EXHIBIT 10.81
LIMITED WAIVER, CONSENT AND SEVENTH AMENDMENT
TO CREDIT AGREEMENT
THIS LIMITED WAIVER, CONSENT AND SEVENTH AMENDMENT TO CREDIT AGREEMENT
(this "Amendment") is dated as of September 5, 2003, among QUORUM BROADCASTING
COMPANY, INC., a Delaware corporation ("Quorum I"), QUORUM BROADCASTING COMPANY,
LLC, a Delaware limited liability company ("Quorum II"), VHR BROADCASTING, INC.,
a Tennessee corporation ("VHR"), and MISSION BROADCASTING OF AMARILLO, INC., a
Delaware corporation ("Mission", and together with Quorum I, Quorum II and VHR,
each a "Borrower" and collectively the "Borrowers"), QUORUM BROADCAST HOLDINGS,
LLC, a Delaware limited liability company ("Parent I"), QUORUM BROADCAST
HOLDINGS, INC., a Delaware corporation ("Parent II", and together with Parent I,
each a "Parent" and collectively the "Parents"), the Lenders (as such term is
defined in the hereinafter described Credit Agreement), and BANK OF AMERICA,
N.A., as Administrative Agent for the Lenders (in such capacity, the
"Administrative Agent").
R E C I T A L S:
A. The Borrowers, the Parents, the Administrative Agent, Union Bank
of California, N.A., as Managing Agent and Documentation Agent, and the several
Lenders parties thereto entered into that certain Credit Agreement, dated as of
April 16, 1999 (as amended through the date hereof, and as may be further
amended, modified, restated, supplemented, renewed, extended, increased,
rearranged or substituted from time to time, the "Credit Agreement").
Capitalized terms used and not otherwise defined herein shall have the meanings
ascribed to them in the Credit Agreement.
B. The Borrowers, the Administrative Agent and certain Lenders
party thereto entered into that certain letter agreement, dated as of March 26,
2003 (the "Consent") by which the Majority Lenders consented to the sale of
certain assets of Quorum Broadcasting of Indiana, Inc. and Quorum of Indiana
License, LLC to GNS Media Evansville, Inc. (the "Divestiture").
C. The Borrowers have requested that the Lenders make certain
amendments to the Credit Agreement as described herein to provide, among other
things, modification of the scheduled amortization of the Loans and modification
of certain financial covenants.
D. The Borrowers have requested that the Lenders waive compliance
with certain financial covenants set forth in the Credit Agreement and remove
the "Drop Dead Date" as defined in the Consent.
E. The Borrowers have requested that the Lenders consent to (i)
Parent I entering into a merger agreement with Nexstar Broadcasting Group, LLC
("Nexstar") (the "Merger Agreement") and (ii) Parent I, on behalf of itself and
all of its Subsidiaries (including the Borrowers) entering into an operating
agreement with Nexstar Management, Inc. ("NMI") in connection therewith, setting
forth certain rights and obligations of Parent I and its Subsidiaries
and NMI with respect to the operation and management of the Borrowers during the
executory period of the Merger Agreement (the "Operating Agreement").
F. The Lenders are willing to (i) make the requested amendments to
the Credit Agreement, (ii) grant the requested waiver and remove the Drop Dead
Date from the Consent, and (iii) consent to Parent I entering into the Merger
Agreement and the Operating Agreement, all as set forth herein, subject in each
case to the performance and observance in full of each of the covenants, terms
and conditions, and in reliance upon all of the representations and warranties
of the Parents and the Borrowers set forth herein.
NOW, THEREFORE, in consideration of the premises and the covenants,
terms, conditions, representations and warranties herein contained, the parties
hereto agree hereby as follows:
Section 1. AMENDMENTS TO CREDIT AGREEMENT
Subject to the covenants, terms and conditions set forth herein and in
reliance upon the representations and warranties of the Parents and the
Borrowers herein contained, the Parents, the Borrowers and the Lenders hereby
agree to amend the Credit Agreement as set forth in this Section 1.
