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SECOND AMENDMENT TO AMENDED AND RESTATED REVOLVING CREDIT AND TERM LOAN AGREEMENT

Loan Agreement
SECOND AMENDMENT TO AMENDED AND RESTATED REVOLVING CREDIT AND TERM LOAN AGREEMENT | Document Parties: EMMIS COMMUNICATIONS CORP | BANK OF AMERICA, N.A. | Centrale Raiffeisen-Boerenleenbank BA, Rabobank Nederland, New York Branch and SunTrust Bank | EMMIS OPERATING COMPANY You are currently viewing:
This Loan Agreement involves

EMMIS COMMUNICATIONS CORP | BANK OF AMERICA, N.A. | Centrale Raiffeisen-Boerenleenbank BA, Rabobank Nederland, New York Branch and SunTrust Bank | EMMIS OPERATING COMPANY

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Title: SECOND AMENDMENT TO AMENDED AND RESTATED REVOLVING CREDIT AND TERM LOAN AGREEMENT
Governing Law: New York     Date: 8/19/2009
Industry: Broadcasting and Cable TV     Law Firm: Paul Weiss     Sector: Services

SECOND AMENDMENT TO AMENDED AND RESTATED REVOLVING CREDIT AND TERM LOAN AGREEMENT, Parties: emmis communications corp , bank of america n.a. , centrale raiffeisen-boerenleenbank ba rabobank nederland new york branch and suntrust bank , emmis operating company
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Exhibit 10.1

SECOND AMENDMENT TO AMENDED AND
RESTATED REVOLVING CREDIT AND TERM LOAN AGREEMENT

     This SECOND AMENDMENT TO AMENDED AND RESTATED REVOLVING CREDIT AND TERM LOAN AGREEMENT , dated as of August 19, 2009 (this “ Amendment ”), is by and among (a) EMMIS COMMUNICATIONS CORPORATION (the “ Parent ”), an Indiana corporation, (b) EMMIS OPERATING COMPANY (the “ Borrower ”), an Indiana corporation, (c) certain Lenders (as defined below) and (d) BANK OF AMERICA, N.A. , as administrative agent (the “ Administrative Agent ”) for itself and the other Lenders party to that certain Amended and Restated Revolving Credit and Term Loan Agreement, dated November 2, 2006, as amended by that certain First Amendment and Consent to Amended and Restated Revolving Credit And Term Loan Agreement, dated as of March 3, 2009 (as further amended, supplemented, and restated or otherwise modified and in effect from time to time, the “ Credit Agreement ”), by and among the Borrower, the Parent, the lending institutions party thereto (the “ Lenders ”), the Administrative Agent, Deutsche Bank Trust Company Americas, as syndication agent, General Electric Capital Corporation, Cooperatieve Centrale Raiffeisen-Boerenleenbank B.A., “Rabobank Nederland”, New York Branch and SunTrust Bank, as co-documentation agents. Capitalized terms used herein without definition shall have the meanings assigned to such terms in the Credit Agreement as set forth on Annex I .

      WHEREAS , the Borrower, the Parent, the Required Lenders and the Administrative Agent have agreed to modify certain terms and conditions of the Credit Agreement as specifically set forth in this Amendment;

      NOW THEREFORE , in consideration of the foregoing premises and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Borrower, the Parent, the Lenders and the Administrative Agent hereby agree as follows:

      §1. Amendment to Credit Agreement . The Credit Agreement is hereby amended in its entirety and replaced with the document attached hereto as Annex I .

      §2. Amendment to Exhibit B to Credit Agreement . Exhibit B to the Credit Agreement is hereby amended in its entirety and replaced with the document attached hereto as Exhibit B to Annex II .

      §3. Amendment to Exhibit E to Credit Agreement . Exhibit E to the Credit Agreement is hereby amended in its entirety and replaced with the document attached hereto as Exhibit E to Annex II .

      §4. Amendment to Add a New Exhibit J to Credit Agreement . A new Exhibit J to the Credit Agreement is hereby added in its entirety in the form attached hereto as Exhibit J to Annex II .

      §5. Amendment to Add a New Exhibit K to Credit Agreement . A new Exhibit K to the Credit Agreement is hereby added in its entirety in the form attached hereto as Exhibit K to Annex II .

 

 

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      §6. Amendment to Add a New Schedule 7.4 to Credit Agreement . A new Schedule 7.4 to the Credit Agreement is hereby added in its entirety in the form attached hereto as Schedule 7.4 to Annex II .

      §7. Reduction of the Revolving Credit Commitment . Notwithstanding the time period identified in §2.3 of the Credit Agreement which is hereby waived, the Borrower hereby gives notice to the Administrative Agent and the Revolving Credit Lenders, and the Administrative Agent and the Revolving Credit Lenders hereby acknowledge that, immediately following the effectiveness of this Amendment, the Total Revolving Credit Commitment shall be reduced by an amount equal to $55,000,000 from $75,000,000 to $20,000,000, and the Revolving Credit Commitments of the Revolving Credit Lenders shall be reduced pro rata in accordance with their respective Commitment Percentages thereof.

      §8. Conditions to Effectiveness . This Amendment shall become effective as of the date set forth above upon the receipt by the Administrative Agent of the following items:

     (a) there shall exist no Default or Event of Default immediately prior to and immediately after giving effect to this Amendment; and

     (b) the Administrative Agent shall have received a counterpart signature page to this Amendment, duly executed and delivered by the Borrower, the Parent, each Guarantor and the Required Lenders; and

     (c) the Administrative Agent and the Lenders shall have received a legal opinion of Paul, Weiss, Rifkind, Wharton & Garrison LLP, counsel to the Borrower, the Parent and their respective Subsidiaries, which shall be in form, scope and substance satisfactory to the Administrative Agent and include, without limitation, an unqualified no conflicts opinion with respect to the Credit Agreement and Loan Documents; and

     (d) the Administrative Agent shall have received a Compliance Certificate in the form of Exhibit E to the amended Credit Agreement attached in Annex II hereto, which attaches a schedule in form and detail reasonably satisfactory to the Administrative Agent of Consolidated Net Income, Consolidated EBITDA, Liquidity and minimum Consolidated EBITDA, and other financial covenant-related calculations, each calculated pursuant to the applicable definitions set forth in the Credit Agreement attached as Annex I hereto and as of the date hereof (provided that with respect to Consolidated EBITDA and Consolidated Net Income, such calculation shall be for the Reference Period ending on the last day of the most recently completed fiscal quarter of the Parent for which financial statements have been delivered) in each case demonstrating compliance with the applicable financial covenants set forth in §11 of the Credit Agreement as set forth in Annex I hereto (provided that with respect to compliance with (A) §11.3 of the Credit Agreement, the calculations shall demonstrate that the Borrower has not less than $5,000,000 of Liquidity as of the date of the Second Amendment and (B) §11.4 of the Credit Agreement, the calculations shall demonstrate that Consolidated EBITDA shall be equal to or greater than $22,800,000), prepared by the principal financial or accounting officer of the Borrower; and

     (e) the representations and warranties set forth in §10 of this Amendment shall be true and correct as of the date of this Amendment; and

 

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     (f) the Administrative Agent shall have received, in form and substance acceptable to it, all resolutions, incumbency certificates, certificates of no default, and such other certificates and documents as reasonably requested by the Administrative Agent; and

