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EXHIBIT 10.7
SIXTH AMENDMENT TO CREDIT AGREEMENT
THIS SIXTH AMENDMENT TO CREDIT AGREEMENT, dated as of December 15, 2000
(this "Amendment" or this "Sixth Amendment"), is by and between THE XXXXXXXX
GROUP, INC., a Delaware corporation (the "Borrower"), certain financial
institutions party to the Credit Agreement (as hereinafter defined), and FIRST
UNION NATIONAL BANK, a national banking association, as administrative agent for
the Lenders (the "Administrative Agent"), FLEET BANK, N.A. as documentation
agent ("Documentation Agent"), and KEYBANK NATIONAL ASSOCIATION, as co-agent
(the "Co-Agent").
This Amendment amends that certain Credit Agreement, dated as of January
22, 1999, between the Borrower, the Lenders, the Administrative Agent, the
Documentation Agent and the Co-Agent (as previously amended, the "Credit
Agreement"). All capitalized terms not otherwise defined in this Amendment shall
have the meanings assigned to them in the Credit Agreement.
RECITALS
A. The Borrower has requested an extension of the waiver granted in the
Fifth Amendment to Credit Agreement dated as of July 31, 2000 (the "Fifth
Amendment") with respect to Section 7.1(a) of the Credit Agreement, as well as
additional waivers with respect to Sections 7.1(b) and 7.2 of the Credit
Agreement, and a waiver of Section 6.11 with respect only to iKnow Bakersfield,
LLC, a recently formed Subsidiary of Xxxxxxxx Interactive Media, Inc.
B. The parties further desire to amend, for the period from the
Effective Date (as defined herein) to but not including March 15, 2001, the
definition of "Applicable Margin Percentage."
C. The Required Lenders are willing to grant such waiver, and the
parties are willing to so amend the Credit Agreement, on the terms and
conditions set forth herein.
STATEMENT OF AGREEMENT
NOW, THEREFORE, in consideration of the mutual covenants contained
herein and in the Credit Agreement, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
each of the Borrower and the Required Lenders hereby agree as follows:
ARTICLE I.
AMENDMENTS AND WAIVERS UNDER THE CREDIT AGREEMENT
1.1 FINANCIAL COVENANTS. As of the Effective Date (as defined in Section
3.7), the Required Lenders and the Borrower agree that with respect to Sections
7.1(a), 7.1(b) and 7.2 of the Credit Agreement: (a) compliance by the Borrower
with the requirements of Sections 7.1(a), 7.1(b) and 7.2 (and any Default or
Event of Default resulting from the Borrower's failure to comply during such
period with the original terms of such Sections) are waived for the period from
December 15, 2000, to but not including the later of March 15, 2001 and the
Certificate Date (as defined below); (b) on or before March 15, 2001, the
Borrower shall provide to the Administrative Agent a certificate
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executed by a Financial Officer of the Borrower (the date such certificate is
provided to the Administrative Agent being the "Certificate Date") satisfactory
in form and substance to the Administrative Agent, setting forth a pro forma
calculation of the Leverage Ratio, the Senior Leverage Ratio and the Interest
Coverage Ratio (using for purposes of this Section 1.1: (i) Consolidated Funded
Debt and Consolidated Senior Funded Debt as of the Certificate Date, (ii) pro
forma Consolidated EBITDA for the four consecutive fiscal quarters ended
December 31, 2000 and (iii) pro forma Consolidated Interest Expense for the four
consecutive fiscal quarters ended December 31, 2000 (taking into account any
Asset Dispositions completed by the Borrower and its Subsidiaries during the
period following December 31, 2000 and ending on the earlier of March 15, 2001
and the Certificate Date, and the making of mandatory prepayments of Loans under
the Credit Agreement and this Sixth Amendment in connection therewith), and such
pro forma calculation of the Leverage Ratio and the Senior Leverage Ratio shall
be no greater than 6.00:1.00 and 3.75:1.00, respectively, and such pro forma
calculation of the Interest Coverage Ratio shall be no less than 1.75:1.00, in
all of which cases the Borrower shall be deemed to be in compliance with
Sections 7.1(a), 7.1(b) and 7.2 for the period from and including the
Certificate Date, to but not including March 31, 2001; and (c) the Borrower
shall be in compliance with Sections 7.1(a), 7.1(b) and 7.2 as provided in the
terms of the Credit Agreement, as in effect immediately prior to the
effectiveness of the Fifth Amendment, during all periods from and after March
31, 2001. The failure of the Borrower to be in full and timely compliance with
clauses (b) and (c) of this Section 1.1 shall be an immediate Event of Default
for all purposes of the Credit Documents.
1.2 APPLICABLE MARGIN PERCENTAGE. During the period from the Effective
Date to but not including the Certificate Date only, the Applicable Margin
Percentage for Base Rate Term and Revolving Loans shall be 2.500% and the
Applicable Margin Percentage for LIBOR Term and Revolving Loans shall be 3.500%.