(a) Amendment to Section 1.1. Effective as of the Amendment
Effective Date, Section 1.1 of the Credit Agreement is amended by inserting the
following additional definitions in appropriate alphabetical order therein:
"Additional Margin": Commencing January 1, 2004, and
continuing through and including the earlier of (a) June 30,
2004, or (b) the date upon which the outstanding principal
balance of the Loans has been reduced to $73,000,000 or less,
0.50%. Commencing July 1, 2004, and continuing through and
including the earlier of (a) December 31, 2004, or (b) the date
upon which the outstanding principal balance of the Loans has
been reduced to $73,000,000 or less, 1.00%.
"Consent": That certain letter agreement dated as of
March 26, 2003, among the Borrowers, the Administrative Agent,
and the Lenders party thereto pursuant to which Majority Lenders
consented to the Divestiture, as amended from time to time.
"Divestiture": The sale of certain assets of Quorum
Broadcasting of Indiana, Inc. and Quorum of Indiana License,
LLC, to GNS Media Evansville, Inc. pursuant to an Asset Purchase
Agreement dated as of April 1, 2003, as amended from time to
time pursuant to amendments permitted by the Consent.
"Sixth Amendment": That certain Sixth Amendment to
Credit Agreement dated as of June 19, 2003, executed by and
among the Borrowers, the Parents, the Administrative Agent and
the Lenders.
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(b) Further Amendment to Section 1.1. Effective as of the Amendment
Effective Date, Section 1.1 of the Credit Agreement is amended by amending and
restating the following definitions in their entirety, as follows:
"Applicable Margin": With respect to each Eurodollar
Loan at any date, 4.50%, per annum, and with respect to each
Base Rate Loan at any date, 3.25%, per annum; provided that, if
the outstanding principal balance of the Loans has not been
reduced to $73,000,000 or less prior to January 1, 2004, then
commencing January 1, 2004, the Applicable Margin with respect
to each Eurodollar Loan at any date shall be 4.50%, per annum,
plus the applicable Additional Margin, if any, and the
Applicable Margin with respect to each Base Rate Loan at any
date shall be 3.25%, per annum, plus the applicable Additional
Margin, if any.
"Combined Consolidated Fixed Charges": For any period,
the sum obtained by adding together the Consolidated Fixed
Charges of each of Parent I, VHR and Mission for such period.
"Consolidated Capital Expenditures": for any period, for
any Person, the aggregate of all expenditures by such Person and
its Subsidiaries for such period which should be capitalized
according to GAAP on a consolidated balance sheet of such Person
and its Subsidiaries, including all expenditures with respect to
fixed or capital assets which should be so capitalized and,
without duplication, the amount of all Capital Lease
Obligations; it being understood that "Consolidated Capital
Expenditures" shall not include, without duplication, (i)
payments made or accrued in respect of Consolidated Film Payment
Obligations of such Person, or (ii) payments made by such Person
for repairs or replacement of tower equipment of the Quorum
Entities which was damaged at the Springfield, Missouri station
in December 2001 or for repairs or replacement of broadcasting
equipment of the Quorum Entities damaged at the Monroe,
Louisiana station during 2002.
"Consolidated Fixed Charges": For any period, for any
Person, the sum of (i) Consolidated Debt Service of such Person
for such period, plus (ii) the Consolidated Capital Expenditures
of such Person during such period, plus (iii) the Consolidated
Income Tax Expense of such Person for such period.
