-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, OoMZNhwBWKuO0ibD5UEJJ9DvWr0i3vh7yAmTaLVfjJ9d4d5UbrlqXTnghg6VMMqq 0BZSeR82xMGdClMUz360TA== 0000950142-05-001714.txt : 20050611 0000950142-05-001714.hdr.sgml : 20050611 20050606172156 ACCESSION NUMBER: 0000950142-05-001714 CONFORMED SUBMISSION TYPE: SC TO-I/A PUBLIC DOCUMENT COUNT: 3 FILED AS OF DATE: 20050606 DATE AS OF CHANGE: 20050606 SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: EMMIS COMMUNICATIONS CORP CENTRAL INDEX KEY: 0000783005 STANDARD INDUSTRIAL CLASSIFICATION: RADIO BROADCASTING STATIONS [4832] IRS NUMBER: 351542018 STATE OF INCORPORATION: IN FISCAL YEAR END: 0228 FILING VALUES: FORM TYPE: SC TO-I/A SEC ACT: 1934 Act SEC FILE NUMBER: 005-43521 FILM NUMBER: 05881227 BUSINESS ADDRESS: STREET 1: ONE EMMIS PLAZA STREET 2: 40 MONUMENT CIRCLE SUITE 700 CITY: INDIANAPOLIS STATE: IN ZIP: 46204 BUSINESS PHONE: 3172660100 MAIL ADDRESS: STREET 1: ONE EMMIS PLAZA STREET 2: 40 MONUMENT CIRCLE #700 CITY: INDIANAPOLIS STATE: IN ZIP: 46204 FORMER COMPANY: FORMER CONFORMED NAME: EMMIS BROADCASTING CORPORATION DATE OF NAME CHANGE: 19920703 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: EMMIS COMMUNICATIONS CORP CENTRAL INDEX KEY: 0000783005 STANDARD INDUSTRIAL CLASSIFICATION: RADIO BROADCASTING STATIONS [4832] IRS NUMBER: 351542018 STATE OF INCORPORATION: IN FISCAL YEAR END: 0228 FILING VALUES: FORM TYPE: SC TO-I/A BUSINESS ADDRESS: STREET 1: ONE EMMIS PLAZA STREET 2: 40 MONUMENT CIRCLE SUITE 700 CITY: INDIANAPOLIS STATE: IN ZIP: 46204 BUSINESS PHONE: 3172660100 MAIL ADDRESS: STREET 1: ONE EMMIS PLAZA STREET 2: 40 MONUMENT CIRCLE #700 CITY: INDIANAPOLIS STATE: IN ZIP: 46204 FORMER COMPANY: FORMER CONFORMED NAME: EMMIS BROADCASTING CORPORATION DATE OF NAME CHANGE: 19920703 SC TO-I/A 1 sc-toi_a3.txt AMENDMENT NO. 3 SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 SCHEDULE TO TENDER OFFER STATEMENT UNDER SECTION 14(D)(1) OR 13(E)(1) OF THE SECURITIES EXCHANGE ACT OF 1934 (AMENDMENT NO. 3) EMMIS COMMUNICATIONS CORPORATION (Name of Subject Company and Filing Person) CLASS A COMMON STOCK, PAR VALUE $0.01 PER SHARE (Title of Class of Securities) 291525103 (CUSIP Number of Class of Securities) J. SCOTT ENRIGHT, ESQ. ONE EMMIS PLAZA 40 MONUMENT CIRCLE SUITE 700 INDIANAPOLIS, INDIANA 46204 (317) 266-0100 Copy to: JAMES M. DUBIN, ESQ. PAUL, WEISS, RIFKIND, WHARTON & GARRISON LLP 1285 AVENUE OF THE AMERICAS NEW YORK, NEW YORK 10019-6064 (212) 373-3000 (Name, address and telephone number of person authorized to receive notices and communications on behalf of the Offeror) CALCULATION OF FILING FEE Transaction Valuation* Amount of Filing Fee** ---------------------- ---------------------- $399,937,500.00 $47,073.00 * Estimated for purposes of calculating the amount of the filing fee only, this amount is based on the purchase of 20,250,000 shares of Class A common stock at the maximum tender offer price of $19.75 per share. ** The amount of the filing fee, calculated in accordance with Rule 0-11 of the Securities Exchange Act of 1934, as amended, equals $117.70 per million of the aggregate amount of the cash offered by Emmis Communications Corporation |X| Check the box if any part of the filing fee is offset as provided by Rule 0-11(a)(2) and identify the filing with which the offsetting fee was previously paid. Identify the previous filing by registration statement number, or the Form or Schedule and the date of its filing. Amount Previously Paid: $47,073.00 Filing Party: Emmis Communications Corporation Form or Registration No.: Schedule TO-I Date Filed: May 16, 2005
|_| Check the box if the filing relates solely to preliminary communications made before the commencement of a tender offer. Check the appropriate boxes below to designate any transaction to which the statement relates: |_| third-party tender offer subject to Rule 14d-1. |X| issuer tender offer subject to Rule 13e-4. |_| going-private transaction subject to Rule 13e-3. |_| amendment to Schedule 13D under Rule 13d-2. Check the following box if the filing is a final amendment reporting the results of the tender offer: |_| INTRODUCTION This Amendment No. 3 (this "Amendment") amends and supplements the Tender Offer Statement on Schedule TO originally filed with the Securities and Exchange Commission on May 16, 2005, and amended and supplemented by Amendment No. 1 to the Tender Offer Statement on Schedule TO filed with the Securities and Exchange Commission on May 25, 2005, and Amendment No. 2 to the Tender Offer Statement on Schedule TO filed with the Securities and Exchange Commission on June 2, 2005 (collectively, the "Schedule TO") by Emmis Communications Corporation, an Indiana corporation ("Emmis" or the "Company") relating to the offer by Emmis to purchase up to 20,250,000 shares of its Class A common stock, $0.01 par value per share (the "Class A common stock") at a price not greater than $19.75 nor less than $17.25 per share, net to the seller in cash, without interest, upon the terms and subject to the conditions set forth in the Offer to Purchase, dated May 16, 2005 (as amended, the "Offer to Purchase") and in the related Letter of Transmittal (the "Letter of Transmittal"). ITEMS 1 THROUGH 11. Items 1 through 11 of the Schedule TO, which incorporate by reference the information contained in the Offer to Purchase and the related Letter of Transmittal, copies of which were filed with the original Schedule TO as Exhibits (a)(1)(A) and (a)(1)(B), respectively, are hereby amended as follows: 1. In the sixth paragraph of the cover page of the Offer to Purchase, the last two sentences are amended and restated as follows: "As a result, Mr. Smulyan's voting interest in Emmis (calculated based only on the total number of outstanding shares) will increase from approximately 49% to approximately 61%, assuming that the maximum 20,250,000 shares of Class A common stock are purchased in the Offer. Because this increase in voting interest will result in a "transfer of control" under the Communications Act, it requires Federal Communications Commission approvals, which approvals were obtained on May 31, 2005." ITEM 1. SUMMARY TERM SHEET ITEM 4. TERMS OF TRANSACTION. ITEM 7. SOURCE AND AMOUNT OF FUND OR OTHER CONSIDERATION. On June 6, 2005, Emmis and its principal operating subsidiary, Emmis Operating Company ("Emmis Operating Company"), entered into the First Amendment (the "Amendment") to the Revolving Credit and Term Loan Agreement, dated as of May 10, 2004, by and among Emmis Operating Company, as the borrower, Bank of America, N.A. as administrative agent for the lenders, Goldman Sachs Credit Partners L.P., as syndication agent for the lenders, Wachovia Bank, N.A, Deutsche Bank Securities Inc., and Credit Suisse First Boston acting through its Cayman Islands branch as co-documentation agents for the lenders, and the named financial institutions as lenders. Among other things, the Amendment, which is subject to customary closing conditions, modifies certain negative covenants to permit (i) Emmis to incur additional indebtedness and (ii) Emmis Operating Company to make payments to Emmis to fund interest payments on the Emmis floating rate senior notes described below, each in connection with the Offer. Emmis intends to use borrowings of approximately $100.0 million under the revolving portion of the amended credit facility to pay a portion of the cash consideration in the Offer and