definition of “Applicable
Margin” (as in effect on the Fourth Amendment Effective Date)
shall be applicable for all periods on and after the Fourth
Amendment Effective Date):
“ Applicable Margin
”: (a) for each Revolving Credit Loan and Swing Line
Loan (with respect to ABR only) for each day, 1.50% per annum
in the case of a Eurodollar Loan or 0.50% per annum in the
case of an ABR Loan, (b) for each Tranche A Term Loan for each
day, 1.50% per annum in the case of a Eurodollar Loan or
0.50% per annum in the case of an ABR Loan and (c) for
each Tranche B Term Loan for each day, 1.75% per annum in the
case of a Eurodollar Loan or 0.75% per annum in the case of an
ABR Loan.
(d) The definition of “
Consolidated EBITDA ” in subsection 1.1 of the Credit
Agreement is hereby amended by (i) deleting subclause
(i) of clause (v) thereof in its entirety and replacing
it with the following: “(i) [INTENTIONALLY OMITTED],”,
(ii) inserting immediately after the phrase “for
restructuring costs recorded” in subclause (l) of clause
(v) thereof the phrase “within 18 months of the Closing
Date” and (iii) adding at the end of subclause
(o) of clause (v) thereof the following:
including costs, fees and expenses
in connection with the Fourth Amendment and related transactions
(other than fees and expenses of financial advisors to the
Company), provided that fees and expenses of financial advisors or
other professionals paid by the Company as part of a restructuring
may be added back in the calculation of Consolidated EBITDA only to
extent they constitute customary monthly fees and expenses of such
professionals,
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(e) The definition of “
Interest Payment Date ” in subsection 1.1 of the
Credit Agreement is hereby amended by deleting such definition in
its entirety and replacing it with the following:
“ Interest Payment Date
”: (a) as to ABR Loans, the last day of each calendar
month, commencing on the first such day to occur after any ABR
Loans are made or any Eurodollar Loans are converted to ABR Loans,
(b) as to any Eurodollar Loan, the day which is one month
after the date on which such Eurodollar Loan is made or an ABR Loan
is converted to such a Eurodollar Loan, the date that is one month
thereafter (if the applicable Interest Period is a three-month
period) and the last day of such Interest Period and (c) in
the case of the Revolving Credit Loans (in addition to any
applicable Interest Payment Date pursuant to clauses (a) and
(b) hereof), the Revolving Credit Termination Date.
(f) The definition of
“Interest Period” in subsection 1.1 of the Credit
Agreement is hereby amended by adding the following sentence at the
end thereof:
Notwithstanding the foregoing, each
Interest Period for Eurodollar Loans beginning on or after the
Fourth Amendment Effective Date shall be three months in duration
unless a different length Interest Period is approved by the
Administrative Agent.
(g) The definition of “
Material Subsidiaries ” in subsection 1.1 of the
Credit Agreement is hereby amended by replacing the comma with the
phrase “and” before the beginning of clause
(iii) and deleting the entire clause (iv) until the end
of such definition.
(h) The definition of “ Net
Proceeds ” in subsection 1.1 of the Credit Agreement is
hereby amended by deleting such definition in its entirety and
replacing it with the following:
“ Net Proceeds ”:
(a) in connection with any Asset Sale or any Recovery Event,
the proceeds thereof in the form of cash and Cash Equivalents
(including any such proceeds received by way of deferred payment of
principal pursuant to a note or installment receivable or purchase
price adjustment receivable or otherwise, but only as and when
received), net of attorneys’ fees, accountants’ fees,
investment banking fees, amounts required to be applied to the
repayment of Indebtedness secured by a Lien expressly permitted
hereunder on any asset that is the subject of such Asset Sale or
Recovery Event (other than any Lien pursuant to a Security
Document), any reserves required to be maintained in connection
therewith in accordance with GAAP and other customary fees and
expenses actually incurred in connection therewith and net of taxes
paid or reasonably estimated to be payable as a result thereof
(after taking into account any available tax credits or deductions
and any tax sharing arrangements) and (b) in connection with
any issuance or sale of Capital Stock or any incurrence of
Indebtedness, the cash proceeds received from such issuance or
incurrence, net of attorneys’ fees, investment banking fees,
accountants’ fees, underwriting discounts and commissions and
other customary fees and expenses actually incurred in connection
therewith.