     (g) the Administrative Agent shall have received, for the pro rata account of the Lenders timely executing and delivering a signature page to this Amendment, an amendment fee equal to fifty basis points (0.50%) of the Revolving Credit Commitment (as reduced hereby) of, and outstanding principal amount of the Tranche B Term Loan held by, each such Lender; and

     (h) the Administrative Agent shall have received, for the pro rata account of the Revolving Credit Lenders, any Commitment Fees then accrued on the amount of the Total Revolving Credit Commitment to be reduced immediately following the effectiveness of this Amendment as provided in §8 hereof in accordance with §2.3 of the Credit Agreement; and

     (i) the Administrative Agent shall have received satisfactory evidence of the compliance by the Borrower with §12.10 of the Credit Agreement; and

     (j) the Administrative Agent shall have received all other fees and expenses due and owing in connection with this Amendment; and

     (k) at the request of the Administrative Agent, (i) confirmations and affirmations of the Borrower, the Parent and the Subsidiaries (and Excluded Subsidiaries, where applicable) with respect to the Loan Documents, including, without limitation, the Security Documents and (ii) updated schedules and annexes to the Security Documents; and

     (l) the Borrower shall have paid all reasonable unpaid fees and expenses of the Administrative Agent’s counsel, Winstead PC, to the extent that copies of invoices for such fees and expenses have been delivered to the Borrower.

      §9. Affirmation of Borrower and Parent . The Borrower and the Parent each hereby affirms its Obligations under the Credit Agreement and under each of the other Loan Documents to which each is a party and each hereby affirms its absolute and unconditional promise to pay to the Lenders the Loans and all other amounts due under the Credit Agreement (as amended hereby) and the other Loan Documents.

      §10. Representations and Warranties . The Parent and the Borrower each hereby represents and warrants to the Administrative Agent and the Lenders as follows:

     (a)  Representations and Warranties . Each of the representations and warranties contained in §8 of the Credit Agreement were true and correct in all material respects (except to the extent such representations and warranties are already qualified by materiality, in which case, such representations and warranties were true and correct in all respects) when made, and, after giving effect to this Amendment, are true and correct in all material respects on and as of the date hereof (except to the extent such representations and warranties are already qualified by materiality, in which case, such representations and warranties are true and correct in all respects), except to the extent of changes resulting from transactions contemplated or permitted by the Credit Agreement and the other Loan Documents and to the extent that such representations and warranties relate specifically to a prior date.

 

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     (b)  Enforceability . The execution and delivery by the Borrower and the Parent of this Amendment, and the performance by the Borrower and the Parent of this Amendment and the Credit Agreement, as amended hereby, are within the corporate authority of each of the Borrower and the Parent and have been duly authorized by all necessary corporate proceedings. This Amendment and the Credit Agreement, as amended hereby, constitute valid and legally binding obligations of each of the Borrower and the Parent, enforceable against it in accordance with their terms, except as limited by bankruptcy, insolvency, reorganization, moratorium or similar laws relating to or affecting the enforcement of creditors’ rights in general.

     (c)  No Default or Event of Default . No Default or Event of Default has occurred and is continuing, and after giving effect to this Amendment, no Default or Event of Default will result from the execution, delivery and performance by the Parent and the Borrower of this Amendment or from the consummation of the transactions contemplated herein.

     (d)  Disclosure . None of the information provided to the Administrative Agent and the Lenders on or prior to the date of the Second Amendment relating to this Amendment contained any untrue statement of material fact or omitted to state any material fact (known to the Parent, the Borrower or any of its Subsidiaries in the case of any document or information not furnished by it or any of its Subsidiaries) necessary in order to make the statements herein or therein not misleading. On the date hereof, neither the Borrower nor the Parent possess any material information with respect to the operations, business, assets, properties, liabilities (actual or contingent) or financial condition of the Parent, the Borrower and their respective Subsidiaries taken as a whole as to which the Lenders do not have access.

      §11. No Other Amendments, etc. Except as expressly provided in this Amendment, (a) all of the terms and conditions of the Credit Agreement and the other Loan Documents remain unchanged, and (b) all of the terms and conditions of the Credit Agreement, as amended hereby, and of the other Loan Documents are hereby ratified and confirmed and remain in full force and effect. Nothing herein shall be construed to be an amendment, consent or a waiver of any requirements of the Parent, the Borrower or of any other Person under the Credit Agreement or any of the other Loan Documents except as expressly set forth herein. Nothing in this Amendment shall be construed to imply any willingness on the part of the Administrative Agent or any Lender to grant any similar or future amendment, consent or waiver of any of the terms and conditions of the Credit Agreement or the other Loan Documents.

      §12. Release . In order to induce the Administrative Agent and the Lenders to enter into this Amendment, the Borrower and the Parent each acknowledges and agrees that: (i) the Borrower and the Parent do not have any claim or cause of action against the Administrative Agent or any Lender (or any of their respective directors, officers, employees or agents); (ii) the Borrower and the Parent do not have any offset right, counterclaim, right of recoupment or any defense of any kind against the Borrower’s or the Parent’s obligations, indebtedness or liabilities to the Administrative Agent or any Lender; and (iii) each of the Administrative Agent and the Lenders has heretofore properly performed and satisfied in a timely manner all of its obligations to the Borrower and the Parent. The Borrower and the Parent each wishes to eliminate any possibility that any past conditions, acts, omissions, events, circumstances or matters would impair or otherwise adversely affect any of the Administrative Agent’s and the Lenders’ rights, interests, contracts, collateral security or remedies. Therefore, the Borrower and the Parent each unconditionally releases, waives and forever discharges (A) any and all liabilities, obligations,

 

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duties, promises or indebtedness of any kind of the Administrative Agent or any Lender to the Borrower, except the obligations to be performed by the Administrative Agent or any Lender on or after the date hereof as expressly stated in this Amendment, the Credit Agreement and the other Loan Documents, and (B) all claims, offsets, causes of action, right of recoupment, suits or defenses of any kind whatsoever (if any), whether arising at law or in equity, whether known or unknown, which the Borrower or the Parent might otherwise have against the Administrative Agent, any Lender or any of their respective directors, officers, employees or agents, in either case (A) or (B), on account of any past or presently existing condition, act, omission, event, contract, liability, obligation, indebtedness, claim, cause of action, defense, circumstance or matter of any kind.

      §13. Execution in Counterparts . This Amendment may be executed in any number of counterparts and by each party on a separate counterpart, each of which when so executed and delivered shall be an original, but all of which together shall constitute one instrument. In proving this Amendment, it shall not be necessary to produce or account for more than one such counterpart signed by the party against whom enforcement is sought.

      §14. Interpretation . This Amendment, the Credit Agreement and the other Loan Documents are the result of negotiation among, and have been reviewed by counsel to, among others, the Administrative Agent and the Borrower and are the product of discussions and negotiations among all parties. Accordingly, this Amendment, Credit Agreement and the other Loan Documents are not intended to be construed against the Administrative Agent or any of the Lenders merely on account of the Administrative Agent’s or any Lender’s involvement in the preparation of such documents.

      §15. Loan Document . This Amendment is a Loan Document under the terms of the Credit Agreement, and any breach of any provision of this Amendment shall be a Default or Event of Default under the Credit Agreement (as applicable).

      §16. Miscellaneous . This Amendment shall for all purposes be construed in accordance with and governed by the laws of the State of New York (excluding the laws applicable to conflicts or choice of law) (other than Section 5-1401 and Section 5-1402 of the General Obligations Laws of the State of New York). The captions in this Amendment are for convenience of reference only and shall not define or limit the provisions hereof. The Borrower agrees to pay to the Administrative Agent, on demand by the Administrative Agent, all reasonable costs and expenses incurred or sustained by the Administrative Agent in connection with the preparation of this Amendment, including reasonable legal fees in accordance with §18.2 of the Credit Agreement.