(c) Amendment to Section 2.4(c). Effective as of the Amendment
Effective Date, Section 2.4(c) of the Credit Agreement is deleted in its
entirety and is replaced with the following in lieu thereof:
(c) Each Term B Loan shall mature, and the outstanding
principal amount thereof shall be due and payable (together with
interest accrued thereon), on the Term B Maturity Date. In
addition, on the last day of each Fiscal Quarter, commencing on
September 30, 2003, and ending on December 31, 2004, VHR
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shall repay, and there shall become due and payable, a principal
installment on the Term B Loans in the amounts set forth below
opposite the payment date:
PAYMENT DATE PAYMENT AMOUNT
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September 30, 2003 $ 843,000
December 31, 2003 $ 843,000
March 31, 2004 $ 1,967,000
June 30, 2004 $ 1,405,000
September 30, 2004 $ 2,251,000
December 31, 2004 All remaining outstanding
principal, together with accrued
and unpaid interest
(d) Amendment to Section 2.4(e). Effective as of the Amendment
Effective Date, Section 2.4(e) of the Credit Agreement is deleted in its
entirety and is replaced with the following in lieu thereof:
(e) Each Term C Loan shall mature, and the
outstanding principal amount thereof shall be due and payable
(together with interest accrued thereon), on the Term C Maturity
Date. In addition, on the last day of each Fiscal Quarter,
commencing on September 30, 2003, and ending on December 31,
2004, Mission shall repay, and there shall become due and
payable, a principal installment on the Term C Loans in the
amount set forth below opposite the applicable payment date:
PAYMENT DATE PAYMENT AMOUNT
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September 30, 2003 $ 119,000
December 31, 2003 $ 119,000
March 31, 2004 $ 277,000
June 30, 2004 $ 198,000
September 30, 2004 $ 317,000
December 31, 2004 All remaining outstanding principal,
together with accrued and unpaid
interest
(e) Amendment to Section 4.1(d). Effective as of the Amendment
Effective Date, Section 4.1(d) of the Credit Agreement is deleted in its
entirety and is replaced with the following in lieu thereof:
(d) Interest shall be due and payable in arrears on
each Interest Payment Date; provided that (i) interest accruing
pursuant to Section 4.1(c) shall be payable from time to time on
demand and (ii) payment of interest accruing at the Additional
Margin shall be deferred until the earlier of (A) December 31,
2004,
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or (B) the date on which the Lenders shall receive payment in
full of the Obligations and termination of the Commitments
including outstanding letters of credit.
(f) Amendment to Section 4.2(c). Effective as of the Amendment
Effective Date, clause (i) of Section 4.2(c) of the Credit Agreement is deleted
in its entirety and is replaced with the following in lieu thereof:
(i) the Quorum Borrowers shall make prepayments of
the principal amount of Revolving Credit Loans outstanding at
the end of the Revolving Credit Commitment Period on the last
day of each Fiscal Quarter, commencing on September 30, 2003, in
the amounts set forth below opposite such payment date:
PAYMENT DATE PAYMENT AMOUNT
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September 30, 2003 $ 538,000
December 31, 2003 $ 538,000
March 31, 2004 $ 1,256,000
June 30, 2004 $ 897,000
September 30, 2004 $ 1,432,000
December 31, 2004 All remaining outstanding principal,
together with accrued and unpaid
interest
(g) Amendment to Section 8.1(a). Effective as of the Amendment
Effective Date, Section 8.1(a) of the Credit Agreement is deleted in its
entirety and is replaced with the following in lieu thereof:
(a) Combined Leverage Ratio. Permit the Combined
Leverage Ratio at the end of the applicable Fiscal Quarter
described below to be greater than the ratio set forth opposite
such Fiscal Quarter below:
FISCAL QUARTER ENDING RATIO
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September 30, 2003 8.70 to 1.00
December 31, 2003 8.90 to 1.00
March 31, 2004 8.40 to 1.00
June 30, 2004 7.70 to 1.00