(i) The definition of “
Obligations ” in subsection 1.1 of the Credit
Agreement is hereby amended by inserting the phrase “Facility
Fees, other” immediately after the phrase
“reimbursement obligations,”.
(j) The definition of “
Permitted Minority-Interest Transfer ” in subsection
1.1 of the Credit Agreement is hereby amended by deleting such
definition in its entirety.
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(k) The definition of “
Subsidiary Guarantor ” in subsection 1.1 of the Credit
Agreement is hereby amended by replacing the phrase
“(iv)” with the phrase “(iii)” and by
deleting the following phrase: “, (iii) no
Non-Significant Subsidiary”.
2.2 Amendment of Subsection 6.1
(Revolving Credit Commitments) . Subsection 6.1 of the Credit
Agreement is hereby amended by adding the following paragraph
(c):
(c) On the Fourth Amendment
Effective Date, the Total Revolving Credit Commitments shall be
reduced to $140,000,000 notwithstanding the provisions of
subsection 8.4. $125,000,000 of the Revolving Credit Loans shall
remain outstanding on the Fourth Amendment Effective Date (such
outstanding Revolving Credit Loans, as reduced from time to time,
the “ Funded Portion ”) and may not be
reborrowed if repaid. On and after the Fourth Amendment Effective
Date only that portion of the Total Revolving Credit Commitments in
excess of $125,000,000 (such remaining portion of the Total
Revolving Credit Commitments, as reduced from time to time, the
“ Revolving Portion ”) shall be available on a
revolving credit basis. Any reduction of the Total Revolving Credit
Commitments after the Fourth Amendment Effective Date shall reduce
the Funded Portion and the Revolving Portion ratably.
2.3 Amendment of Subsection 6.2
(Proceeds of Revolving Credit Loans) . Subsection 6.2 of the
Credit Agreement is hereby amended by adding the following at the
end thereof:
Notwithstanding the foregoing, the
proceeds of Loans made after the Fourth Amendment Effective Date
shall be used solely for purposes not prohibited by this
Agreement.
2.4 Amendment of Subsection 6.5
(Procedure for Opening Letters of Credit) . Subsection 6.5 of
the Credit Agreement is hereby amended by replacing the amount
“$100,000,000” with the amount
“$5,000,000”.
2.5 Amendment of Subsection 6.7
(Swingline Commitment) . Subsection 6.7 of the Credit Agreement
is hereby amended by replacing the amount “$20,000,000”
with the amount “$5,000,000” in clause
(a) thereof.
2.6 Amendment of Subsection 8.5
(Optional Prepayments ). Subsection 8.5 of the Credit Agreement
is hereby amended by adding the following as a new paragraph at the
end thereof:
The Borrower agrees that it will not
reduce (by payment, prepayment or reduction of Revolving Credit
Commitments) the aggregate amount of the Total Revolving Credit
Commitments (or, following the termination of the Revolving Credit
Commitments, the Extensions of Credit under the Revolving Credit
Facility) or make any payment or prepayment of the Tranche A Term
Loans or the Tranche B Term Loans unless the aggregate amount of
each of the other Facilities is simultaneously and ratably
reduced.
2.7 Amendment of Subsection 8.6
(Mandatory Prepayments ). Subsection 8.6 of the Credit
Agreement is hereby amended by deleting such subsection in its
entirety and replacing it with the following:
8.6 Mandatory Prepayments .
(a) In the event of any issuance of Indebtedness of the
Company or any of its Subsidiaries (other than Indebtedness of the
Company or any of its Subsidiaries permitted to be issued under
subsection 13.2), an
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amount equal to 100% of the Net
Proceeds of such Indebtedness issuance shall, unless the Company
and the Required Application Lenders otherwise agree, on the date
of such Indebtedness issuance be deposited by the Company into the
Excess Cash Account or applied to the prepayment of the Term Loans
and the reduction of the Revolving Credit Commitments as set forth
in subsection 8.6(d).