[Remainder of Page Intentionally Left Blank]

 

      IN WITNESS WHEREOF , the undersigned have duly executed this Amendment as a sealed instrument as of the date first set forth above.

 

 

 

 

 

 

The Borrower :

EMMIS OPERATING COMPANY
 

 

 

By:  

 

 

 

 

Name:  

J. Scott Enright 

 

 

 

Title:  

Executive Vice President and General Counsel 

 

 

 

The Parent :

EMMIS COMMUNICATIONS
CORPORATION
 

 

 

By:  

 

 

 

 

Name:  

J. Scott Enright 

 

 

 

Title:  

Executive Vice President and General Counsel 

 

 

[Signature Page to Second Amendment to Amended and Restated
Revolving Credit and Term Loan Agreement]

 

 

 

 

 

 

 

 

The Administrative Agent :

BANK OF AMERICA, N.A. ,
as Administrative Agent
 

 

 

By:  

 

 

 

 

Name:  

 

 

 

 

Title:  

 

 

 

 

The Lenders :

BANK OF AMERICA, N.A. ,
as a Lender
 

 

 

By:  

 

 

 

 

Name:  

 

 

 

 

Title:  

 

 

 

[Signature Page to Second Amendment to Amended and Restated
Revolving Credit and Term Loan Agreement]

 

 

 

 

 

 

 

 

The Lenders :

[Other Lenders] , as a Lender
 

 

 

By:  

 

 

 

 

Name:  

 

 

 

 

Title:  

 

 

 

[Signature Page to Second Amendment to Amended and Restated
Revolving Credit and Term Loan Agreement]

 

 

RATIFICATION OF GUARANTORS

     Each of the undersigned Guarantors hereby (a) acknowledges and consents to the foregoing Amendment and the Borrower’s and the Parent’s execution thereof; (b) joins the foregoing Amendment for the sole purpose of consenting to and being bound by the provisions of Sections 9, 11 and 12 thereof, (c) ratifies and confirms all of their respective obligations and liabilities under the Loan Documents to which any of them is a party and ratifies and confirms that such obligations and liabilities extend to and continue in effect with respect to, and continue to guarantee and secure, as applicable, the Obligations of the Borrower under the Credit Agreement; (d) acknowledges and confirms that the liens and security interests granted by such Guarantor pursuant to the Loan Documents are and continue to be valid and perfected first priority liens and security interests (subject only to Permitted Liens) that secure all of the Obligations on and after the date hereof; (e) acknowledges and agrees that such Guarantor does not have any claim or cause of action against the Administrative Agent or any Lender (or any of its respective directors, officers, employees or agents); and (f) acknowledges, affirms and agrees that such Guarantor does not have any defense, claim, cause of action, counterclaim, offset or right of recoupment of any kind or nature against any of their respective obligations, indebtedness or liabilities to the Administrative Agent or any Lender.

 

 

 

 

 

 

The Guarantors :

EMMIS COMMUNICATIONS CORPORATION
EMMIS INDIANA BROADCASTING, L.P. , by
Emmis Operating Company, its General Partner
EMMIS INTERNATIONAL BROADCASTING
CORPORATION
EMMIS LICENSE CORPORATION OF NEW
YORK
EMMIS MEADOWLANDS CORPORATION
EMMIS PUBLISHING CORPORATION
EMMIS PUBLISHING, L.P. , by Emmis
Operating Company, its General Partner
EMMIS RADIO, LLC , by Emmis Operating
Company, its Manager
 

 

 

By:  

 

 

 

 

Name:  

J. Scott Enright 

 

 

 

Title:  

Executive Vice President and General Counsel 

 

 

[Signature Page to Second Amendment to Amended and Restated
Revolving Credit and Term Loan Agreement]

 

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The Guarantors (cont) :

EMMIS RADIO LICENSE CORPORATION
OF NEW YORK
EMMIS RADIO LICENSE, LLC , by Emmis
Operating Company, its Manager
EMMIS TELEVISION LICENSE, LLC , by
Emmis Operating Company, its Manager
EMMIS TELEVISION BROADCASTING, L.P. ,
by Emmis Operating Company, its General
Partner
LOS ANGELES MAGAZINE HOLDING
COMPANY, INC.
MEDIATEX COMMUNICATIONS
CORPORATION
ORANGE COAST KOMMUNICATIONS, INC.
 

 

 

By:  

 

 

 

 

Name:  

J. Scott Enright 

 

 

 

Title:  

Executive Vice President and General Counsel 

 

 

[Signature Page to Second Amendment to Amended and Restated
Revolving Credit and Term Loan Agreement]

 

ANNEX I TO THE SECOND AMENDMENT

Published CUSIP Number: 29153EAA1

AMENDED AND RESTATED
REVOLVING CREDIT AND TERM LOAN AGREEMENT

Dated as of November 2, 2006

among

EMMIS OPERATING COMPANY,
as Borrower

EMMIS COMMUNICATIONS CORPORATION,
as Parent

THE LENDERS LISTED ON SCHEDULE 1 HERETO

BANK OF AMERICA, N.A.,
as Administrative Agent,

DEUTSCHE BANK TRUST COMPANY AMERICAS,
as Syndication Agent

GENERAL ELECTRIC CAPITAL CORPORATION,
COÖPERATIEVE CENTRALE RAIFFEISEN-BOERENLEENBANK B.A.,
“RABOBANK NEDERLAND”, NEW YORK BRANCH and
SUNTRUST BANK,
as Co-Documentation Agents,

and

BANC OF AMERICA SECURITIES LLC,
DEUTSCHE BANK SECURITIES INC.,
as Joint Lead Arrangers and Joint Book Managers

 

 

TABLE OF CONTENTS

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Page

 

 

 

 

 

 

 

 

 

 

 

1.

 

DEFINITIONS AND RULES OF INTERPRETATION

 

 

1

 

 

 

1.1.

 

Definitions

 

 

1

 

 

 

1.2.

 

Rules of Interpretation

 

 

42

 

 

 

 

 

 

 

 

 

 

 

 

2.

 

THE REVOLVING CREDIT FACILITY

 

 

43

 

 

 

2.1.

 

Commitment to Lend

 

 

43

 

 

 

2.2.

 

Commitment Fee

 

 

44

 

 

 

2.3.

 

Reduction of Revolving Credit Commitment

 

 

44

 

 

 

2.4.

 

Evidence of Revolving Credit Loans; Revolving Credit Notes

 

 

44

 

 

 

2.5.

 

Interest on Revolving Credit Loans

 

 

45

 

 

 

2.6.

 

Requests for Revolving Credit Loans

 

 

45

 

 

 

2.7.

 

Conversion Options

 

 

46

 

 

 

 

 

2.7.1.

 

Conversion to Different Type of Revolving Credit Loan

 

 

46

 

 

 

 

 

2.7.2.

 

Continuation of Type of Revolving Credit Loan

 

 

46

 

 

 

 

 

2.7.3.

 

Eurodollar Rate Loans

 

 

46

 

 

 

2.8.

 

Funds for Revolving Credit Loans

 

 

47

 

 

 

 

 

2.8.1.

 

Funding Procedures

 

 

47

 

 

 

 

 

2.8.2.