related fees and expenses. In addition, on June 6, 2005, Emmis delivered a commitment notice (the "Notice") to Bank of America Securities LLC under the Commitment and Engagement Letter (the "Commitment Letter") between the parties, dated as of May 15, 2005. The Commitment Letter and the Notice require Banc of America Securities LLC, subject to customary closing conditions, to purchase $300.0 million of Emmis floating rate senior notes due 2012 on June 13, 2005. Emmis intends to use a portion of this borrowing to pay a portion of the cash consideration in the Offer and related fees and expenses. As a result, the condition to the Offer that Emmis receive debt financing on terms and conditions consistent with those set forth in the Amendment Commitment Letter, dated as of May 15, 2005, and the Commitment and Engagement Letter, dated as of May 15, 2005, as they may be amended, supplemented or modified, in an amount sufficient to purchase shares of Class A common stock pursuant to the Offer and to pay related fees and expenses, has been satisfied. The Offer remains subject to certain other conditions specified in the Offer to Purchase. ITEM 11. ADDITIONAL INFORMATION. On June 2, 2005, the Indiana Securities Commissioner held a hearing to determine whether the Offer is exempt from certain provisions of the Indiana Business Takeover Offers Act. Following the hearing, the Indiana Commissioner issued an order stating that the Offer is exempt because the Offer is not intended to, and will not have the effect of, changing or influencing control of the Company. ITEM 12. EXHIBITS. Item 12 of the Schedule TO is hereby amended and supplemented by adding the following exhibits: (a)(1)(O)** Press Release, dated June 6, 2005. (b)(4)** First Amendment to the Revolving Credit and Term Loan Agreement, dated as of June 6, 2005. ** Filed herewith. SIGNATURE After due inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct. EMMIS COMMUNICATIONS CORPORATION By: /s/ J. Scott Enright -------------------------------- Name: J. Scott Enright Title: Vice President, Associate General Counsel and Secretary Dated: June 6, 2005 EXHIBIT INDEX (a)(1)(A)* Offer to Purchase dated May 16, 2005. (a)(1)(B)* Letter of Transmittal. (a)(1)(C)* Notice of Guaranteed Delivery. (a)(1)(D)* Letter to Brokers, Dealers, Commercial Banks, Trust Companies and Other Nominees dated May 16, 2005. (a)(1)(E)* Letter to Clients for use by Brokers, Dealers, Commercial Banks, Trust Companies and Other Nominees dated May 16, 2005. (a)(1)(F)* Guidelines for Certification of Taxpayer Identification Number on Substitute Form W-9. (a)(1)(G) Press Release, dated May 10, 2005, incorporated by reference to the Company's Statement on Schedule TO filed on May 10, 2005. (a)(1)(H)* Press Release, dated May 16, 2005. (a)(1)(I)* Summary Advertisement. (a)(1)(J)* Letter to Shareholders from the Chief Executive Officer of the Company, dated May 16, 2005. (a)(1)(K)* Letter to Participants in the Emmis Operating Company 401(k) Plan. (a)(1)(L)* Letter to Participants in the Emmis Operating Company Profit Sharing Plan. (a)(1)(M)* Letter to Participants in the Emmis Communications Corporation Employee Stock Purchase Plan. (a)(1)(N)* Press Release, dated June 1, 2005. (a)(1)(O)** Press Release, dated June 6, 2005. (a)(2) Not Applicable. (a)(3) Not Applicable. (a)(4) Not Applicable. (a)(5)(A)* Notice of Hearing. (b)(1)* Amendment Commitment Letter, dated as of May 15, 2005, among Banc of America Securities LLC, Bank of America, N.A. and Emmis Operating Company. (b)(2)* Commitment and Engagement Letter, dated as of May 15, 2005, between Banc of America Securities LLC and the Company. (b)(3) Revolving Credit and Term Loan Agreement dated May 10, 2004, incorporated by reference from Exhibit 10.1 to Emmis' Annual Report on Form 10-K for the fiscal year ended February 29, 2004. (b)(4)** First Amendment to the Revolving Credit and Term Loan Agreement dated as of June 6, 2005. (d)(1) Employment Agreement, dated as of March 1, 2004, by and between Emmis Operating Company and Jeffrey H. Smulyan, incorporated by reference from Exhibit 10.1 to the Company's Quarterly Report on Form 10-Q for the quarter ended August 31, 2004. (d)(2) Employment Agreement, dated as of March 1, 2002, by and between Emmis Operating Company and Richard Cummings, incorporated by reference from Exhibit 10.21 to the Company's Annual Report on Form 10-K for the fiscal year ended February 28, 2003. (d)(3) Amendment to Employment Agreement, dated February 7, 2005, by and between Emmis Operating Company and Richard Cummings, incorporated by reference from Exhibit 10.2 to the Company's Form 8-K filed February 11, 2005. (d)(4) Employment Agreement, dated as of March 1, 2002, by and between Emmis Operating Company and Walter Z. Berger, incorporated by reference from Exhibit 10.24 to the Company's Annual Report on Form 10-K for the fiscal year ended February 28, 2003. (d)(5) Amendment to Employment Agreement, dated February 7, 2005, by and between Emmis Operating Company and Walter Z. Berger, incorporated by reference from Exhibit 10.4 to the Company's Form 8-K filed February 11, 2005. (d)(6) Employment Agreement, dated as of March 1, 2003, by and between Emmis Operating Company and Randall D. Bongarten, incorporated by reference from Exhibit 10.4 to the Company's Quarterly Report on Form 10-Q for the quarter ended May 31, 2003. (d)(7) Amendment to Employment Agreement, dated May 13, 2005, by and among the Company, Emmis Operating Company and Randall D. Bongarten, incorporated by reference from Exhibit 10.16 to the Company's Annual Report on Form 10-K for the fiscal year ended February 28, 2005. (d)(8) Employment Agreement, effective as of March 1, 2003, by and between Emmis Operating Company and Gary L. Kaseff, incorporated by reference from Exhibit 10.1 to the Company's Quarterly Report on Form 10-Q for the quarter ended August 31, 2003. (d)(9) Amendment to Employment Agreement, dated February 7, 2005, by and between Emmis Operating Company and Gary L. Kaseff, incorporated by reference from Exhibit 10.3 to the Company's Form 8-K filed February 11, 2005. (d)(10) Change in Control Severance Agreement, dated as of March 1, 2004, by and between the Company and Jeffrey H. Smulyan, incorporated by reference from Exhibit 10.1 to the Company's Quarterly Report on Form 10-Q for the quarter ended August 31, 2004. (d)(11) Change in Control Severance Agreement, dated as of August 11, 2003, by and between the Company and Walter Z. Berger, incorporated by reference from Exhibit 10.2 to the Company's Quarterly Report on Form 10-Q for the quarter ended August 31, 2003. (d)(12) Change in Control Severance Agreement, dated as of August 11, 2003, by and between the Company and Gary L. Kaseff, incorporated by reference from Exhibit 10.3 to the Company's Quarterly Report on Form 10-Q for the quarter ended August 31, 2003. (d)(13) Change in Control Severance Agreement, dated as of August 11, 2003, by and between the Company and Randall D. Bongarten, incorporated by reference from Exhibit 10.4 to the Company's Quarterly Report on Form 10-Q for the quarter ended August 31, 2003, as amended by Amendment to Employment Agreement, dated May 13, 2005, by and among the Company, Emmis Operating Company and Randall D. Bongarten, incorporated by reference from Exhibit 10.16 to the Company's Annual Report on Form 10-K for the fiscal year ended February 