(b) In the event of any issuance of
Capital Stock of the Company or any of its Subsidiaries, an amount
equal to 100% of the Net Proceeds of such issuance shall, unless
the Company and the Required Application Lenders otherwise agree,
on the date of such issuance be deposited by the Company into the
Excess Cash Account or applied to the prepayment of the Term Loans
and the reduction of the Revolving Credit Commitments as set forth
in subsection 8.6(d).
(c) Subject to paragraph
(e) below, in the event of receipt by the Company or any of
its Subsidiaries of Net Proceeds from any Asset Sale (in excess of
$300,000 in the aggregate for all Asset Sales per fiscal year) or
Recovery Event by the Company or any of its Subsidiaries, an amount
equal to 100% of the Net Proceeds of such Asset Sale or Recovery
Event shall, unless the Company and the Required Application
Lenders otherwise agree, on the date of such receipt be deposited
by the Company into the Excess Cash Account or applied to the
prepayment of the Term Loans and the reduction of the Revolving
Credit Commitments as set forth in subsection 8.6(d).
(d) Net Proceeds from the prepayment
events set forth in clauses (a) through (c) of this
subsection 8.6 shall be deposited into the Excess Cash Account;
provided that, on and after January 16, 2010, if the
aggregate amount on deposit in the Excess Cash Account at such
time, after giving effect to the deposit of Net Proceeds pursuant
hereto, would be in excess of the Required Cash Collateral Amount,
the Net Proceeds in excess of the Required Cash Collateral Amount
shall be applied by the Company ratably to the prepayment of the
Term Loans and the permanent reduction of the Revolving Credit
Commitments in the manner set forth in subsection 8.4(a) (and, to
the extent that the Aggregate Revolving Credit Extensions of Credit
plus the then outstanding principal amount of the Swing Line Loans
exceed the Revolving Credit Commitments as so reduced, such net
proceeds shall be applied to the prepayment of the Revolving Credit
Loans and the Swing Line Loans and the cash collateralization of
the Letters of Credit in accordance with subsection 8.4 in an
amount equal to such excess). Partial prepayments of the Term Loans
pursuant to subsection 8.6 shall be applied in inverse order to the
remaining installments of the Term Loans. Prepayments applicable to
the Tranche A Term Loans and the Tranche B Term Loans
shall be made on a pro rata basis based on the aggregate amount of
such Term Loans then outstanding. Interest on Loans repaid pursuant
to this subsection 8.6(d) shall be paid on the applicable Interest
Payment Date.
(e) Notwithstanding the foregoing,
on or after the Fourth Amendment Effective Date, Net Proceeds of
Recovery Events of up to $1,000,000 in respect of any individual
Recovery Event or series of related Recovery Events may be retained
by the Company and its Subsidiaries and applied to repair or
replace the property or assets that are the subject of such
Recovery Events. If such Net Proceeds are not so applied within 180
days following receipt thereof, the Company shall immediately
deposit an amount equal to such Net Proceeds in the Excess Cash
Account.
(f) Prepayments of Eurodollar Loans
pursuant to this subsection 8.6, if not on the last day of the
Interest Period with respect thereto, shall, at the Company’s
option,
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as long as no Default or Event of
Default has occurred and is continuing, be prepaid subject to the
provisions of subsection 8.21 or such prepayment (after application
to any ABR Loans, in the case of prepayments by the Company) shall
be deposited with the Administrative Agent as cash collateral for
such Eurodollar Loans on terms reasonably satisfactory to the
Administrative Agent and thereafter shall be applied to the
prepayment of the Eurodollar Loans on the last day of the
respective Interest Periods for such Eurodollar Loans next ending
most closely to the date of receipt of such Net Proceeds. After
such application, unless a Default or an Event of Default shall
have occurred and be continuing, any remaining interest earned on
such cash collateral shall be paid to the Company.
(g) Upon the Revolving Credit
Termination Date the Company shall, with respect to each then
outstanding Letter of Credit, if any, either (i) cause such
Letter of Credit to be cancelled without such Letter of Credit
being drawn upon or (ii) collateralize the Revolving L/C
Obligations with respect to such Letter of Credit with a letter of
credit issued by banks or a bank satisfactory to the Administrative
Agent on terms satisfactory to the Administrative Agent.