 

Advances by Administrative Agent

 

 

47

 

 

 

2.9.

 

Settlements

 

 

48

 

 

 

 

 

2.9.1.

 

General

 

 

48

 

 

 

 

 

2.9.2.

 

Failure to Make Funds Available

 

 

49

 

 

 

 

 

2.9.3.

 

No Effect on Other Revolving Credit Lenders

 

 

49

 

 

 

2.10.

 

Repayment Of The Revolving Credit Loans

 

 

50

 

 

 

 

 

2.10.1.

 

Maturity

 

 

50

 

 

 

 

 

2.10.2.

 

Mandatory Repayments of Revolving Credit Loans

 

 

50

 

 

 

 

 

2.10.3.

 

Optional Repayments of Revolving Credit Loans

 

 

50

 

 

 

 

 

 

 

 

 

 

 

 

3.

 

THE TRANCHE B TERM LOAN

 

 

51

 

 

 

3.1.

 

Commitment to Lend

 

 

51

 

 

 

3.2.

 

Evidence of Tranche B Term Loan; Tranche B Term Notes

 

 

51

 

 

 

3.3.

 

Mandatory Prepayment of Tranche B Term Loan; Scheduled Amortization

 

 

52

 

 

 

3.4.

 

Optional Prepayment of Tranche B Term Loan

 

 

52

 

i

 

TABLE OF CONTENTS

(continued)

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Page

 

 

 

 

 

 

 

 

 

 

 

 

 

3.5.

 

Interest on Tranche B Term Loan

 

 

52

 

 

 

 

 

3.5.1.

 

Interest Rates

 

 

52

 

 

 

 

 

3.5.2.

 

Notification by Borrower

 

 

53

 

 

 

 

 

3.5.3.

 

Amounts, etc.

 

 

53

 

 

 

 

 

 

 

 

 

 

 

 

4.

 

MANDATORY REPAYMENT OF THE LOANS

 

 

53

 

 

 

4.1.

 

Excess Cash Flow Recapture

 

 

53

 

 

 

4.2.

 

Proceeds of Asset Sales and Asset Swaps; Etc.

 

 

54

 

 

 

4.3.

 

Proceeds of Equity Issuances

 

 

55

 

 

 

4.4.

 

Proceeds of Issuances of Indebtedness

 

 

57

 

 

 

4.5.

 

Proceeds of Extraordinary Receipts

 

 

58

 

 

 

4.6.

 

Application of Payments

 

 

58

 

 

 

4.7.

 

Delivery of Proceeds

 

 

59

 

 

 

 

 

 

 

 

 

 

 

 

5.

 

LETTERS OF CREDIT

 

 

59

 

 

 

5.1.

 

Letter of Credit Commitments

 

 

59

 

 

 

 

 

5.1.1.

 

Commitment to Issue Letters of Credit

 

 

59

 

 

 

 

 

5.1.2.

 

Letter of Credit Applications

 

 

61

 

 

 

 

 

5.1.3.

 

Terms of Letters of Credit

 

 

61

 

 

 

 

 

5.1.4.

 

Reimbursement Obligations of Revolving Credit Lenders

 

 

61

 

 

 

 

 

5.1.5.

 

Participations of Revolving Credit Lenders

 

 

61

 

 

 

5.2.

 

Reimbursement Obligation of the Borrower

 

 

62

 

 

 

5.3.

 

Letter of Credit Payments

 

 

62

 

 

 

5.4.

 

Obligations Absolute

 

 

63

 

 

 

5.5.

 

Reliance by Issuer

 

 

64

 

 

 

5.6.

 

Letter of Credit Fee

 

 

64

 

 

 

5.7.

 

Existing Letters of Credit

 

 

64

 

 

 

 

 

 

 

 

 

 

 

 

6.

 

CERTAIN GENERAL PROVISIONS

 

 

64

 

 

 

6.1.

 

Closing Fees

 

 

64

 

 

 

6.2.

 

Administrative Agent’s Fee

 

 

65

 

 

 

6.3.

 

Funds for Payments

 

 

65

 

 

 

 

 

6.3.1.

 

Payments to Administrative Agent

 

 

65

 

ii

 

TABLE OF CONTENTS

(continued)

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Page

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

6.3.2.

 

No Offset, etc.

 

 

65

 

 

 

 

 

6.3.3.

 

Non-U.S. Lenders

 

 

66

 

 

 

6.4.

 

Computations

 

 

67

 

 

 

6.5.

 

Inability to Determine Eurodollar Rate

 

 

67

 

 

 

6.6.

 

Illegality

 

 

67

 

 

 

6.7.

 

Additional Costs, etc.

 

 

68

 

 

 

6.8.

 

Capital Adequacy

 

 

69

 

 

 

6.9.

 

Certificate

 

 

70

 

 

 

6.10.

 

Indemnity

 

 

70

 

 

 

6.11.

 

Interest After Default

 

 

70

 

 

 

6.12.

 

Mitigation Obligations; Replacement of Lenders

 

 

70

 

 

 

 

 

 

 

 

 

 

 

 

7.

 

COLLATERAL SECURITY AND GUARANTIES

 

 

71

 

 

 

7.1.

 

Security of Borrower

 

 

71

 

 

 

7.2.

 

Guaranties and Security of Parent and Subsidiaries

 

 

72

 

 

 

7.3.

 

Release of Collateral and Guaranties

 

 

72

 

 

 

7.4.

 

Post Second Amendment Effective Date Collateral Requirements

 

 

72

 

 

 

7.5.

 

Issuance of Replacement Equity Instruments

 

 

74

 

 

 

7.6.

 

Other Post-Second Amendment Effective Date Requirements

 

 

75

 

 

 

 

 

 

 

 

 

 

 

 

8.

 

REPRESENTATIONS AND WARRANTIES

 

 

75

 

 

 

8.1.

 

Corporate Authority

 

 

75

 

 

 

 

 

8.1.1.

 

Incorporation; Good Standing

 

 

75

 

 

 

 

 

8.1.2.

 

Authorization

 

 

76

 

 

 

 

 

8.1.3.

 

Enforceability

 

 

76

 

 

 

8.2.

 

Governmental Approvals

 

 

76

 

 

 

8.3.

 

Title to Properties

 

 

76

 

 

 

8.4.

 

Financial Statements and Projections

 

 

77

 

 

 

 

 

8.4.1.

 

Fiscal Year

 

 

77

 

 

 

 

 

8.4.2.

 

Financial Statements

 

 

77

 

 

 

 

 

8.4.3.

 

Projections

 

 

77

 

 

 

8.5.

 

No Material Adverse Changes, etc.

 

 

78

 

iii

 

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(continued)

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Page

 

 

 

 

 

 

 

 

 

 

 

 

 

8.6.

 

Franchises, Patents, Copyrights, etc.

 

 

78

 

 

 

8.7.

 

Litigation

 

 

78

 

 

 

8.8.

 

No Materially Adverse Contracts, etc.

 

 

78

 

 

 

8.9.

 

Compliance with Other Instruments, Laws, Status as Senior Debt, etc.

 

 

78

 

 

 

8.10.

 

Tax Status

 

 

78

 

 

 

8.11.

 

No Event of Default

 

 

79

 

 

 

8.12.

 

Investment Company Acts and Communications Act

 

 

79

 

 

 

8.13.

 

Absence of Financing Statements, etc.

 

 

79

 

 

 

8.14.

 

Perfection of Security Interest

 

 

79

 

 

 

8.15.