28, 2005. (d)(14) Change in Control Severance Agreement, dated as of August 11, 2003, by and between the Company and Richard F. Cummings, incorporated by reference from Exhibit 10.5 to the Company's Quarterly Report on Form 10-Q for the quarter ended August 31, 2003. (d)(15) Emmis Operating Company Profit Sharing Plan, as amended, effective March 1, 1997 incorporated by reference from Exhibit 10.1 to the Company's Annual Report on Form 10-K for the fiscal year ended February 28, 2003. (d)(16) Emmis Communications Corporation 1994 Equity Incentive Plan, incorporated by reference from Exhibit 10.5 to the Company's Registration Statement on Form S-1, File No. 33-73218. (d)(17) The Emmis Communications Corporation 1995 Non-Employee Director Stock Option Plan, incorporated by reference from Exhibit 10.15 to the Company's Annual Report on Form 10-K for the fiscal year ended February 28, 1995. (d)(18) The Emmis Communications Corporation 1995 Equity Incentive Plan, incorporated by reference from Exhibit 10.16 to the Company's Annual Report on Form 10-K for the fiscal year ended February 28, 2005. (d)(19) Emmis Communications Corporation 1997 Equity Incentive Plan, incorporated by reference from Exhibit 10.5 to the Company's Annual Report on Form 10-K for the fiscal year ended February 28, 1998. (d)(20) Emmis Communications Corporation 1999 Equity Incentive Plan, incorporated by reference from the Company's proxy statement dated May 26, 1999. (d)(21) Emmis Communications Corporation 2001 Equity Incentive Plan, incorporated by reference from the Company's proxy statement dated May 25, 2001. (d)(22) Emmis Communications Corporation 2002 Equity Compensation Plan, incorporated by reference from the Company's proxy statement dated May 30, 2002. (d)(23) Emmis Communications Corporation 2004 Equity Compensation Plan, incorporated by reference from the Company's proxy statement dated May 28, 2004. (d)(24) 2005 Stock Compensation Program Restricted Stock Agreement Form (tax vesting option), incorporated by reference to the Company's Form 10-Q for the quarter ended November 30, 2004. (d)(25) 2005 Stock Compensation Program Restricted Stock Agreement Form (non-tax vesting option), incorporated by reference to the Company's Form 10-Q for the quarter ended November 30, 2004. (d)(26) 2005 Stock Compensation Program, incorporated by reference to the Company's Form 8-K filed December 21, 2004. (d)(27) 2005 Outside Director Stock Compensation Program, incorporated by reference to the Company's Form 8-K filed December 21, 2004. (d)(28) Form of Stock Option Grant Agreement, incorporated by reference to the Company's Form 8-K filed March 7, 2005. (d)(29) Form of Restricted Stock Option Grant Agreement, incorporated by reference to the Company's Form 8-K filed March 7, 2005. (d)(30) Director Compensation Policy effective May 13, 2005, incorporated by reference to the Company's Annual Report on Form 10-K for the fiscal year ended February 28, 2005. (g) Not Applicable. (h) Not Applicable. - -------------- * Previously filed. ** Filed herewith. EX-99 2 exa10_sctoi-a3.txt EXHIBIT (A)(1)(O) EXHIBIT (a)(1)(O) ----------------- For Immediate Release Contacts: June 6, 2005 Walter Berger, EVP & CFO Kate Snedeker, Media & Investor Relations 317.266.0100 EMMIS ANNOUNCES SATISFACTION OF FINANCING CONDITION UNDER ITS "DUTCH AUCTION" TENDER OFFER INDIANAPOLIS, INDIANA - June 6, 2005 - Emmis Communications Corporation (NASDAQ: EMMS) announced today that it has satisfied the financing condition under its "Dutch Auction" tender offer through an amendment to the credit facility of its principal operating subsidiary, Emmis Operating Company, and the delivery of a commitment notice for $300.0 million of Emmis floating rate senior notes due 2012. Emmis and Emmis Operating Company entered into an amendment to the existing credit facility of Emmis Operating Company with a syndicate of financial institutions led by Bank of America, N.A. Among other things, the amendment, which is subject to customary closing conditions, modifies certain negative covenants to permit Emmis to incur additional indebtedness and Emmis Operating Company to make payments to Emmis to fund interest payments on the Emmis floating rate senior notes described below, each in connection with the financing of Emmis' previously announced "Dutch Auction" tender offer to purchase for cash up to 20,250,000 shares of its Class A common stock at a price per share not less than $17.25 and not greater than $19.75. Emmis also delivered a commitment notice to Bank of America Securities LLC pursuant to the Commitment and Engagement Letter between the parties, dated as of May 15, 2005. The notice requires Banc of America Securities LLC, subject to customary closing conditions, to purchase $300.0 million of Emmis floating rate senior notes due 2012 on June 13, 2005. Emmis expects to use the proceeds from the sale of Emmis floating rate senior notes and borrowings under the revolving portion of the amended credit facility to complete the "Dutch Auction" tender offer and to pay related fees and expenses. The completion of the amendment to the existing credit facility and the purchase of the Emmis floating rate senior notes had been a condition to completion of the "Dutch Auction" tender offer. This condition has now been satisfied. EMMIS COMMUNICATIONS -- GREAT MEDIA, GREAT PEOPLE, GREAT SERVICE (R) Emmis is an Indianapolis-based diversified media firm with radio broadcasting, television broadcasting and magazine publishing operations. Emmis owns 23 FM and 2 AM domestic radio stations serving the nation's largest markets of New York, Los Angeles and Chicago as well as Phoenix, St. Louis, Austin, Indianapolis and Terre Haute, IN. Emmis has recently announced its intent to seek strategic alternatives for its 16 television stations, which could result in the sale of all or a portion of its television assets. In addition, Emmis owns a radio network, international radio stations, regional and specialty magazines and ancillary businesses in broadcast sales and book publishing. THIS PRESS RELEASE IS FOR INFORMATIONAL PURPOSES ONLY AND DOES NOT CONSTITUTE AN OFFER TO BUY OR THE SOLICITATION OF AN OFFER TO SELL SHARES OF EMMIS CLASS A COMMON STOCK. THE TENDER OFFER IS BEING MADE ONLY PURSUANT TO THE OFFER TO PURCHASE AND RELATED MATERIALS THAT EMMIS HAS DISTRIBUTED TO ITS SHAREHOLDERS, AS AMENDED. SHAREHOLDERS AND INVESTORS SHOULD READ CAREFULLY THE OFFER TO PURCHASE AND RELATED MATERIALS BECAUSE THEY CONTAIN IMPORTANT INFORMATION. SHAREHOLDERS AND INVESTORS MAY OBTAIN A FREE COPY OF THE TENDER OFFER STATEMENT ON SCHEDULE TO, THE OFFER TO PURCHASE AND OTHER DOCUMENTS THAT EMMIS HAS FILED AND MAY FILE WITH THE SECURITIES AND EXCHANGE COMMISSION AT THE COMMISSION'S WEB SITE AT WWW.SEC.GOV. SHAREHOLDERS AND INVESTORS ALSO MAY OBTAIN A COPY OF THESE DOCUMENTS, AS WELL AS ANY OTHER DOCUMENTS THAT EMMIS HAS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION, WITHOUT CHARGE, FROM GEORGESON SHAREHOLDER COMMUNICATIONS, INC., THE INFORMATION AGENT FOR THE TENDER OFFER, TOLL FREE AT (866) 399-8748. SHAREHOLDERS ARE URGED TO CAREFULLY READ THESE MATERIALS PRIOR TO MAKING ANY DECISION WITH RESPECT TO THE OFFER. CERTAIN STATEMENTS INCLUDED ABOVE WHICH ARE NOT STATEMENTS OF HISTORICAL FACT, INCLUDING FINANCIAL DATA FOR QUARTERS OR OTHER PERIODS THAT ARE NOT YET COMPLETED AND STATEMENTS IDENTIFIED WITH THE WORDS "CONTINUES," "EXPECT," "WILL," OR "WOULD," ARE INTENDED TO BE, AND ARE, IDENTIFIED AS "FORWARD-LOOKING STATEMENTS," AND INVOLVE KNOWN AND UNKNOWN RISKS, UNCERTAINTIES AND OTHER FACTORS THAT MAY CAUSE THE ACTUAL RESULTS, PERFORMANCE OR ACHIEVEMENTS OF EMMIS TO BE MATERIALLY DIFFERENT FROM ANY FUTURE RESULT, PERFORMANCE OR ACHIEVEMENT EXPRESSED OR IMPLIED BY SUCH FORWARD-LOOKING STATEMENTS. SUCH FACTORS INCLUDE, AMONG OTHERS, GENERAL ECONOMIC AND BUSINESS CONDITIONS; FLUCTUATIONS IN THE DEMAND FOR ADVERTISING; INCREASED COMPETITION IN THE BROADCASTING INDUSTRY INCLUDING THE IMPLEMENTATION OF COMPETING FORMATS IN LARGE MARKETS; THE ATTRACTION AND RETENTION OF QUALITY TALENT AND OTHER PROGRAMMING; PUBLIC AND GOVERNMENTAL REACTION TO EMMIS PROGRAMMING DECISIONS; CHANGES IN THE COSTS OF PROGRAMMING; CHANGES IN INTEREST RATES; INABILITY TO GROW THROUGH SUITABLE ACQUISITIONS, INCLUDING THE DESIRED RADIO; INABILITY OR DELAY IN CLOSING ACQUISITIONS OR DISPOSITIONS; TERRORIST ATTACKS OR OTHER LARGE-SCALE DISASTERS; WARS AND OTHER EVENTS CREATING ECONOMIC UNCERTAINTY; AND OTHER FACTORS MENTIONED IN DOCUMENTS FILED BY EMMIS WITH THE SECURITIES AND EXCHANGE COMMISSION. EMMIS DOES NOT UNDERTAKE ANY OBLIGATION TO PUBLICLY UPDATE OR REVISE ANY FORWARD-LOOKING STATEMENTS BECAUSE OF NEW INFORMATION, FUTURE EVENTS OR OTHERWISE. EX-99 3 exb4_sctoi-a3.txt EXHIBIT (B)(4) EXHIBIT (b) (4) --------------- FIRST AMENDMENT TO REVOLVING CREDIT AND TERM LOAN AGREEMENT This FIRST AMENDMENT TO REVOLVING CREDIT AND TERM LOAN AGREEMENT, dated as of June 6, 2005 (this "AMENDMENT"), is by and among (a) EMMIS OPERATING COMPANY (the "BORROWER"), an Indiana corporation, (b) EMMIS COMMUNICATIONS CORPORATION (the "PARENT"), an Indiana corporation, (c) the lending institutions listed on Schedule 1 to the Credit Agreement, as defined below, (together with any institution that becomes a lender pursuant to ss.15 or ss.17 of the Credit Agreement, the "LENDERS"), (d) BANK OF AMERICA, N.A., as administrative agent for the Lenders (in such capacity, the "ADMINISTRATIVE AGENT"), (e) GOLDMAN SACHS CREDIT PARTNERS L.P., as syndication agent for the Lenders (in such capacity, the "SYNDICATION AGENT"), and (f) WACHOVIA BANK, N.A., DEUTSCHE BANK SECURITIES INC., and CREDIT SUISSE FIRST BOSTON, ACTING THROUGH ITS CAYMAN ISLANDS BRANCH, as co-documentation agents for the Lenders (in such capacity, each a "CO-DOCUMENTATION AGENT" and collectively, the "CO-DOCUMENTATION AGENTS"). Capitalized terms used herein without definition shall have the meanings assigned to such terms in the Credit Agreement. WHEREAS, the Borrower, the Parent, the Lenders and the Agents are parties to that certain Revolving Credit and Term Loan Agreement, dated as of May 10, 2004 (as amended, restated, supplemented or otherwise modified and in effect from time to time, the "CREDIT AGREEMENT"), pursuant to which the Lenders have made loans and otherwise extended credit to the Borrower on the terms and subject to the conditions set forth therein; WHEREAS, the Borrower, the Parent, the Lenders and the Agents 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 Agents hereby agree as follows: SECTION 1. AMENDMENTS TO SECTION 1.1 OF THE CREDIT AGREEMENT. (a) Section 1.1 of the Credit Agreement is hereby amended by adding the following new SUBCLAUSE (A)(V) immediately after SUBCLAUSE (A)(IV) in the definition of "Consolidated Operating Cash Flow": "PLUS, (v) to the extent deducted in the calculation of Consolidated Net Income (or Deficit) for such period, transaction costs and expenses incurred in connection with the issuance of the HoldCo Floating Rate Notes, the 2005 ECC Stock Tender Offer and any amendments to the Credit Agreement in connection therewith". -2- (b) Section 1.1 of the Credit Agreement is hereby further amended by adding the following to the end of the definition of "Consolidated Total Interest Expense": "In addition to the foregoing and solely for purposes of determining Consolidated Total Interest Expense with respect to ss.ss.11.3 and 11.4 hereof, for the Reference Periods ending on the last day of the first three fiscal quarters ending after the First Amendment Effective Date, Consolidated Total Interest Expense shall be an amount equal to the product of Consolidated Total Interest Expense for the fiscal quarters in such Reference Period which ended after the First Amendment Effective Date, multiplied by a fraction whose numerator is four (4) and whose denominator is such actual number of fiscal quarters ending since the First Amendment Effective Date." (c) Section 1.1 of the Credit Agreement is hereby further amended by deleting CLAUSE (I) appearing in the definition of "HoldCo Corporate Overhead Expenses" and restating such CLAUSE (I) as follows: "(i) fees payable to the trustee under the Senior Discount Note Indenture and the HoldCo Floating Rate Note Indenture". (d) Section 1.1 of the Credit Agreement is hereby further amended by deleting the definition of "Net Cash Sale Proceeds" and restating it as follows: "NET CASH SALE PROCEEDS. In respect of any Asset Sale or Asset Swap, the gross cash proceeds received by the Parent or any of its Subsidiaries, or in respect of any sale of TV Assets by an Excluded Subsidiary, the gross cash proceeds received by such Excluded Subsidiary, MINUS, in each case, the sum of (a) all reasonable out-of-pocket fees, commissions and other reasonable and customary direct expenses actually incurred in connection with such Asset Sale or Asset Swap or sale of TV Assets, including the amount of any transfer or documentary taxes required to be paid by such Person in connection with such Asset Sale or Asset Swap or sale of TV Assets, PLUS (b) the aggregate amount of cash so received by such Person which is required to be used to retire (in whole or in part) any Indebtedness (other than under the Loan Documents) of such Person permitted by this Credit Agreement that was secured by a lien or security interest permitted by this Credit Agreement (for purposes of determining whether Indebtedness and related liens were permitted by this Credit Agreement with respect to Indebtedness of an Excluded Subsidiary and related liens, Indebtedness of an Excluded Subsidiary and related liens shall not be deemed permitted unless such Indebtedness and related liens would have been permitted by this Credit Agreement had such Excluded Subsidiary been a Subsidiary) having priority over the liens and security interests (if any) of the Administrative Agent (for the benefit of the Administrative Agent and the Lenders) with respect to such assets transferred and which is required to be repaid in whole or in part (which repayment, in the case of any other revolving credit arrangement or multiple advance arrangement, reduces any commitment thereunder) in -3- connection with such Asset Sale or Asset Swap or sale of TV Assets, PLUS (c) any cash reserve in an amount reasonably determined by the Borrower to be necessary in connection with indemnification obligations or potential post-closing purchase price adjustments relating to such Asset Sale or Asset Swap or sale of TV Assets so long as the Administrative Agent holds such cash reserve amount as cash collateral pursuant to ss.4.6 hereof (unless held by an Excluded Subsidiary in the case of a sale of TV Assets contributed to an Excluded Subsidiary in accordance with ss.10.3(k)) and the Borrower provides to the Administrative