2.8 Amendment of Section 8
(General Provisions Applicable to Loans and Letters of Credit)
. Section 8 of the Credit Agreement is hereby amended by
inserting following new subsection 8.22 at the end of such
Section:
8.22 Facility Fee .
(a) Subject to paragraph (b) of this subsection 8.22, the
Company agrees to pay to the Administrative Agent, for the account
of each Lender, a facility fee (the “ Facility Fee
”) from and including the Fourth Amendment Effective Date on
such Lender’s Extensions of Credit under the Revolving Credit
Facility, Tranche A Term Loans and Tranche B Term Loans outstanding
from time to time at the rate per annum for each day during the
period for which payment is made equal to the applicable Facility
Fee Rate.
(b) The Facility Fee provided for in
this subsection 8.22 shall be payable in arrears (i) in the
case of the Revolving Credit Facility, on the Revolving Credit
Termination Date and on demand thereafter, (ii) in the case of
the Tranche A Term Facility, on the Tranche A Termination Date and
on demand thereafter and (iii) in the case of Tranche B Term
Facility, on the Tranche B Termination Date and on demand
thereafter. The Facility Fee shall be calculated on the basis of a
360 day year for the actual number of days elapsed, but in no event
shall Facility Fees be charged on previously accrued Facility
Fees.
2.9 Amendment of Subsection 12.2
(Certificates; Other Information) . (a) Subsection 12.2 of
the Credit Agreement is hereby amended by (i) deleting the
word “and” at the end of clause (g),
(ii) renumbering clause (h) thereof as clause
(j) and (iii) inserting the following new clauses
(h) and (i):
(h) within 20 days after the end of
each fiscal month of the Company (or, in the case of March, June,
September and December, 30 days after the end of each such fiscal
month) (i) the unaudited consolidated financial statements of
the Company for such fiscal month in the form customarily prepared
by the Company and (ii) a certificate of a Responsible Officer
of the Company (A) stating that, to the best of such
officer’s knowledge, each of the Company and its respective
Subsidiaries has observed or performed all of its covenants and
other agreements, and satisfied every applicable condition,
contained in this Agreement, the Notes and the other Credit
Documents to be
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observed, performed or satisfied by
it, and that such officer has obtained no knowledge of any Default
or Event of Default except as specified in such certificate and
(B) showing in detail as of the end of the such fiscal month
the figures and calculations supporting such statements in respect
of subsection 13.16; and
(i) commencing no later than
April 24, 2009, on Friday of each week, (i) a forecast
for the succeeding 13-week period of the projected consolidated
cash flow of the Company and its Subsidiaries and (ii) a
variance report of actual cash flow for the immediately preceding
week against the then-current forecast for such preceding
week
(b) Subsection 12.2 of the Credit
Agreement is hereby further amended by deleting from paragraph
(b) clause (iii) through the end of such paragraph and
substituting therefor the following:
and (iii) showing in detail as
of the end of the related fiscal period the figures and
calculations supporting such statements in respect of subsection
13.16;
2.10 Amendments of Subsection
12.8 (Additional Subsidiary Guarantors; Pledge of Stock of
Additional Subsidiaries; Additional Collateral) .
(a) Subsection 12.8 of the Credit Agreement is hereby amended
by deleting from paragraph (d) the amount
“$5,000,000” and substituting therefor the amount
“$500,000”.
(b) Subsection 12.8 of the Credit
Agreement is hereby amended by deleting clause (e) of such
subsection in its entirety.
2.11 Amendment of Section 12
(Affirmative Covenants) . Section 12 of the Credit
Agreement is hereby amended by inserting following new subsections
12.10, 12.11, 12.2 and 12.13 at the end of such Section:
12.10 Quarterly Update Call;
Restructuring . (a) Within ten Business Days after the
date financial statements are required to be delivered under clause
(a) or (b) of subsection 12.1, the Company shall hold a
telephone update call with the Steering Committee covering
financial performance, business operations and other matters
reasonably requested by the Administrative Agent.
(b) At the request of the
Administrative Agent, on behalf of the Steering Committee, the
Company shall promptly retain a financial advisor selected from a
list of approved advisors agreed upon by the Company and the
Steering Committee and pursuant to terms reasonably acceptable to
the Steering Committee, which financial advisor shall assist the
Company in promptly providing to the Administrative Agent a
restructuring plan in form a