 

Certain Transactions

 

 

80

 

 

 

8.16.

 

Employee Benefit Plans

 

 

80

 

 

 

 

 

8.16.1.

 

In General

 

 

80

 

 

 

 

 

8.16.2.

 

Terminability of Welfare Plans

 

 

80

 

 

 

 

 

8.16.3.

 

Guaranteed Pension Plans

 

 

80

 

 

 

 

 

8.16.4.

 

Multiemployer Plans

 

 

81

 

 

 

8.17.

 

Use of Proceeds

 

 

81

 

 

 

 

 

8.17.1.

 

General

 

 

81

 

 

 

 

 

8.17.2.

 

Regulation U

 

 

81

 

 

 

 

 

8.17.3.

 

Ineligible Securities

 

 

81

 

 

 

8.18.

 

Environmental Compliance

 

 

81

 

 

 

8.19.

 

Subsidiaries, etc.

 

 

83

 

 

 

8.20.

 

Disclosure

 

 

83

 

 

 

8.21.

 

Licenses and Approvals

 

 

84

 

 

 

8.22.

 

Material Agreements

 

 

85

 

 

 

8.23.

 

Solvency

 

 

86

 

 

 

8.24.

 

Excluded Subsidiaries

 

 

86

 

 

 

 

 

 

 

 

 

 

 

 

9.

 

AFFIRMATIVE COVENANTS

 

 

86

 

 

 

9.1.

 

Punctual Payment

 

 

86

 

 

 

9.2.

 

Maintenance of Office

 

 

86

 

 

 

9.3.

 

Records and Accounts

 

 

86

 

iv

 

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(continued)

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Page

 

 

 

 

 

 

 

 

 

 

 

 

 

9.4.

 

Financial Statements, Certificates and Information

 

 

87

 

 

 

9.5.

 

Notices and Other Information

 

 

89

 

 

 

 

 

9.5.1.

 

Defaults

 

 

89

 

 

 

 

 

9.5.2.

 

Environmental Events

 

 

89

 

 

 

 

 

9.5.3.

 

Notification of Claim against Collateral

 

 

89

 

 

 

 

 

9.5.4.

 

Notice of Litigation and Judgments

 

 

89

 

 

 

 

 

9.5.5.

 

Notice of SEC Filings, etc.

 

 

90

 

 

 

 

 

9.5.6.

 

Distribution of Materials

 

 

90

 

 

 

 

 

9.5.7.

 

Foreign Subsidiaries

 

 

90

 

 

 

9.6.

 

Legal Existence; Conduct of Business; Maintenance of Properties

 

 

91

 

 

 

9.7.

 

Insurance

 

 

91

 

 

 

9.8.

 

Taxes

 

 

92

 

 

 

9.9.

 

Inspection of Properties and Books, etc.

 

 

92

 

 

 

 

 

9.9.1.

 

General

 

 

92

 

 

 

 

 

9.9.2.

 

Appraisals

 

 

92

 

 

 

 

 

9.9.3.

 

Communications with Accountants

 

 

92

 

 

 

9.10.

 

Compliance with Laws, Contracts, Licenses, and Permits

 

 

93

 

 

 

9.11.

 

Employee Benefit Plans

 

 

94

 

 

 

9.12.

 

Use of Proceeds

 

 

94

 

 

 

9.13.

 

Additional Collateral

 

 

94

 

 

 

9.14.

 

Interest Rate Protection

 

 

95

 

 

 

9.15.

 

Additional Subsidiaries

 

 

96

 

 

 

9.16.

 

Further Assurances

 

 

97

 

 

 

9.17.

 

Bridge to Sale Transactions Generally

 

 

97

 

 

 

 

 

 

 

 

 

 

 

 

10.

 

CERTAIN NEGATIVE COVENANTS

 

 

100

 

 

 

10.1.

 

Restrictions on Indebtedness

 

 

100

 

 

 

10.2.

 

Restrictions on Liens

 

 

102

 

 

 

 

 

10.2.1.

 

Permitted Liens

 

 

102

 

 

 

 

 

10.2.2.

 

Restrictions on Negative Pledges and Upstream Limitations

 

 

104

 

 

 

10.3.

 

Restrictions on Investments

 

 

105

 

v

 

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(continued)

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Page

 

 

 

 

 

 

 

 

 

 

 

 

 

10.4.

 

Restricted Payments

 

 

107

 

 

 

10.5.

 

Merger, Consolidation, Acquisition and Disposition of Assets

 

 

109

 

 

 

 

 

10.5.1.

 

Mergers and Acquisitions

 

 

109

 

 

 

 

 

10.5.2.

 

Disposition of Assets

 

 

112

 

 

 

10.6.

 

Sale and Leaseback; LMA Agreements

 

 

114

 

 

 

10.7.

 

Compliance with Environmental Laws

 

 

116

 

 

 

10.8.

 

Subordinated Debt; Permitted Parent Indebtedness

 

 

116

 

 

 

10.9.

 

Employee Benefit Plans

 

 

117

 

 

 

10.10.

 

Fiscal Year

 

 

117

 

 

 

10.11.

 

Transactions with Affiliates

 

 

117

 

 

 

10.12.

 

Certain Intercompany Matters

 

 

118

 

 

 

10.13.

 

Activities and Indebtedness of the Parent

 

 

119

 

 

 

 

 

10.13.1.

 

Activities of Parent

 

 

119

 

 

 

 

 

10.13.2.

 

Permitted Parent Indebtedness, Interest Payments; Etc.

 

 

119

 

 

 

10.14.

 

Restrictions on Equity Issuances

 

 

120

 

 

 

10.15.

 

Bridge to Sale Transactions Generally

 

 

121

 

 

 

10.16.

 

Debt Repurchases

 

 

122

 

 

 

10.17.

 

Restrictions on Excluded Subsidiaries

 

 

126

 

 

 

 

 

 

 

 

 

 

 

 

11.

 

FINANCIAL COVENANTS

 

 

126

 

 

 

11.1.

 

Total Leverage Ratio

 

 

126

 

 

 

11.2.

 

Fixed Charge Coverage Ratio

 

 

127

 

 

 

11.3.

 

Minimum Liquidity

 

 

127

 

 

 

11.4.

 

Minimum Consolidated EBITDA

 

 

127

 

 

 

 

 

 

 

 

 

 

 

 

12.

 

CLOSING CONDITIONS

 

 

127

 

 

 

12.1.

 

Loan Documents

 

 

127

 

 

 

12.2.

 

Certified Copies of Governing Documents

 

 

128

 

 

 

12.3.

 

Corporate or Other Action

 

 

128

 

 

 

12.4.

 

Officer’s Certificates

 

 

128

 

 

 

12.5.

 

Validity of Liens

 

 

128

 

 

 

12.6.

 

Perfection Certificates and UCC Search Results

 

 

128

 

vi

 

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(continued)

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Page

 

 

 

 

 

 

 

 

 

 

 

 

 

12.7.

 

Date Down Endorsements to Title Insurance

 

 

129

 

 

 

12.8.

 

Financial Statements

 

 

129

 

 

 

12.9.

 

FCC Licenses; Third Party Consents

 

 

129

 

 

 

12.10.

 

Certificates of Insurance

 

 

129

 

 

 

12.11.

 

Opinions of Counsel

 

 

130

 

 

 

12.12.

 

Compliance Certificate

 

 

130

 

 

 

12.13.

 

[Intentionally Omitted]

 

 

130

 

 

 

12.14.