Agent an accounting of such proceeds reasonably satisfactory to the Administrative Agent. If the Parent or any of its Subsidiaries or an Excluded Subsidiary receives any promissory notes or other instruments as part of the consideration for such Asset Sale or Asset Swap or if payment in cash of any portion of the consideration for such Asset Sale or Asset Swap or sale of TV Assets is otherwise deferred or if the amount previously held as a cash reserve for indemnification obligations or purchase price adjustments is reduced, Net Cash Sale Proceeds shall be deemed to include any cash payments in respect of such notes or instruments or otherwise deferred portion of such consideration when and to the extent received by such Person." (e) Section 1.1 of the Credit Agreement is hereby further amended by adding the following new definitions in the appropriate alphabetical order: "FIRST AMENDMENT EFFECTIVE DATE. The date on which the conditions set forth in ss.13 of the First Amendment to this Credit Agreement, dated as of June 6, 2005, among the Borrower, the Parent, the Lenders and the Administrative Agent, have been satisfied." "HOLDCO FLOATING RATE NOTE DOCUMENTS. Each of the documents, instruments and other agreements entered into or delivered by the Parent (including, without limitation, the HoldCo Floating Rate Notes and the HoldCo Floating Rate Note Indenture) relating to the issuance by the Parent of the HoldCo Floating Rate Notes, each in form and substance reasonably satisfactory to the Administrative Agent, as the same may be supplemented, amended or modified from time to time." "HOLDCO FLOATING RATE NOTE INDENTURE. The Indenture between the Parent and a corporate trustee with respect to the HoldCo Floating Rate Notes, in form and substance reasonably satisfactory to the Administrative Agent, as the same may be supplemented, amended or modified from time to time, so long as any amendment or modification shall not make a provision thereof more restrictive than the terms and conditions of this Credit Agreement." "HOLDCO FLOATING RATE NOTES. The Senior Unsecured Floating Rate Notes due 2012 issued by the Parent under the HoldCo Floating Rate Note Indenture and any refinancing thereof, the proceeds of which shall be used by the Parent -4- (a) to repurchase its Capital Stock or to invest in the equity of the Borrower and (b) to pay related fees and expenses in connection with such transactions." "TV ASSETS. Television assets or businesses including, without limitation, the television Stations and assets associated therewith listed on SCHEDULE 8.3(B) of the Credit Agreement and the television licenses listed on SCHEDULE 8.21 of the Credit Agreement." "TV ASSET SALE. Any one or series of transactions pursuant to which the Borrower or any Subsidiary conveys, sells, leases, licenses or otherwise disposes of, directly or indirectly, TV Assets." "2005 ECC STOCK TENDER OFFER. The Parent's purchase, prior to October 31, 2006, of shares of its Capital Stock in an aggregate purchase amount not to exceed $400,000,000." SECTION 2. AMENDMENT TO SECTION 4.2 OF THE CREDIT AGREEMENT. Section 4.2 of the Credit Agreement is hereby amended by inserting the parenthetical "(a)" immediately after the title thereto and inserting the following new CLAUSE (B) immediately at the end of ss.4.2: "(b) Notwithstanding any provision of ss.4.2(a) to the contrary, if the Borrower or any Subsidiary receives Net Cash Sale Proceeds from any TV Asset Sale, subject to the last sentence of this ss.4.2(b), : (i) FIRST, the Borrower shall pay to the Administrative Agent, for the respective accounts of the Lenders as provided in ss.4.5 that portion of such Net Cash Sale Proceeds as necessary to enable the Borrower to demonstrate compliance on a Pro Forma Basis with the financial covenants set forth in ss.11 hereof, such amount to be applied to prepay the Loans in the manner set forth in ss.4.5, (ii) SECOND, the Borrower may apply any remainder Net Cash Sale Proceeds from such TV Asset Sale in excess of the Net Cash Sale Proceeds required to be applied pursuant to clause (i) above to prepay or redeem the Refinancing Notes or the HoldCo Floating Rate Notes; PROVIDED that if as of the last day of the fiscal quarter ended immediately prior to the date of such TV Asset Sale, the Total Leverage Ratio (calculated on a Pro Forma Basis after giving effect to such TV Asset Sale) is greater than 6.00:1.00, the Borrower shall offer to repurchase the Refinancing Notes as and if required pursuant to ss.4.10(d) of Refinancing Note Indenture, and (iii) THIRD, the Borrower may apply any remainder Net Cash Sale Proceeds from such TV Asset Sale in excess of the Net Cash Sale Proceeds applied pursuant to clauses (i) and (ii) above to prepay or redeem the HoldCo Floating Rate Notes (including any amounts applied to the offer described in clause (ii) above and not accepted by the holders of the Refinancing Notes). The provisions of ss.4.2(a) relating to the Borrower's reinvestment rights in connection with an Asset Sale or Asset Swap shall apply MUTATIS MUTANDIS with respect to the receipt of Net Cash Sale Proceeds from a TV Asset Sale so that the Borrower may have the same reinvestment rights, subject to the same limitations, with respect to a TV Asset Sale as it would be entitled to with respect to any other Asset Sale or Asset Swap." -5- SECTION 3. AMENDMENT TO SECTION 4.4 OF THE CREDIT AGREEMENT. Section 4.4 of the Credit Agreement is hereby amended by deleting such section in its entirety and restating it as follows: "4.4 PROCEEDS OF SUBORDINATED DEBT ISSUANCES. If the Borrower or any Subsidiary receives net cash proceeds from any issuance of Subordinated Debt or if the Parent receives net cash proceeds from any issuance of Indebtedness as set forth in ss.10.13 (other than Indebtedness evidenced by the HoldCo Floating Rate Notes and any refinancing thereof and Subordinated Debt issued to refinance (i) the Subordinated Notes outstanding on the date hereof, (ii) all or any portion of the Senior Discount Notes outstanding on the date hereof and (iii) all or any portion of the Refinancing Notes outstanding on or after the date hereof) and the Senior Leverage Ratio as of the end of the fiscal quarter ended immediately prior to the date of such Subordinated Debt or Indebtedness issuance is greater than 5.00:1.00, the Borrower shall pay to the Administrative Agent for the respective accounts of the Lenders an amount equal to the lesser of (a) one hundred percent (100%) of such net cash proceeds, or (b) that amount necessary to reduce the Senior Leverage Ratio to 5.00:1.00 after giving effect to such prepayment, in each case such amount to be applied to prepay the Loans in the manner set forth in ss.4.5." SECTION 4. AMENDMENT TO SECTION 8.24 OF THE CREDIT AGREEMENT. Section 8.24 of the Credit Agreement is hereby amended by deleting such section in its entirety and restating it as follows: "8.24 EXCLUDED SUBSIDIARIES. The entities set forth in clause (b) of the definition of "Excluded Subsidiaries" do not own or operate any Station, broadcasting business or publishing business within the United States and either own no assets or own only stock of Persons whose primary businesses are owning or operating broadcasting businesses outside the United States. The entity set forth in clause (d) of the definition of "Excluded Subsidiaries" is a fifty-one percent (51%) owned limited liability company. The primary business of Country Sampler Stores LLC is the retail sale of products like those advertised in "Country Sampler Magazine". The Austin Partnership is a Texas limited partnership, 49.69443% of which is owned by the Borrower. RAM is a Texas limited liability company, 50.1% of which is owned by the Borrower. In the event any Excluded Subsidiary after the date hereof holds or acquires TV Assets, such transfer of TV Assets shall have been made in accordance with ss.10.3(k) and with respect to any subsequent transfers of such TV Assets, either the TV Assets or the Net Cash Sale Proceeds thereof shall have been transferred to the Borrower, its Subsidiaries or the Parent." SECTION 5. AMENDMENT TO SECTION 9.14 OF THE CREDIT AGREEMENT. Section 9.14 of the Credit Agreement is hereby amended by deleting such section in its entirety and restating it as follows: -6- "9.14. INTEREST RATE PROTECTION. From time to time after February 27, 2007, so long as the Total Leverage Ratio as of the end of the fiscal quarter most recently ended is greater than or equal to 6.00:1.00, the Borrower shall purchase or enter into interest caps or swaps or other additional interest rate protection agreements as shall be necessary to cap or fix the interest cost to the Borrower with respect to not less than thirty percent (30%) of Consolidated Total Funded Debt outstanding from time to time during any such period thereafter, in each case at rates and on terms and conditions reasonably satisfactory to the Administrative Agent." SECTION 6. AMENDMENT TO SECTION 10.3 OF THE CREDIT AGREEMENT. Section 10.3 of the Credit Agreement is hereby amended by adding the following new CLAUSE (K) immediately after CLAUSE (J) thereof: "(k) Investments in an Excluded Subsidiary in the form of a contribution or transfer to such Excluded Subsidiary of TV Assets with a fair market value in an aggregate amount not to exceed $300,000,000 as determined at the time of contribution which TV Assets shall be, at the time of such contribution or transfer, subject to a binding contract for sale to a Person (other than the Parent or its Subsidiaries or any Excluded Subsidiary), PROVIDED that (i) such sale shall meet the requirements of ss.10.5.2(v)(2), (v)(3) and (v)(5) as if such sale were a TV Asset Sale, (ii) no Default or Event of Default has occurred and is continuing at the time such Investment is made or would result therefrom, (iii) no default or event of default has occurred and is continuing or would result therefrom under the Refinancing Note Documents, (iv) in the event such sale is consummated, the Net Cash Sale Proceeds thereof are transferred to the Borrower or its Subsidiaries and applied in accordance with ss.4.2(b) as Net Cash Sale Proceeds from any TV Asset Sale as if such sale were a TV Asset Sale, and, in the event such sale is not consummated, such TV Assets shall be contributed or transferred to the Borrower or any of its Subsidiaries or such Excluded Subsidiary shall be designated a Subsidiary and shall have complied with ss.9.15;". SECTION 7. AMENDMENTS TO SECTION 10.4 OF THE CREDIT AGREEMENT. (a) Section 10.4 of the Credit Agreement is hereby amended by restating CLAUSE (F) thereof in its entirety as follows: "(f) so long as no Default or Event of Default has occurred and is continuing or would result from such payments and the Borrower delivers to the Administrative Agent a duly executed certificate substantially in the form of EXHIBIT F hereto, the Borrower may make (i) cash Distributions to the Parent to enable it to pay scheduled payments of interest on the Senior Discount Notes, PROVIDED that under no circumstances shall the Borrower make any such Distributions prior to September 15, 2006, (ii) Distributions to the Parent to enable it to pay scheduled dividends on its preferred stock; PROVIDED that in the case of preferred stock issued after the date hereof, contemporaneously with the issuance of such preferred stock (other than preferred stock issued to refinance, -7- replace or redeem outstanding preferred stock), the Borrower received the Net Cash Equity Issuance Proceeds from such Equity Issuance, (iii) Distributions to the Parent to satisfy the Parent's obligations to make payments of the type permitted under clause (e) above, and (iv) cash Distributions to the Parent to enable it to repurchase its Capital Stock; PROVIDED that, in the case of this clause (iv), the Total Leverage Ratio as of the last day of the fiscal quarter most recently ended prior to the proposed date of such repurchase (calculated on a PRO FORMA basis after giving effect to such repurchase) with respect to any repurchase other than the 2005 ECC Stock Tender Offer occurring after the Funding Date, does not exceed the lesser of (A) 6.00:1.00 and (B) 0.50 lower than the then required Total Leverage Ratio, (v) cash Distributions to the Parent to enable it to pay scheduled payments of interest on the HoldCo Floating Rate Notes so long as at the time of such Distribution and after giving effect thereto, the Borrower shall be in compliance with the terms of the Refinancing Note Documents, (vi) cash Distributions to the Parent derived from the Net Cash Sale Proceeds of a TV Asset Sale, after the Borrower's application thereof pursuant to ss.4.2(b)(i), to enable the Parent to repay or redeem all or a portion of the then outstanding aggregate principal amount of the HoldCo Floating Rate Notes in accordance with ss.4.2(b) so long as at the time of such Distribution and after giving effect thereto, the Borrower shall be in compliance with the terms of the Refinancing Note Documents, (vii) cash Distributions to the Parent in an amount equal to the proceeds of dividends received by Borrower or any Subsidiary from an Excluded Subsidiary derived from a sale of TV Assets by such Excluded Subsidiary, after the Borrower's application thereof pursuant to ss.4.2(b)(i), to enable the Parent to repay or redeem all or any portion of the outstanding aggregate principal amount of the HoldCo Floating Rate Notes, and (viii) cash Distributions to the Parent in an amount equal to any capital contributions made by the Parent with proceeds of HoldCo Floating Rate Notes and used by the Borrower to prepay Revolving Credit Loans so long as the aggregate amount of all such Distributions shall not exceed the aggregate amount of such capital contributions." (b) Section 10.4 of the Credit Agreement is hereby further amended by deleting the word "and" at the end of CLAUSE (G) thereof, replacing the period at the end of CLAUSE (H) thereof with a semicolon and the word "and", and adding the following new clause (i) immediately after CLAUSE (H) thereof: "the Borrowers may repay the Refinancing Notes as permitted pursuant to ss.4.2(b)(ii) hereof." SECTION 8. AMENDMENT TO SECTION 10.13 OF THE CREDIT AGREEMENT. Section 10.13 of the Credit Agreement is hereby amended by deleting CLAUSES (C) and (D) thereof in their entirety and restating such CLAUSES (C) and (D) as follows: "(c) incur Indebtedness in respect of the Obligations and Indebtedness evidenced by the Senior Discount Notes and the HoldCo Floating Rate Notes, (d) incur Indebtedness (other than the HoldCo Floating Rate Notes) on or after the Funding Date, PROVIDED that (i) the material terms of such Indebtedness shall be -8- substantially similar or less restrictive than the terms of the Senior Discount