AMENDMENT NO. 3 TO THE CREDIT AGREEMENT

EX-10.4 10 t1401272_ex10-4.htm EXHIBIT 10.4

Exhibit 10.4

EXECUTION VERSION

AMENDMENT NO. 3 TO THE CREDIT AGREEMENT

THIS AMENDMENT NO. 3 TO THE CREDIT AGREEMENT (this “Amendment”), dated as of July 11, 2014, is made by and among TOWNSQUARE RADIO, LLC, a Delaware limited liability company (the “Borrower”), TOWNSQUARE RADIO HOLDINGS, LLC, a Delaware limited liability company (“Holdings”), each of the other Loan Parties signatory hereto, each of the undersigned banks and other financial institutions party hereto as lenders (in such capacity, the “Lenders”) and GENERAL ELECTRIC CAPITAL CORPORATION, as administrative agent (in such capacity, the “Administrative Agent”) for the Lenders under, and as defined in, the Credit Agreement (as defined below).

PRELIMINARY STATEMENTS:

WHEREAS, the Borrower, Holdings, the Administrative Agent, the other agents party thereto, and the lenders from time to time party thereto are parties to a Credit Agreement, dated as of April 4, 2012 (as amended, restated, amended and restated, supplemented or otherwise modified from time to time, the “Credit Agreement”). Capitalized terms not otherwise defined in this Amendment have the same meanings as specified in the Credit Agreement;

WHEREAS, the Borrower, Holdings, the Administrative Agent and the Lenders signatory hereto have agreed to amend certain provisions of the Credit Agreement, in a manner, and on the terms and conditions, provided for herein.

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

Amendments.

a) Section 1.1 of the Credit Agreement is hereby amended by amending and restating the defined term “Revolving Credit Commitment” to read in its entirety as follows:

““Revolving Credit Commitment” means, with respect to each Revolving Credit Lender, the commitment of such Lender to make Revolving Loans and acquire interests in other Revolving Credit Outstandings, which commitment is in the amount set forth opposite such Lender’s name on Schedule I under the caption “Revolving Credit Commitment”, as amended to reflect Assignments and as such amount may be reduced pursuant to this Agreement. The aggregate amount of the Revolving Credit Commitments on the Closing Date was $10,000,000 and the aggregate amount of the Revolving Credit Commitments was increased to $25,000,000 on the Third Amendment Closing Date.”

b) Section 1.1 of the Credit Agreement is hereby amended by adding the following defined terms in the appropriate alphabetical order:

“Third Amendment” means that certain Amendment No. 3 to the Credit Agreement, dated as of July 11, 2014, by and among the Administrative Agent, the Borrower, Holdings, the other Loan Parties signatory thereto and the Lenders signatory thereto.

“Third Amendment Closing Date” means the first date on which all of the conditions precedent to effectiveness of the Third Amendment set forth in Section 2 of the Third Amendment have been satisfied or duly waived.

c) Schedule I of the Credit Agreement is hereby amended and restated to read in its entirety as set forth on Schedule I attached hereto.

2. Conditions to Effectiveness. This Amendment shall become effective upon the satisfaction of the following conditions precedent:

a) The Administrative Agent (or its counsel) shall have received from each party hereto either (i) a counterpart of this Amendment signed on behalf of such party, or (ii) written evidence satisfactory to the Administrative Agent (which may include telecopy transmission of a signed signature page of this Amendment) that such party has signed a counterpart of this Amendment.

b) The Administrative Agent (or its counsel) shall have received from MIHI LLC and the Borrower a fully-executed joinder agreement, in form and substance satisfactory to the Administrative Agent.

c) The Administrative Agent shall have received each of the items referred to below:

i. a copy of the Borrower’s certificate of incorporation, including all amendments thereto, certified as of a recent date by the Secretary of State of the jurisdiction of its incorporation, and accompanied by a certificate as to the good standing of the Borrower as of a recent date from such Secretary of State;

ii. a certificate of the Secretary or Assistant Secretary of the Borrower, dated as of the Third Amendment Closing Date and certifying (A) the names and signatures of each officer of the Borrower authorized to execute this Amendment and any other document delivered in connection herewith, (B) the Constituent Documents of the Borrower attached to such certificate are complete and correct copies of such Constituent Documents as in effect on the date of such certification and (C) the resolutions of the Borrower’s board of directors or other appropriate governing body approving and authorizing the execution, delivery and performance of this Amendment and any other document delivered in connection herewith; and

iii. a solvency certificate executed by the Chief Financial Officer of the Borrower in substantially the form of the solvency certificate previously delivered by the Borrower on the Closing Date.

d) There shall have been paid to the Administrative Agent, for the account of the Administrative Agent, its Related Persons or any Lender, as the case may be, all fees and all reimbursements of costs or expenses (including reasonable fees, charges and disbursements of Latham & Watkins LLP), in each case, to the extent (i) an invoice has been received by the Borrower at least one (1) Business Day prior to the Third Amendment Closing Date and (ii) due and payable under this Amendment on or before Third Amendment Effective Date.

e) The representations and warranties specified in Section 3 below shall be true and correct.

f) Borrower shall have paid to the Administrative Agent, for the ratable benefit of each Revolving Credit Lender increasing its Revolving Credit Commitment pursuant to this Amendment (based on the amount of such Revolving Credit Lender’s increased Revolving Credit Commitment), a closing fee in an amount equal to the product of (a) 0.005 multiplied by (b) the amount the aggregate Revolving Credit Commitments are increased on the Third Amendment Closing Date (the “Closing Fee”), which Closing Fee shall be earned and due and payable on the Third Amendment Closing Date.