 

Financial Condition

 

 

130

 

 

 

12.15.

 

Payment of Fees; Administrative Agent Fee Letter

 

 

130

 

 

 

12.16.

 

Disbursement Instructions

 

 

130

 

 

 

12.17.

 

Sources and Uses of Cash

 

 

130

 

 

 

12.18.

 

Accountant’s Letter

 

 

131

 

 

 

 

 

 

 

 

 

 

 

 

13.

 

CONDITIONS TO ALL BORROWINGS

 

 

131

 

 

 

13.1.

 

Representations True; No Event of Default

 

 

131

 

 

 

13.2.

 

No Legal Impediment

 

 

131

 

 

 

13.3.

 

Proceedings and Documents

 

 

131

 

 

 

13.4.

 

Liquidity/Leverage Compliance

 

 

132

 

 

 

 

 

 

 

 

 

 

 

 

14.

 

EVENTS OF DEFAULT; ACCELERATION; ETC.

 

 

132

 

 

 

14.1.

 

Events of Default and Acceleration

 

 

132

 

 

 

14.2.

 

Termination of Commitments

 

 

138

 

 

 

14.3.

 

Remedies

 

 

138

 

 

 

14.4.

 

Distribution of Collateral Proceeds

 

 

139

 

 

 

 

 

 

 

 

 

 

 

 

15.

 

ADDITIONAL FINANCING

 

 

139

 

 

 

15.1.

 

Commitment Amount

 

 

139

 

 

 

15.2.

 

Evidence of Debt

 

 

141

 

 

 

15.3.

 

Availability

 

 

142

 

 

 

 

 

 

 

 

 

 

 

 

16.

 

THE ADMINISTRATIVE AGENT

 

 

142

 

 

 

16.1.

 

Appointment and Authority

 

 

142

 

 

 

16.2.

 

Rights as a Lender

 

 

142

 

 

 

16.3.

 

Exculpatory Provisions

 

 

142

 

vii

 

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Page

 

 

 

 

 

 

 

 

 

 

 

 

 

16.4.

 

Reliance by Administrative Agent

 

 

143

 

 

 

 

 

16.4.1.

 

General

 

 

143

 

 

 

 

 

16.4.2.

 

Non-Reliance on Administrative Agent and Other Lenders

 

 

144

 

 

 

 

 

16.4.3.

 

Delegation of Duties

 

 

144

 

 

 

16.5.

 

Payments

 

 

144

 

 

 

 

 

16.5.1.

 

Payments to Administrative Agent

 

 

144

 

 

 

 

 

16.5.2.

 

Distribution by Administrative Agent

 

 

144

 

 

 

 

 

16.5.3.

 

Delinquent Lenders

 

 

145

 

 

 

16.6.

 

Reimbursement by Lenders

 

 

145

 

 

 

16.7.

 

Resignation of Administrative Agent

 

 

146

 

 

 

16.8.

 

Administrative Agent May File Proofs of Claim

 

 

147

 

 

 

16.9.

 

No Other Duties, Etc.

 

 

148

 

 

 

 

 

 

 

 

 

 

 

 

17.

 

ASSIGNMENT AND PARTICIPATION

 

 

148

 

 

 

17.1.

 

Successors and Assigns; Conditions to Assignment

 

 

148

 

 

 

17.2.

 

Register

 

 

151

 

 

 

17.3.

 

Participations

 

 

151

 

 

 

17.4.

 

Miscellaneous Assignment Provisions

 

 

152

 

 

 

17.5.

 

Electronic Execution of Assignments

 

 

152

 

 

 

 

 

 

 

 

 

 

 

 

18.

 

PROVISIONS OF GENERAL APPLICATIONS

 

 

152

 

 

 

18.1.

 

Setoff

 

 

152

 

 

 

18.2.

 

Expenses

 

 

153

 

 

 

18.3.

 

Indemnification

 

 

154

 

 

 

18.4.

 

Treatment of Certain Confidential Information

 

 

155

 

 

 

 

 

18.4.1.

 

Confidentiality

 

 

155

 

 

 

 

 

18.4.2.

 

Prior Notification

 

 

156

 

 

 

 

 

18.4.3.

 

Other

 

 

156

 

 

 

18.5.

 

Survival of Covenants, Etc

 

 

156

 

 

 

18.6.

 

Notices

 

 

157

 

 

 

18.7.

 

Electronic Communications

 

 

158

 

 

 

18.8.

 

Governing Law

 

 

159

 

viii

 

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(continued)

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Page

 

 

 

 

 

 

 

 

 

 

 

 

 

18.9.

 

Headings

 

 

160

 

 

 

18.10.

 

Counterparts

 

 

160

 

 

 

18.11.

 

Entire Agreement, Etc.

 

 

160

 

 

 

18.12.

 

WAIVER OF JURY TRIAL

 

 

160

 

 

 

18.13.

 

Consents, Amendments, Waivers, Etc.

 

 

161

 

 

 

18.14.

 

Severability

 

 

164

 

 

 

18.15.

 

USA PATRIOT Act Notice

 

 

164

 

 

 

18.16.

 

No Advisory or Fiduciary Responsibility

 

 

164

 

 

 

 

 

 

 

 

 

 

 

 

19.

 

FCC APPROVAL

 

 

165

 

 

 

 

 

 

 

 

 

 

 

 

20.

 

TRANSITION ARRANGEMENTS

 

 

165

 

ix

 

Exhibits

 

 

 

Exhibit A

 

Form of Revolving Credit Note

Exhibit B

 

Form of Loan Request

Exhibit C

 

Form of Tranche B Term Note

Exhibit D

 

Projections

Exhibit E

 

Form of Compliance Certificate

Exhibit F

 

Form of Officer’s Certificate

Exhibit G

 

Form of Instrument of Accession

Exhibit H

 

Form of Assignment and Acceptance

Exhibit I

 

Form of U.S. Tax Compliance Certificate

Exhibit J

 

Dutch Auction Purchase Notice

Exhibit K

 

Dutch Auction Return Bid

Schedules

 

 

 

Schedule 1

 

Lenders and Commitments

Schedule 7.4

 

Real Property Owned by the Borrower and its Subsidiaries

Schedule 8.3(a)

 

Title to Properties

Schedule 8.3(b)

 

Stations

Schedule 8.5

 

Restricted Payments

Schedule 8.7

 

Litigation

Schedule 8.10

 

Tax Status

Schedule 8.18

 

Environmental Compliance

Schedule 8.19

 

Subsidiaries Etc

Schedule 8.21

 

FCC Licenses

Schedule 10.1

 

Existing Indebtedness

Schedule 10.2

 

Existing Liens

Schedule 10.3

 

Existing Investments

 

 

AMENDED AND RESTATED
REVOLVING CREDIT AND TERM LOAN AGREEMENT

     This AMENDED AND RESTATED REVOLVING CREDIT AND TERM LOAN AGREEMENT (this “ Credit Agreement ”) is made as of November 2, 2006 by and among (a) EMMIS OPERATING COMPANY (the “ Borrower ”), an Indiana corporation having its principal place of business at One Emmis Plaza, 40 Monument Circle, Suite 700, Indianapolis, Indiana 46204, (b) EMMIS COMMUNICATIONS CORPORATION (the “ Parent ”), an Indiana corporation having its principal place of business at One Emmis Plaza, 40 Monument Circle, Suite 700, Indianapolis, Indiana 46204, (c) the lending institutions listed on Schedule 1 (together with any institution that becomes a lender pursuant to §15 or §17, the “ Lenders ”), (d) BANK OF AMERICA, N.A. as administrative agent for the Lenders (in such capacity, the “ Administrative Agent ”), (e) DEUTSCHE BANK TRUST COMPANY AMERICAS , as syndication agent for the Lenders (in such capacity, the “ Syndication Agent ”), and (f) GENERAL ELECTRIC CAPITAL CORPORATION , COÖPERATIEVE CENTRALE RAIFFEISEN-BOERENLEENBANK B.A., “RABOBANK NEDERLAND”, NEW YORK BRANCH and SUNTRUST BANK , as co-documentation agents for the Lenders (in such capacity, each a “ Co-Documentation Agent ” and collectively, the “ Co-Documentation Agents ”).