As of the Certificate Date, in the event the certificate required by Section 1.1
is timely delivered and the ratios calculated in the certificate comply with the
requirements set forth in Section 1.1(b) above, the Applicable Margin Percentage
for Base Rate Term and Revolving Loans and the Applicable Margin Percentage for
LIBOR Term and Revolving Loans shall be determined under the definition of
"Applicable Margin Percentage" as in effect immediately prior to the effective
date of the Fifth Amendment (it being understood that (i) in such event, such
reduction in pricing shall be deemed to take effect only as of the Certificate
Date and not retroactively, and (ii) in the event that a certificate is not
supplied pursuant to Section 1.1 by March 15, 2001 complying with the
requirements set forth in Section 1.1(b) above, then the Loans shall bear
interest as provided in Section 2.8(b) of the Credit Agreement).
1.3 SALE OF SPORTS ASSETS. The Required Lenders agree that the Borrower
may sell the Seattle SuperSonics sports franchise and other sports entertainment
assets to be approved by the Administrative Agent (the "SuperSonics Sale") for
an amount which will provide gross cash proceeds to the Borrower by March 15,
2001 of not less than $190,000,000, which amount shall be calculated before
taking into account (i) normal and customary prorations and associated
liabilities allocated to the Borrower as seller, and (ii) customary transaction
costs and expenses of Borrower as seller, on terms and conditions to be approved
by the Administrative Agent; provided that after effecting such sale, the
Borrower shall be in compliance with all terms of the Credit Documents and no
Default or Event of Default shall have occurred. This Section 1.3 shall be
deemed a consent by the Required Lenders to such sale (subject to the approvals
of the Administrative Agent of the matters required hereby) for purposes of
Section 8.4 of the Credit Agreement. Upon signing the letter of intent for the
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sale transaction, the Borrower will provide the Administrative Agent with an
analysis of the prorations and a description of the disposition (if any) of the
liabilities in connection with the sale, in form and substance reasonably
acceptable to the Administrative Agent. The Borrower hereby agrees to apply the
entire Net Cash Proceeds (as defined in the Credit Agreement, except that for
purposes of the SuperSonics Sale only, income tax and transfer taxes under
clause (iii)(z) of such definition shall not be deducted in the calculation of
Net Cash Proceeds) upon closing of the sale to (i) prepayment of the Term Loans
as required by Section 2.6(h) of the Credit Agreement, until all Term Loans are
repaid in full, and (ii) then, to prepayment of the Revolving Loans, until all
Revolving Loans are repaid in full, with a corresponding reduction of the
Revolving Credit Commitments as provided in Section 2.6(h) of the Credit
Agreement; provided that, as contemplated by Section 2.6(f) of the Credit
Agreement, the Revolving Credit Commitments shall not be reduced pursuant to
clause (ii) above below $75,000,000 even if all the Revolving Loans are prepaid
in full pursuant to such clause. As of the Effective Date (as defined in Section
3.7), the delayed-draw Unutilized Term Loan Commitments under the Third
Amendment shall be reduced to $5,000,000.
1.4 ADDITIONAL SECURITY. As of the Effective Date, the Required Lenders
and the Borrower agree that with respect only to iKnow Bakersfield, LLC,
compliance by the Borrower with the requirements of Section 6.11 and any Default
or Event of Default resulting from the Borrower's failure to comply with the
terms of such Section are waived, except that the Required Lenders waive such
compliance with Section 6.11 only for the period from September 11, 2000, to but
not including March 15, 2001.
1.5 NO OTHER WAIVERS OR MODIFICATIONS. Except as expressly waived and
modified in Sections 1.1, 1.2, 1.3 and 1.4 of this Sixth Amendment, the Credit
Documents shall continue in full force and effect in the form in effect
immediately prior to the Effective Date and no other modification or waiver of
the Credit Documents shall be deemed effected hereby.
ARTICLE II.
REPRESENTATIONS AND WARRANTIES
The Borrower hereby certifies and warrants to the Administrative Agent
and the Lenders that after giving effect to the amendments and waivers effected
hereby: (a) each of the representations and warranties contained in ARTICLE V of
the Credit Agreement and in the other Credit Documents are true and correct as
of the Effective Date with the same effect as though made on the date hereof,
(except to the extent any such representation or warranty is expressly stated to
have been made as of a specific date, in which case such representation or
warranty shall be true and correct as of such specified date), and (b) no
Default or Event of Default shall have occurred and be continuing on the
Effective Date.
ARTICLE III.
GENERAL
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3.1. FULL FORCE AND EFFECT. The Credit Agreement, as expressly amended,
modified and waived hereby, shall continue in full force and effect in
accordance with the provisions thereof as in effect immediately prior to the
Effective Date. As used in the Credit Agreement, "hereinafter," "hereto,"
"hereof," and words of similar import shall from and after the Effective Date,
unless the context otherwise requires, mean the Credit Agreement after amendment
by this Amendment.
3.2 APPLICABLE LAW. This Amendment shall be governed by and construed in
accordance with the internal laws and judicial decisions of the State of North
Carolina.