3. Representations and Warranties. In order to induce the Administrative Agent and the Lenders to enter into this Amendment, each Loan Party, jointly and severally, represents and warrants to the Administrative Agent and each Lender that the following are, and after giving effect to this Amendment will be, true, correct and complete:

a) the execution, delivery and performance of this Amendment by each Loan Party have been duly authorized by all necessary action, and do not and will not:

i. contravene the terms of any of that Person’s Constituent Documents;

ii. conflict with or result in any material breach or contravention of, or result in the creation of any Lien under, any document evidencing any material Contractual Obligation to which such Person is a party or any order, injunction, writ or decree of any Governmental Authority to which such Person or its property is subject; or

iii. violate any material Requirement of Law in any material respect.

b) this Amendment constitutes the legal, valid and binding obligation of each Loan Party party hereto, enforceable against such Person in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, or similar laws affecting the enforcement of creditors’ rights generally or by equitable principles relating to enforceability;

c) upon the effectiveness of this Amendment, all of the representations and warranties by each Loan Party contained in the Credit Agreement or in any other Loan Document are true and correct in all material respects (without duplication of any materiality qualifier contained therein) on and as of the date of the effectiveness of this Amendment, except to the extent that such representation or warranty expressly relates to an earlier date (in which event such representations and warranties were true and correct in all material respects (without duplication of any materiality qualifier contained therein) as of such earlier date); and

d) no Default or Event of Default has occurred and is continuing or would result after giving effect to this Amendment.

4. Reaffirmation. Each Loan Party hereby (i) ratifies and reaffirms all of its payment and performance obligations, contingent or otherwise, under each of the Loan Documents to which it is a party, (ii) ratifies and reaffirms each grant of a lien on, or security interest in, its property made pursuant to the Loan Documents (including, without limitation, the grant of security made by such Loan Party pursuant to the Guaranty and Security Agreement) and confirms that such liens and security interests continue to secure the Obligations under the Loan Documents, including, without limitation, all Obligations resulting from or incurred pursuant to the increased Revolving Credit Commitments made pursuant to this Amendment, in each case subject to the terms thereof and (iii) in the case of each Guarantor, ratifies and reaffirms its guaranty of the Obligations pursuant to the Guaranty and Security Agreement.

5. Effect. Each Loan Party acknowledges and agrees that the amendments set forth herein are effective solely for the purposes set forth herein and that the execution and delivery by Administrative Agent and Lenders of this Amendment shall not be deemed (i) except as expressly provided in this Amendment, to be a consent to any amendment, waiver or modification of any term or condition of the Credit Agreement or of any other Loan Document, (ii) to create a course of dealing or otherwise obligate Administrative Agent or Lenders to forbear, waive, consent or execute similar amendments under the same or similar circumstances in the future, or (iii) to amend, prejudice, relinquish or impair any right of Administrative Agent or Lenders to receive any indemnity or similar payment from any Person or entity as a result of any matter arising from or relating to this Amendment. Upon the effectiveness of this Amendment, each reference in the Credit Agreement to “this Agreement”, “hereunder”, “hereof’, “herein” or words of similar import shall mean and be a reference to the Credit Agreement as amended hereby. Without limiting the generality of the foregoing, the Loan Documents (including the Guaranty and Security Agreement) and all of the Collateral described therein do and shall continue to secure the payment of all Obligations of the Loan Parties under the Loan Documents, as amended by, and after giving effect to, this Amendment, in each case subject to the terms thereof.

6. Costs, Expenses. The Borrower agrees to pay on demand all reasonable out-of-pocket costs and expenses of the Administrative Agent in connection with the

preparation, execution and delivery of this Amendment and the other instruments and documents to be delivered hereunder (including, without limitation, the reasonable fees and expenses of counsel for the Administrative Agent) in accordance with the terms of Section 11.3 of the Credit Agreement.

7. Execution in 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 shall be deemed to be an original and all of which taken together shall constitute but one and the same agreement. Delivery of an executed counterpart of a signature page to this Amendment by telecopier (or other electronic transmission including a signed copy in PDF format) shall be effective as delivery of a manually executed counterpart of this Amendment.

8. Governing Law. This Amendment and the rights and obligations of the parties hereto (including any claims in contract law or tort law arising out of the subject matter hereof) shall be governed by, and construed and interpreted in accordance with, the law of the State of New York (without respect to the principles of conflicts of laws that would result in the application of any law other than the law of the State of New York).

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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed by their respective officers thereunto duly authorized, as of the date first above written.

TOWNSQUARE RADIO, LLC

By:	/s/ Stuart Rosenstein
	Name:	Stuart Rosenstein
	Title:	Executive Vice President and
		Chief Financial Officer

TOWNSQUARE RADIO HOLDINGS, LLC

By:	/s/ Stuart Rosenstein
	Name:	Stuart Rosenstein
	Title:	Executive Vice President and
		Chief Financial Officer