September 30, 2004 7.05 to 1.00
December 31, 2004 6.75 to 1.00
(h) Amendment to Section 8.1(b). Effective as of the Amendment
Effective Date, Section 8.1(b) of the Credit Agreement is deleted in its
entirety and is replaced with the following in lieu thereof:
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(b) Combined Interest Coverage Ratio. Permit the
Combined Interest Coverage Ratio at the end of the applicable
Fiscal Quarter described below to be less than the ratio set
forth opposite such Fiscal Quarter below:
FISCAL QUARTER ENDING RATIO
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September 30, 2003 1.70 to 1.00
December 31, 2003 1.75 to 1.00
March 31, 2004 2.00 to 1.00
June 30, 2004 2.35 to 1.00
September 30, 2004 2.65 to 1.00
December 31, 2004 2.70 to 1.00
(i) Amendment to Section 8.1(c). Effective as of the Amendment
Effective Date, Section 8.1(c) of the Credit Agreement is deleted in its
entirety and is replaced with the following in lieu thereof:
(c) Combined Senior Leverage Ratio. Permit the
Combined Senior Leverage Ratio at the end of the applicable
Fiscal Quarter described below to be greater than the ratio set
forth opposite such Fiscal Quarter below:
FISCAL QUARTER ENDING RATIO
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September 30, 2003 6.50 to 1.00
December 31, 2003 6.55 to 1.00
March 31, 2004 6.10 to 1.00
June 30, 2004 5.50 to 1.00
September 30, 2004 4.95 to 1.00
December 31, 2004 4.65 to 1.00
(j) Amendment to Section 8.1(d). Effective as of the Amendment
Effective Date, Section 8.1(d) of the Credit Agreement is deleted in its
entirety and is replaced with the following in lieu thereof:
(d) Combined Fixed Charge Ratio. Permit the Combined
Fixed Charge Ratio at the end of the applicable Fiscal Quarter
described below to be less than the ratio set forth opposite
such Fiscal Quarter below:
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FISCAL QUARTER ENDING RATIO
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September 30, 2003 0.90 to 1.00
December 31, 2003 0.95 to 1.00
March 31, 2004 0.90 to 1.00
June 30, 2004 1.00 to 1.00
September 30, 2004 1.00 to 1.00
December 31, 2004 0.30 to 1.00
(k) Amendment to Section 8.1(e). Effective as of the Amendment
Effective Date, Section 8.1(e) of the Credit Agreement is deleted in its
entirety and is replaced with the following in lieu thereof:
(e) Combined Consolidated Capital Expenditures
Limitation. (i) Permit Combined Consolidated Capital
Expenditures for the Fiscal Year ending December 31, 2003, to
exceed $2,650,000, nor (ii) permit Combined Consolidated Capital
Expenditures for the Fiscal Year ending December 31, 2004, to
exceed $1,925,000 plus any amounts not in excess of Combined
Consolidated Capital Expenditures that could have been made for
the previous year (in an amount up to $600,000) but were not
made, provided that the first dollars expended in such following
year shall be considered as carried over from the previous year.
(l) Amendment to Section 8.1(h). Effective as of the Amendment
Effective Date, Section 8.1(h) of the Credit Agreement is deleted in its
entirety and is replaced with the following in lieu thereof:
(h) Quarterly Combined Consolidated Operating Cash
Flow. Permit Combined Consolidated Operating Cash Flow for the
period of four consecutive Fiscal Quarters ended on the
applicable date described below to be less than the amount set
forth opposite such date below:
DETERMINATION DATE MINIMUM AMOUNT
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September 30, 2003 $ 16,700,000
December 31, 2003 $ 16,500,000
March 31, 2004 $ 17,100,000
June 30, 2004 $ 18,600,000
September 30, 2004 $ 19,800,000
December 31, 2004 $ 21,300,000
Notwithstanding the above, immediately upon the closing
of the Divestiture, the minimum amount set forth above shall be
reduced by 85% of the projected Consolidated Operating Cash Flow
from such date forward with respect
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to the assets which are the subject of the Divestiture as
reflected in the Borrowers' business plan as received on August
5, 2003, delivered to the Lenders.