3.3 COUNTERPARTS. This Amendment may be executed in two or more
counterparts, each of which shall constitute an original, but all of which when
taken together shall constitute but one instrument.
3.4 EXPENSES. The Borrower agrees to pay all reasonable out-of-pocket
expenses incurred by the Administrative Agent in connection with the
preparation, execution and delivery of this Amendment, including without
limitation all reasonable attorneys' fees.
3.5 FURTHER ASSURANCES. The Borrower shall execute and deliver to
Administrative Agent such documents, certificates and opinions as the
Administrative Agent may reasonably request to effect the amendment contemplated
by this Amendment and to continue the existence, perfection and first priority
of the Administrative Agent's security interests in the Collateral.
3.6 HEADINGS. The headings of this Amendment are for the purposes of
reference only and shall not affect the construction of this Amendment.
3.7 EFFECTIVENESS. This Amendment shall become effective (the date the
following conditions are first satisfied being the "Effective Date") upon (i)
the execution of a counterpart hereof by the Borrower, the Administrative Agent
and the Required Lenders, (ii) the execution of the Acknowledgement of Guaranty
attached hereto by each of the Guarantors, (iii) the execution by the Borrower
of a fee letter with the Administrative Agent, satisfactory in form and
substance to the Administrative Agent (the "Fee Letter'), (iv) receipt by the
Administrative Agent of such executed counterparts, acknowledgement and Fee
Letter, and (v) receipt by the Administrative Agent of the fees required to be
paid pursuant to the Fee Letter.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed and delivered by their duly authorized officers all as of the date
first above written.
THE XXXXXXXX GROUP, INC.
By:
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Name:
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Title:
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(signatures continued)
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FIRST UNION NATIONAL BANK,
as Administrative Agent and as a Lender
By:
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Name:
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Title:
---------------------------------
(signatures continued)
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FLEET BANK, N.A.,
as Documentation Agent and a Lender
By:
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Name:
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Title:
---------------------------------
(signatures continued)
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KEYBANK NATIONAL ASSOCIATION,
as Co-Agent and as a Lender
By:
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Name:
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Title:
---------------------------------
(signatures continued)
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U.S. BANK NATIONAL ASSOCIATION
By:
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Name:
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Title:
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(signatures continued)
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BANK OF AMERICA, N.A.
By:
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Name:
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Title:
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(signatures continued)
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XXX XXXX XX XXXX XXXXXX
By:
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Name:
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Title:
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(signatures continued)
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DRESDNER BANK AG, NEW YORK & GRAND CAYMAN
BRANCHES
By:
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Name:
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Title:
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By:
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Name:
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Title:
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(signatures continued)
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THE CIT GROUP/EQUIPMENT FINANCING, INC.
By:
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Name:
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Title:
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(signatures continued)
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BNP PARIBAS
By:
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Name:
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Title:
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By:
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Name:
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Title:
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(signatures continued)
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FIRST HAWAIIAN BANK
By:
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Name:
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Title:
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(signatures continued)
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CITIZENS BANK OF MASSACHUSETTS
By:
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Name:
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Title:
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(signatures continued)
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CREDIT INDUSTRIEL ET COMMERCIAL
By:
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Name:
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Title:
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By:
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Name:
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Title:
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(signatures continued)
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MICHIGAN NATIONAL BANK
By:
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Name:
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Title:
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(signatures continued)
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WASHINGTON MUTUAL BANK
(DBA WESTERN BANK)
By:
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Name:
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Title:
---------------------------------
(signatures continued)
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NATEXIS BANQUE
By:
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Name:
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Title:
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By:
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Name:
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Title:
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ACKNOWLEDGEMENT OF GUARANTY
Each of the undersigned, as a guarantor of the Obligations of The Xxxxxxxx
Group, Inc. (the "Company") under the Credit Agreement, dated as of January 22,
1999, among the Company, certain financial institutions party thereto, First
Union National Bank, in its capacity as administrative agent, Fleet Bank, N.A.,
in its capacity as documentation agent, and KeyBank National Association, as
Co-Agent (as amended, the "Credit Agreement"), hereby consents to the foregoing
Sixth Amendment to Credit Agreement, and further waives any defense to its
guaranty liability occasioned by such amendment. The foregoing consent and
waiver of the undersigned is made as of effective date of the date of the Sixth
Amendment.
XXXXXXXX MEDIA GROUP, INC. XXXXXXXX COMMUNICATIONS OF
MASSACHUSETTS, INC.
By: By:
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Name: Name:
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Title: Title:
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KVOS TV, LTD. CENTRAL NEW YORK NEWS, INC.
By: By:
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Name: Name:
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Title: Title:
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AK FLORIDA OUTDOOR, INC. TC AVIATION, INC.
By: By:
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Name: Name:
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Title: Title:
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XXXXXXXX INTERACTIVE MEDIA, INC. AK MOBILE TELEVISION, INC.
By: By:
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Name: Name:
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Title: Title:
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XXXXXXXX VENTURES, INC. XXXXXXXX BROADCASTING FRESNO, LLC
By: By:
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Name: Name:
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Title: Title:
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