1. DEFINITIONS AND RULES OF INTERPRETATION .

      1.1. Definitions . The following terms shall have the meanings set forth in this §1.1 or elsewhere in the provisions of this Credit Agreement referred to below:

      2006 Dividend . The special cash dividend payable to the holders of Common Stock authorized by the Parent on or about the Funding Date in an approximate aggregate amount of $150,000,000 and anticipated to be paid by the end of November 2006.

      Acceptable Price . See §10.16.(c).

      Administrative Agent . Bank of America, N.A., acting as administrative agent for the Lenders, or any other Person which has been appointed as the successor Administrative Agent in accordance with §16.8.

      Administrative Agent Fee Letter . That certain amended and restated fee letter dated of even date herewith between the Borrower and the Administrative Agent which supercedes that certain fee letter, dated October 10, 2006, by and among the Borrower, the Administrative Agent and Banc of America Securities LLC.

      Administrative Agent’s Fee . See §6.2.

      Administrative Agent’s Office . The Administrative Agent’s head office located at 901 Main Street, 14 th Floor, Dallas, Texas 75202-3714, or at such other location as the Administrative Agent may designate from time to time.

 

 

2

      Administrative Agent’s Special Counsel . Winstead PC or such other counsel as may be approved by the Administrative Agent.

      Affiliate . With respect to any Person, another Person that directly, or indirectly through one or more intermediaries, Controls or is Controlled by or is under common Control with the Person specified. “Control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of a Person, whether through the ability to exercise voting power, by contract or otherwise. “Controlling” and “Controlled” have meanings correlative thereto. Without limiting the generality of the foregoing, a Person (for purposes of this sentence, the “specified person”) shall be deemed to be Controlled by another Person if such other Person possesses, directly or indirectly, power to vote ten percent (10%) or more of the securities having ordinary voting power for the election of directors, managing general partners or the equivalent of the specified person.

      Agents . Collectively, the Administrative Agent, the Syndication Agent and the Co-Documentation Agents.

      Applicable Discount . See §10.16.(c).

      Applicable Margin . For each Base Rate Loan, a per annum rate equal to 3.00%, and for each Eurodollar Rate Loan, a per annum rate equal to 4.00%. The foregoing shall in no way limit the rights of the Administrative Agent or the Lenders to exercise their rights to impose interest at the default rate as provided herein.

      Applicable Pension Legislation . At any time, any pension or retirement benefits legislation (be it national, federal, provincial, territorial or otherwise) then applicable to the Borrower or any of its Subsidiaries.

      Approved Bridge to Sale Transfer . A Bridge to Sale Transfer approved in writing by the Administrative Agent in its sole discretion and subject to the terms and conditions of this Credit Agreement.

      Approved Fund . Any Fund that is administered or managed by (a) a Lender, (b) an Affiliate of a Lender or (c) an entity or an Affiliate of an entity that administers or manages a Lender.

      Asset Sale . Any one or a series of related transactions (other than an Asset Swap) pursuant to which any of the Parent, the Borrower, any Subsidiary, the Austin Partnership or RAM, conveys, sells, leases, licenses or otherwise transfers or disposes of, directly or indirectly (including by means of a simultaneous exchange of Stations and any Bridge to Sale Transfer), any of its properties, businesses or assets (other than to the Borrower or any wholly-owned Subsidiary of the Borrower) (including the sale of the interest held by the Borrower or any of its Subsidiaries in the Austin Partnership or in RAM and the sale or issuance of Capital Stock of any Subsidiary other than to the Borrower or any wholly-owned Subsidiary of the Borrower) whether owned on the date hereof or thereafter acquired.

 

 

3

      Asset Swap . Any transfer of assets of any of the Borrower, any Subsidiary, the Austin Partnership or RAM to any Person other than the Parent, the Borrower or a wholly-owned Subsidiary of the Parent or the Borrower in exchange for assets of such Person if such exchange would qualify, whether in part or in full, as a like-kind exchange pursuant to §1031 of the Code. Nothing in this definition shall require the Parent, the Borrower, any Subsidiary, the Austin Partnership or RAM to elect that §1031 of the Code be applicable to any Asset Swap.

      Assignee Group . Two or more Eligible Assignees that are Affiliates of one another or two or more Approved Funds managed by the same investment advisor.

      Assignment and Acceptance . See §17.1(b).

      Attributable Indebtedness . On any date, (a) in respect of any Capitalized Lease of any Person, the capitalized amount thereof that would appear on a balance sheet of such Person prepared as of such date in accordance with GAAP, (b) in respect of any monetary obligation under any Synthetic Lease, the capitalized amount of the remaining lease or similar payments under the relevant lease or other applicable agreement or instrument that would appear on a balance sheet of such Person prepared as of such date in accordance with GAAP if such lease or other agreement or instrument were accounted for as a Capitalized Lease and (c) all Synthetic Debt of such Person.

      Austin Investment . The acquisition by the Borrower pursuant to the terms of the Sinclair Definitive Agreement of a 50.1% combined economic and controlling interest in the Austin Partnership and RAM, the sole general partner of the Austin Partnership.

      Austin Partnership . That certain Emmis Austin Radio Broadcasting Company, L.P. (formerly known as LBJS Broadcasting Company, L.P.), a Texas limited partnership, and of which RAM is the sole general partner, referred to in the Sinclair Definitive Agreement.

      Balance Sheet Date . February 28, 2006.

      Bank of America . Bank of America, N.A., a national banking association, in its individual capacity.

      Base Rate . For any day a fluctuating rate per annum equal to the highest of (a) the sum of 1/2 of 1% plus the Federal Funds Rate for such day, (b) the Prime Rate for such day and (c) the sum of (i) 1.00% plus (ii) the Eurodollar Rate (for an Interest Period of one month, determined in accordance with subsection (b) of the definition of Eurodollar Rate).

      Base Rate Loans . All or any portion of the Revolving Credit Loans and Tranche B Term Loan bearing interest calculated by reference to the Base Rate.

      Borrower . Emmis Operating Company, an Indiana corporation.

 

 

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      Borrower Materials . See §9.5.6.

      Bridge to Sale Excluded Subsidiary . A wholly-owned Excluded Subsidiary of the Borrower or any wholly-owned Subsidiary of the Borrower organized under the laws of any state of the United States or the District of Columbia and with respect to which the Borrower or such Subsidiary has granted to the Administrative Agent, for the benefit of the Lenders and the Administrative Agent, a first priority perfected security interest in the Capital Stock of such Excluded Subsidiary and has taken all other actions relating thereto to the reasonable satisfaction of the Administrative Agent.

      Bridge to Sale License Subsidiary . A wholly-owned subsidiary of a Bridge to Sale Excluded Subsidiary organized under the laws of any state of the United States or the District of Columbia and the sole asset of which subsidiary is the FCC License associated with the Station owned by such Bridge to Sale Excluded Subsidiary.