(m) Amendment to Section 11.7. Effective as of the Amendment
Effective Date, Section 11.7(a) of the Credit Agreement is deleted in its
entirety and is replaced with the following in lieu thereof:
(a) Notwithstanding Section 4.8, from and after the
Trigger Date (so long as any Event of Default is continuing),
all payments in respect of the Obligations and all proceeds of
any collateral security for or guaranty of the Obligations
received by the Administrative Agent shall be applied by the
Administrative Agent to the Obligations, as follows:
First, to payment of that portion of the Obligations
constituting fees, indemnities, expenses and other amounts owing
with respect to the Loans (including attorney costs and
expenses, financial advisory costs and expenses and amounts
payable under Section 11.5) payable to the Administrative Agent
in its capacity as such;
Second, to payment of that portion of the Obligations
constituting fees, indemnities and other amounts owing with
respect to the Loans (other than principal and interest) payable
to the Lenders (including attorney costs and expenses and
amounts payable under Section 11.5), ratably among them in
proportion to the amounts described in this clause Second
payable to them;
Third, to payment of that portion of the Obligations
constituting accrued and unpaid interest on the Loans and unpaid
Reimbursement Obligations, ratably among the Lenders in
proportion to the respective amounts described in this clause
Third payable to them;
Fourth, to payment of that portion of the Obligations
constituting unpaid principal of the Loans and unpaid
Reimbursement Obligations, ratably among the Lenders in
proportion to the respective amounts described in this clause
Fourth held by them;
Fifth, to the Administrative Agent for the account of
the Issuing Lender, to Cash Collateralize that portion of L/C
Obligations comprised of the aggregate undrawn amount of Letters
of Credit;
Sixth, to the repayment of all other Obligations,
ratably among the Lenders in proportion to the respective
amounts described in this clause Sixth held by them; and
Last, the balance, if any, after all of the Obligations
have been indefeasibly paid in full, to the Borrowers or as
otherwise required by applicable law.
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Amounts used to Cash Collateralize the aggregate undrawn
amount of Letters of Credit pursuant to clause Fifth above shall
be applied to satisfy drawings under such Letters of Credit as
they occur. If any amount remains on deposit as cash collateral
after all Letters of Credit have either been fully drawn or
expired, such remaining amount shall be applied to the other
Obligations, if any, in the order set forth above.
Section 2. LIMITED CONSENT. Subject to the covenants, terms and
conditions set forth in this Amendment, and in reliance upon the representations
and warranties of the Parents and the Borrowers made herein, the Lenders hereby
consent to (a) Parent I entering into the Merger Agreement; provided that such
Merger Agreement (i) requires payment in full of the Obligations, termination of
the Commitments and cancellation of all outstanding Letters of Credit as a
condition precedent to the effectiveness of the merger contemplated thereby and
(ii) provides that no amendment may be made thereto that is material and adverse
to the interests of the Lenders without the written consent of the Majority
Lenders, and (b) Parent I (on behalf of itself, the Borrowers and its other
Subsidiaries) entering into the Operating Agreement; provided that such
Operating Agreement provides that (i) no cash fee payments shall be payable by
Parent I or its Subsidiaries to NMI thereunder prior to Xxxxx 0, 0000, (xx) no
amendment that is material and adverse to the interests of the Borrowers or the
Lenders or that changes the method of determining the management fee thereunder
or the terms of payment may be made thereto without the written consent of the
Majority Lenders, (iii) neither party thereto may assign its rights and
interests therein to any third party without the written consent of the Majority
Lenders, (iv) copies of all notices sent thereunder shall be delivered to the
Administrative Agent, and (v) no cash fee payments shall be payable at any time
that a Default or Event of Default exists, and such Operating Agreement shall
otherwise be upon the terms and conditions set forth in the form of Operating
Agreement attached hereto as Exhibit A. The consents set forth in this Section 2
are limited to the extent specifically set forth above and no other terms,
covenants or provisions of the Credit Agreement are intended to be effected
hereby.
Section 3. LIMITED WAIVER. Subject to the covenants, terms and
conditions set forth in this Amendment, and in reliance upon the representations
and warranties of the Parents and the Borrowers made herein, the Lenders hereby
waive compliance by the Borrowers with (a) the required Combined Leverage Ratio
set forth in Section 8.1(a) of the Credit Agreement at the end of the fiscal
quarter ending on June 30, 2003, (b) the required Combined Senior Leverage Ratio
set forth in Section 8.1(c) of the Credit Agreement at the end of the fiscal
quarter ending on June 30, 2003, (c) the required Combined Fixed Charge Ratio
set forth in Section 8.1(d) of the Credit Agreement at the end of the fiscal
quarter ending on June 30, 2003, and (d) the required Combined Consolidated
Operating Cash Flow set forth in Section 8.1(h) of the Credit Agreement at the
end of the fiscal quarter ending on June 30, 2003 (collectively, the "Specified
Defaults"). The waivers set forth in this Amendment are limited to the extent
specifically set forth above in this Section 3, and no other terms, covenants or
provisions of the Credit Agreement are intended to be waived hereby.