Notes and the maturity date of such new Indebtedness shall be at least six (6) months after the later of (x) the Tranche B Maturity Date and (y) the maturity date of any new Tranches established prior to the issuance of such new Indebtedness pursuant to ss.15.1, in each case as reasonably determined by the Administrative Agent (it being understood that such new Indebtedness shall not be deemed more restrictive than the Senior Discount Notes solely because it might bear interest at a higher rate than the rate applicable to the Senior Discount Notes), and (ii) contemporaneously with the receipt by the Parent of cash proceeds from the issuance of any such new Indebtedness, the Parent shall either (I) apply the net cash proceeds received by the Parent from such issuance (net of costs and expenses incurred in connection with such issuance and net of any amounts applied to refinance the Senior Discount Notes or the HoldCo Floating Rate Notes) in accordance with ss.4.4, or (II) make an equity contribution to the Borrower in an amount equal to such net cash proceeds, the amount of such equity contribution to be applied by the Borrower in accordance with ss.4.3,". SECTION 9. AMENDMENTS TO SECTION 11 OF THE CREDIT AGREEMENT. (a) Section 11.1 of the Credit Agreement is hereby amended by restating the table therein in its entirety as follows: ----------------------------------------------------------------------- PERIOD (inclusive of dates) RATIO ----------------------------------------------------------------------- Funding Date - 11/29/04 7.50:1.00 ----------------------------------------------------------------------- 11/30/04 - 8/30/06 7.25:1.00 ----------------------------------------------------------------------- 8/31/06 - 2/27/07 7.00:1.00 ----------------------------------------------------------------------- 2/28/07 - 2/28/08 6.50:1.00 ----------------------------------------------------------------------- 2/29/08 - 2/27/09 6.25:1.00 ----------------------------------------------------------------------- 2/28/09 - 2/27/10 6.00:1.00 ----------------------------------------------------------------------- Thereafter 5.75:1.00 ----------------------------------------------------------------------- (b) Section 11.2 of the Credit Agreement is hereby amended by restating the table therein in its entirety as follows: ----------------------------------------------------------------------- PERIOD (inclusive of dates) RATIO ----------------------------------------------------------------------- Funding Date - 11/29/04 5.50:1.00 ----------------------------------------------------------------------- 11/30/04 - 8/30/06 5.25:1.00 ----------------------------------------------------------------------- 8/31/06 - 2/27/07 5.00:1.00 ----------------------------------------------------------------------- 2/28/07 - 2/28/08 4.50:1.00 ----------------------------------------------------------------------- 2/29/08 - 2/27/09 4.25:1.00 ----------------------------------------------------------------------- 2/28/09 - 2/27/10 4.00:1.00 ----------------------------------------------------------------------- Thereafter 3.75:1.00 ----------------------------------------------------------------------- -9- (c) Section 11.3 of the Credit Agreement is hereby amended by restating the table therein in its entirety and adding the text after such table as follows: ----------------------------------------------------------------------- PERIOD (inclusive of dates) RATIO ----------------------------------------------------------------------- Funding Date - 2/27/05 2.25:1.00 ----------------------------------------------------------------------- 2/28/05 - 11/29/06 1.55:1.00 ----------------------------------------------------------------------- 11/30/06 - 2/27/09 1.65:1.00 ----------------------------------------------------------------------- Thereafter 1.75:1.00 ----------------------------------------------------------------------- "Notwithstanding the foregoing table, the Interest Coverage Ratio levels as in effect prior to the First Amendment Effective Date will remain in effect for any Reference Period ending prior to the First Amendment Effective Date." (d) Section 11.4 of the Credit Agreement is hereby amended by restating the table therein in its entirety and adding the text after such table as follows: ----------------------------------------------------------------------- PERIOD (inclusive of dates) RATIO ----------------------------------------------------------------------- Funding Date - 2/27/05 1.25:1.00 ----------------------------------------------------------------------- 2/28/05 - 11/29/06 1.15:1.00 ----------------------------------------------------------------------- 11/30/06 - 2/27/09 1.25:1.00 ----------------------------------------------------------------------- Thereafter 1.35:1.00 ----------------------------------------------------------------------- "Notwithstanding the foregoing table, the Fixed Charge Coverage Ratio levels as in effect prior to the First Amendment Effective Date will remain in effect for any Reference Period ending prior to the First Amendment Effective Date." SECTION 10. [RESERVED.] SECTION 11. AMENDMENTS TO SECTION 14.1 OF THE CREDIT AGREEMENT. (a) Section 14.1 of the Credit Agreement is hereby amended by deleting CLAUSE (R) in its entirety and restating it as follows: "(r) at any time, (i) any of the Subsidiaries or Excluded Subsidiaries shall provide a guaranty of the Parent's obligations under the Senior Discount Notes or the HoldCo Floating Rate Notes, or (ii) any of the Subsidiaries shall provide a guaranty of the Borrower's obligations under the Subordinated Notes or the Refinancing Notes, as applicable, or any other Subordinated Debt if such Subsidiary is not at such time guarantying the Obligations pursuant to the Guaranty or if such guaranty of the Borrower's obligations under the Subordinated Notes, the Refinancing Notes or such other Subordinated Debt, as applicable, is not subordinated to such Subsidiary's Obligations under the Guaranty;". -10- (b) Section 14.1 of the Credit Agreement is hereby further amended by deleting CLAUSE (W) in its entirety and restating it as follows: "(w) any "DEFAULT" or "EVENT OF DEFAULT" under the Senior Discount Notes or any default or event of default shall have occurred under any agreement, document or instrument governing Indebtedness of the Parent in excess of $5,000,000 for money borrowed or for bonds, debentures, notes or similar instruments." (c) Section 14.1 of the Credit Agreement is hereby further amended by adding the following new CLAUSE (Z) immediately after CLAUSE (Y) thereof: "(z) the conveyance, sale, lease, license or other disposition, directly or indirectly of any TV Asset by an Excluded Subsidiary to a Person (other than the Parent or its Subsidiaries or an Excluded Subsidiary) if the Net Cash Sale Proceeds of which are not transferred to the Borrower or its Subsidiaries and applied in accordance with ss.4.2(b) as Net Cash Sale Proceeds from any TV Asset Sale as if such sale were a TV Asset Sale;". SECTION 12. AMENDMENT TO SECTION 15.1 OF THE CREDIT AGREEMENT. Section 15.1 of the Credit Agreement is hereby amended by deleting CLAUSE 6(C) thereof in its entirety and restating it as follows: "(C) any Revolving Credit Loans made hereunder shall constitute permitted indebtedness under each of the Subordinated Note Indenture, the