      Bridge to Sale Third Party Transaction . The sale of a Station (and the FCC License associated with such Station) by a Bridge to Sale Excluded Subsidiary and a Bridge to Sale License Subsidiary, on the one hand, to a non-Affiliate third party, on the other hand.

      Bridge to Sale Transaction Conditions . The satisfaction of the following conditions:

     (i) the sale of the applicable Station (and the FCC License associated with such Station) is consummated on an arm’s length basis to a non-Affiliate third party for fair and reasonable consideration; and

     (ii) none of the Parent, the Borrower, any of their Subsidiaries, any Bridge to Sale Excluded Subsidiary, any Bridge to Sale License Subsidiary or any Affiliate of any of the foregoing has made at any time during the twelve consecutive month period ending immediately prior to, or in connection with, the relevant Bridge to Sale Third Party Transaction, or, after giving effect to the relevant Bridge to Sale Third Party Transaction, will make, an Investment in such non-Affiliate third party purchaser or an Affiliate of such third party which in the aggregate with all such Investments is in excess of 25% of the total consideration received by the Borrower, any Subsidiary of the Borrower, any Bridge to Sale Excluded Subsidiary, any Bridge to Sale License Subsidiary or Affiliate of any of the foregoing in connection with such sale of the Station (and the FCC License associated with such Station), and any such Investment otherwise permitted hereunder shall be in the form of one or more promissory notes or any Capital Stock of such non-Affiliate third party purchaser or Affiliate of such third party received by the applicable Bridge to Sale Excluded Subsidiary and/or Bridge to Sale License Subsidiary as part of the consideration for the relevant Bridge to Sale Third Party Transaction and subject to the first priority security interest granted to the Administrative Agent pursuant to §9.17(b)(i); and

 

 

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     (iii) at least seventy-five percent (75%) of the consideration received by such Bridge to Sale Excluded Subsidiary, Bridge to Sale License Subsidiary or any other Affiliate of the Borrower (as applicable) is in the form of cash and is received upon the consummation of the sale of such Station (and the FCC License associated with such Station); and

     (iv) the Administrative Agent shall have received or will receive subject to the applicable grace periods permitted hereunder the collateral documents identified in §9.17(b)(i), together with all necessary consents relating thereto, all in form, scope and substance satisfactory to the Administrative Agent; and

     (v) such sale is consummated in accordance with the Bridge to Sale Transaction Documents.

      Bridge to Sale Transaction Documents . Collectively, (i) an asset sale agreement, put-call agreement or such other agreement (whether written or otherwise) pursuant to which, among other things, a Bridge to Sale Excluded Subsidiary and a Bridge to Sale License Subsidiary agrees to sell, transfer or otherwise dispose of the Station (and the FCC License associated with such Station) owned by such Person to a non-Affiliate third party and/or (ii) any LMA Agreement relating to such Station (including the FCC License associated with such Station), all in form, scope and substance satisfactory to the Administrative Agent.

      Bridge to Sale Transfer . The transfer by the Borrower or any of its Subsidiaries of a Station and the FCC License associated with such Station to one or more Excluded Subsidiaries, whether or not such transfer occurs prior to the effective date of the First Amendment.

      Business Day . Any day on which banking institutions in Dallas, Texas and New York, New York, are open for the transaction of banking business and, in the case of Eurodollar Rate Loans, also a day which is a Eurodollar Business Day.

      Capital Assets . Fixed assets, both tangible (such as land, buildings, fixtures, machinery and equipment) and intangible (such as patents, copyrights, trademarks, franchises and good will) to the extent such intangible assets have not been acquired in connection with a Permitted Acquisition; provided that Capital Assets shall not include any item customarily charged directly to expense or depreciated over a useful life of twelve (12) months or less in accordance with GAAP.

      Capital Expenditures . Amounts paid or Indebtedness incurred by the Borrower or any of its Subsidiaries in connection with (i) the purchase or lease by the Borrower or any of its Subsidiaries of Capital Assets that would be required to be capitalized and shown on the balance sheet of such Person in accordance with GAAP or (ii) the lease of any assets by the Borrower or any of its Subsidiaries as lessee under any Synthetic Lease to the extent that such assets would have been Capital Assets had the Synthetic Lease been treated for accounting purposes as a Capitalized Lease.

 

 

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      Capital Stock . Any and all shares, interests, participations or other equivalents (however designated) of capital stock of a corporation, any and all equivalent ownership or equity interests in a Person (other than a corporation) and any and all warrants, rights or options to purchase any of the foregoing.

      Capitalized Leases . Leases under which the Borrower or any of its Subsidiaries is the lessee or obligor, the discounted future rental payment obligations under which are required to be capitalized on the balance sheet of the lessee or obligor in accordance with GAAP.

      CERCLA . See §8.18(a).

      Change of Control . An event or series of events as a consequence of which (a) any “person” or “group” (as such terms are used in Section 13(d) and 14(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”)), excluding any Permitted Holder, shall become, or obtain rights (whether by means of warrants, options or otherwise) to become, the “beneficial owner” (as defined in Rule 13(d)-3 and 13(d)-5 under the Exchange Act), directly or indirectly, of 35% or more of the Capital Stock of the Parent unless the Permitted Holders own Capital Stock having a greater percentage of the general voting power of the outstanding voting Capital Stock than that held by such person or group, (b) the board of directors of the Parent or the Borrower shall cease to consist of a majority of Continuing Directors; (c) the Borrower shall at any time (i) cease to own Capital Stock of any Subsidiary representing the same percentage of outstanding Capital Stock of such Subsidiary as held by the Borrower on the date hereof or as of any later date on which any new Subsidiary is created or acquired, unless the diminution of such percentage is attributable to a disposition of Capital Stock which was permitted hereunder or (ii) cease to own Capital Stock of any Subsidiary which enables it at all times to elect a majority of the board of directors of such Subsidiary unless the disposition of such Capital Stock was permitted hereunder; or (d) the Parent shall cease to directly own one hundred percent (100%) of the issued and outstanding Capital Stock of the Borrower.

      Code . The Internal Revenue Code of 1986.

      Co-Documentation Agents . As defined in the preamble hereto.

      Collateral . All of the property, rights and interests (other than Excluded Assets) of the Parent, the Borrower and its Subsidiaries that are or are intended to be subject to the Liens created by the Security Documents.

      Collateral Assignments of Contracts . Collectively, each collateral assignment of contracts entered into by the Borrower and/or certain of its Subsidiaries pursuant to §10.5.1.

      Commitment . With respect to each Lender, the amount set forth on Schedule 1 hereto as the amount of such Lender’s commitment to make Loans in respect of a particular Tranche to, and to participate in the issuance, extension and renewal of Letters

 

 

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of Credit for the account of, the Borrower, as the same may be reduced or increased from time to time in accordance with the terms hereof; or if such commitment is terminated pursuant to the provisions hereof, zero.

      Commitment Fee . See §2.2.

      Commitment Percentage . With respect to each Lender and each Tranche, the respective percentages set forth on Schedule 1 hereto as such Lender’s percentage of such Loans in respect of such Tranche made or to be made by such Lender as such percentage may be adjusted pursuant to §15 or §17.

      Common Stock . The common stock of the Parent, par value $.01 per share.

      Communications Act . The Communications Act of 1934, as amended, and the rules and regulations of the FCC thereunder as now or hereafter