Section 4. AMENDMENT TO CONSENT. Subject to the covenants, terms and
conditions set forth herein and in reliance upon the representations and
warranties of the Parents
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and the Borrowers herein contained, the Parents, the Borrowers and the Lenders
hereby agree to amend the Consent as set forth in this Section 4.
(a) Amendment to Subparagraph (e). Effective as of the Amendment
Effective Date, Subparagraph (e) of the Consent is deleted in its entirety and
is replaced with the following in lieu thereof:
(e) [Intentionally Deleted]
(b) Amendment to Subparagraph (h). Effective as of the Amendment
Effective Date, Subparagraph (h) of the Consent is deleted in its entirety and
is replaced with the following in lieu thereof:
(h) the Borrowers shall comply with Section 10 of
that certain Limited Waiver, Consent and Seventh Amendment to
Credit Agreement dated as of September 5, 2003, executed by and
among the Borrowers, the Administrative Agent and the Lenders;
and
Section 5. AMENDMENT FEE. The Borrowers shall pay to the Administrative
Agent, for the pro rata benefit of each Lender, an amendment fee (the "Amendment
Fee") equal to the product of (a) 0.05% multiplied by (b) an amount equal to the
sum of (i) such Lender's portion of the Revolving Credit Commitment plus (ii)
the aggregate principal amount of the Term B Loan and the Term C Loan owed to
such Lender as of the Amendment Effective Date. The Amendment Fee shall be
earned and due and payable as of the Amendment Effective Date.
Section 6. SIXTH AMENDMENT FEE. Notwithstanding anything in the Sixth
Amendment to the contrary, the amendment fee described in the Sixth Amendment
(the "Sixth Amendment Fee") shall be due and payable as set forth in this
Section 6. The Sixth Amendment Fee shall be equal to the product of (a) 0.20%
multiplied by (b) an amount equal to the sum of (i) such Lender's portion of the
Revolving Credit Commitment plus (ii) the aggregate principal amount of the Term
B Loan and the Term C Loan owed to such Lender, after the application of the
proceeds of the Divestiture to the Loans. The Sixth Amendment Fee shall be
payable from the proceeds of the Divestiture on the closing date of the
Divestiture if such closing occurs on or prior to December 31, 2003; provided
that if the closing of the Divestiture does not occur prior to December 31,
2003, such fee shall in any event be due and payable on the earlier of December
31, 2003, and the date upon which the Lenders shall have received payment in
full of the Obligations and termination of the Commitments including outstanding
letters of credit, and in such event, notwithstanding anything herein to the
contrary, such Sixth Amendment Fee shall be equal to the product of (a) 0.20%
multiplied by (b) an amount equal to the sum of (i) such Lender's portion of the
Revolving Credit Commitment plus (ii) the aggregate principal amount of the Term
B Loan and the Term C Loan owed to such Lender on the date of payment of such
Sixth Amendment Fee.
Section 7. CONTINGENT FEE. The Borrowers shall pay to the Administrative
Agent, for the pro rata benefit of each Lender, an additional amendment fee (the
"Contingent Fee") equal to the product of (a) 1.25% multiplied by (b) an amount
equal to the sum of (i) such
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Lender's portion of the Revolving Credit Commitment plus (ii) the aggregate
principal amount of the Term B Loan and the Term C Loan owed to such Lender as
of the Amendment Effective Date. The Contingent Fee shall be earned and due and
payable as of the Amendment Effective Date; provided that payment thereof shall
be deferred until the earlier of (A) December 31, 2004, or (B) the date upon
which the Lenders shall have received payment in full of the Obligations,
termination of the Commitments and cancellation of all outstanding Letters of
Credit; and provided further that the Contingent Fee shall be forgiven if on or
prior to April 30, 2004, the Lenders shall have received payment in full of the
Obligations and termination of the Commitments including outstanding letters of
credit.