Senior Discount Note Indenture, the Refinancing Note Indenture and the HoldCo Floating Rate Note Indenture, as applicable, without requiring the Borrower or the Parent, as applicable, to demonstrate compliance with any leverage ratio incurrence covenants contained in the Subordinated Note Indenture, the Senior Discount Note Indenture, the Refinancing Note Indenture and the HoldCo Floating Rate Note Indenture, as applicable." SECTION 13. CONDITIONS TO EFFECTIVENESS. This Amendment shall become effective upon the satisfaction of each of the following conditions precedent: (a) the Administrative Agent shall have received a counterpart signature page to this Amendment duly executed and delivered by the Borrower, the Parent, and the Required Lenders; (b) the Borrower shall have paid to the Administrative Agent, for the PRO RATA account of each of the Lenders which shall have returned to the Administrative Agent an executed signature page to this Amendment on or prior to May 26, 2005, an amendment fee in an amount equal to fifteen hundredths of one percent (0.15%) of the aggregate amount of such Lenders' Commitment; (c) the Administrative Agent shall have received evidence reasonably satisfactory to the Administrative Agent that all corporate action necessary for the valid -11- execution, delivery and performance by the Borrower and the Parent, as applicable, of (i) this Amendment and the transactions contemplated hereby and (ii) the HoldCo Floating Rate Note Documents and the transactions contemplated thereby, shall have been duly and effectively taken; (d) the Administrative Agent shall have received a copy, certified by a duly authorized officer of the Parent to be true and complete on the date hereof, of the HoldCo Floating Rate Note Indenture and all documents executed and delivered by the Parent in connection therewith; (e) the Administrative Agent shall have received copies of all legal opinions executed and delivered by counsel to the Parent in connection with the issuance of the HoldCo Floating Rate Notes, which opinions shall provide that the Agents and the Lenders may rely on each such legal opinion, other than opinions relating to Section 10(b)(5) of the Securities Act of 1934 (or if such legal opinions do not contain such a provision, the Administrative Agent shall also receive a reliance letter addressed to the Agents and the Lenders in form and substance reasonably satisfactory to the Administrative Agent with respect to each such legal opinion); and (f) contemporaneously upon the earlier of (i) the issuance of the HoldCo Floating Rate Notes, or (ii) the effectiveness of the first purchase of Capital Stock under the 2005 ECC Stock Tender Offer. SECTION 14. AFFIRMATION OF BORROWER AND PARENT. The Borrower and the Parent each hereby affirm 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. SECTION 15 REPRESENTATIONS AND WARRANTIES. The Borrower and the Parent each hereby represent and warrant to the Lenders and the Administrative Agent as follows: (a) REPRESENTATIONS AND WARRANTIES. Each of the representations and warranties contained in ss.8 of the Credit Agreement were true and correct in all material 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 of changes resulting from transactions contemplated or permitted by the Credit Agreement and the other Loan Documents, changes occurring in the ordinary course of business that singly or in the aggregate are not materially adverse and to the extent that such representations and warranties relate specifically to a prior date. (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 -12- 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. 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 Borrower and the Parent of this Amendment or from the consummation of the transactions contemplated herein. SECTION 16. 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 Borrower or the Parent 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 the Lenders 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. SECTION 17. 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. SECTION 18. MISCELLANEOUS. This Amendment shall for all purposes be construed in accordance with and governed by the 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 out-of-pocket costs and expenses incurred or sustained by the Administrative Agent in connection with the preparation of this Amendment, including reasonable legal fees. [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. EMMIS OPERATING COMPANY, as Borrower By: /s/ J. Scott Enright ------------------------------- Name: J. Scott Enright Title: Vice President EMMIS COMMUNICATIONS CORPORATION, as Parent By: /s/ J. Scott Enright ------------------------------- Name: J. Scott Enright Title: Vice President Each of the undersigned Subsidiaries hereby (a) acknowledges the foregoing Amendment and (b) ratifies and confirms all of its obligations under the Guaranty and under each of the other Loan Documents to which it is a party. EMMIS RADIO LICENSE, LLC EMMIS RADIO, LLC EMMIS TELEVISION LICENSE, LLC EMMIS INTERNATIONAL BROADCASTING CORPORATION EMMIS RADIO LICENSE CORPORATION OF NEW YORK EMMIS TELEVISION LICENSE CORPORATION OF WICHITA EMMIS TELEVISION LICENSE CORPORATION OF TOPEKA EMMIS MEADOWLANDS CORPORATION EMMIS PUBLISHING CORPORATION LOS ANGELES MAGAZINE HOLDING COMPANY, INC. MEDIATEX COMMUNICATIONS CORPORATION SJL OF KANSAS CORP. TOPEKA TELEVISION CORPORATION By: /s/ J. Scott Enright ------------------------------- Name: J. Scott Enright Title: Vice President EMMIS INDIANA BROADCASTING, L.P. EMMIS TELEVISION BROADCASTING, L.P. EMMIS PUBLISHING, L.P. By: Emmis Operating Company, its General Partner By: /s/ J. Scott Enright ------------------------------- Name: J. Scott Enright Title: Vice President EMMIS RADIO CORPORATION (f/k/a Emmis Broadcasting Corporation of New York) By: /s/ J. Scott Enright ------------------------------- Name: J. Scott Enright Title: Vice President EMMIS SOUTH AMERICA BROADCASTING CORPORATION EMMIS LATIN AMERICA BROADCASTING CORPORATION By: /s/ J. Scott Enright ------------------------------- Name: J. Scott Enright Title: Vice President EMMIS LICENSE CORPORATION EMMIS RADIO LICENSE CORPORATION (f/k/a Emmis FM License Corporation of St. Louis) EMMIS LICENSE CORPORATION OF NEW YORK EMMIS TELEVISION LICENSE CORPORATION (f/k/a Emmis Television License Corporation of Honolulu) By: /s/ J. Scott Enright ------------------------------- Name: J. Scott Enright Title: Vice President BANK OF AMERICA N.A. By: /s/ Kip Davis ------------------------------- Name: Kip Davis Title: Sr. Vice President GOLDMAN SACHS CREDIT PARTNERS, L.P. By: /s/ Bruce Mendelsohn ------------------------------- Name: Bruce Mendelsohn Title: Authorized Signatory WACHOVIA BANK, N.A. By: /s/ Russ Lyons ------------------------------- Name: Russ Lyons Title: Director DEUTSCHE BANK TRUST COMPANY AMERICAS By: /s/ Susan L. LeFevre ------------------------------- Name: Susan L. LeFevre Title: Director By: /s/ Carin Keegan ------------------------------- Name: Carin Keegan Title: Vice President CREDIT SUISSE, CAYMAN ISLANDS BRANCH, (FORMERLY KNOWN AS CREDIT SUISSE FIRST BOSTON, ACTING THROUGH ITS CAYMAN ISLANDS BRANCH) By: /s/ Jay Chall ------------------------------- Name: Jay Chall Title: Director By: /s/ Doreen Barr ------------------------------- Name: Doreen Barr Title: Associate -----END PRIVACY-ENHANCED MESSAGE-----