Section 8. RELEASE
(a) Each Borrower, each Parent, and each Subsidiary of Borrowers
(collectively, the "Borrower Parties") hereby unconditionally and irrevocably
remises, acquits, and fully and forever releases and discharges the
Administrative Agent and the Lenders and all respective affiliates and
subsidiaries of the Administrative Agent and the Lenders, their respective
officers, servants, employees, agents, attorneys, financial advisors,
principals, directors and shareholders, and their respective heirs, legal
representatives, successors and assigns (collectively, the "Released Lender
Parties") from any and all claims, demands, causes of action, obligations,
remedies, suits, damages and liabilities (collectively, the "Borrower Claims")
of any nature whatsoever, whether now known, suspected or claimed, whether
arising under common law, in equity or under statute, which any Borrower Party
ever had or now has against the Released Lender Parties which may have arisen at
any time on or prior to the date of this Amendment and which were in any manner
related to any of the Loan Documents, the Loans or Letters of Credit or the
enforcement or attempted enforcement by the Administrative Agent or the Lenders
of rights, remedies or recourses related thereto.
(b) Each Borrower Party covenants and agrees never to commence,
voluntarily aid in any way, prosecute or cause to be commenced or prosecuted
against any of the Released Lender Parties any action or other proceeding based
upon any of the Borrower Claims which may have arisen at any time on or prior to
the date of this Amendment and were in any manner related to any of the Loan
Documents.
(c) The agreements of each Borrower Party set forth in this Section
8 shall survive termination of this Amendment and the other Loan Documents.
Section 9. CONDITIONS PRECEDENT
The terms and conditions contained in this Amendment shall be effective
on the earliest date that each of the following conditions precedent shall have
been satisfied and only if all of the following conditions precedent are
satisfied on or prior to September 30, 2003 (the "Amendment Effective Date"):
(a) Execution and Delivery of this Amendment and other
Documentation. The Administrative Agent shall have received a copy of this
Amendment and any other documentation the Administrative Agent reasonably
requests, executed and delivered by each of
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the Loan Parties and by each of the Lenders, where applicable, in form and
substance satisfactory to the Administrative Agent.
(b) Extension of Evansville Drop-Dead Date. The "Drop-Dead Date", as
defined in the Asset Purchase Agreement executed in connection with the
Divestiture, shall have been extended to a date no earlier than December 30,
2003 upon terms and conditions otherwise consistent with the Asset Purchase
Agreement.
(c) Representations and Warranties. Each of the representations and
warranties made in this Amendment shall be true and correct on and as of the
Amendment Effective Date as if made on and as of such date, both before and
after giving effect to this Amendment.
(d) No Default. Other than the Specified Defaults, no Default or
Event of Default shall have occurred and be continuing, or would result from the
execution of this Amendment, the Loan Documents, or the transactions
contemplated therein.
(e) Fees and Expenses. The Borrowers shall have paid all reasonable
out-of-pocket fees and expenses incurred on or prior to the date of this
Amendment by Administrative Agent or any Lender in connection with the Loan
Documents, including this Amendment, including legal and other professional fees
and expenses, including, without limitation, the reasonable fees and expenses of
Xxxxxxxx Xxxxxxxx & Xxxxxx P.C. and KPMG LLP, in each case for which invoices
have been received prior to the date hereof.
(f) Amendment Fee. The Borrowers shall have paid the Amendment Fee.
Section 10. COVENANTS.
Delivery of Auditors' Opinion and Certificate. The Borrowers shall
furnish to the Administrative Agent (with copies for each of the Lenders), not
later than the fifteenth (15th) day after the Amendment Effective Date, the
unqualified auditors' opinion (or the equivalent thereof) required under Section
7.1(a) of the Credit Agreement for the Borrowers' financial statements for the
fiscal year ended December 31, 2002, and the related certificates described in
Section 7.2(a) of the Credit Agreement. The Borrowers acknowledge and agree that
failure to comply with this Section 10 will result in an immediate Event of
Default with no notice, grace or cure period.
Section 11. REPRESENTATIONS AND WARRANTIES. To induce the Administrative
Agent and the Lenders to enter into this Amendment, the Parents and the
Borrowers jointly and severally represent and warrant to the Administrative
Agent and the Lenders as follows:
(a) Authorization; No Contravention. The execution, delivery and
performance by the Loan Parties of this Amendment and any other documents
executed in connection herewith, have been duly authorized by all necessary
partnership, corporate or limited liability company action, as applicable, and
do not and will not (i) contravene the terms of any Charter Documents of any
Loan Party, (ii) conflict with or result in any breach or contravention of, or
the creation of any Lien under, any document evidencing any Contractual
Obligation to which any Loan Party is
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a party or any order, injunction, writ or decree of any Governmental Authority
to which any Loan Party is a party or its property is subject, or (iii) violate
any Requirement of Law.
(b) Governmental Authorization. No approval, consent, exemption,
authorization or other action by, or notice to, or filing with or approvals
required under state blue sky securities laws or by any Governmental Authority
is necessary or required in connection with the execution, delivery, performance
or enforcement of this Amendment or any other document executed in connection
herewith.
(c) No Default. After giving effect to this Amendment, no Default or
Event of Default exists under any of the Loan Documents. No Loan Party is in
default under or with respect to (i) its Charter Documents or (ii) any material
Contractual Obligation of such Person. The execution, delivery and performance
of this Amendment shall not result in any default under any Contractual
Obligation of any Loan Party in any respect.
(d) Binding Effect. This Amendment and any other documents executed
in connection herewith constitute the legal, valid and binding obligations of
the Loan Parties that are parties thereto, enforceable against such Loan Parties
in accordance with their respective 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 of general
applicability.
(e) Representations and Warranties. The representations and
warranties set forth in the Credit Agreement and the other Loan Documents are
true and correct in all material respects on and as of the Amendment Effective
Date, after giving effect to this Amendment, as if such representations and
warranties were being made on and as of the Amendment Effective Date.
Section 12. MISCELLANEOUS
(a) Ratification and Confirmation of Loan Documents. Except for the
specific amendments expressly set forth in this Amendment, the terms,
provisions, conditions and covenants of the Credit Agreement and the other Loan
Documents remain in full force and effect and are hereby ratified and confirmed,
and the execution, delivery and performance of this Amendment shall not in any
manner operate as a waiver of, consent to or amendment of any other term,
provision, condition or covenant of the Credit Agreement or any other Loan
Document.
(b) Fees and Expenses. The Parents and the Borrowers jointly and
severally agree to pay on demand all reasonable costs and expenses of the
Administrative Agent in connection with the preparation, reproduction,
execution, and delivery of this Amendment and any other documents prepared in
connection herewith, including, without limitation, the reasonable fees and
out-of-pocket expenses of counsel for the Administrative Agent.
(c) Headings. Section and subsection headings in this Amendment are
included herein for convenience of reference only and shall not constitute a
part of this Amendment for any other purpose or be given any substantive effect.
-13-
(d) APPLICABLE LAW. THIS AMENDMENT SHALL BE GOVERNED BY, AND SHALL
BE CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW
YORK, WITHOUT REGARD TO CONFLICTS OF LAW PRINCIPLES.
(e) Counterparts and Amendment Effective Date. This Amendment may be
executed in any number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed and delivered shall be
deemed an original, but all such counterparts together shall constitute but one
and the same instrument; signature pages may be detached from multiple separate
counterparts and attached to a single counterpart so that all signature pages
are physically attached to the same document. This Amendment may be validly
executed and delivered by facsimile or other electronic transmission.
(f) FINAL AGREEMENT. THIS AMENDMENT, TOGETHER WITH THE CREDIT
AGREEMENT AND OTHER LOAN DOCUMENTS, REPRESENTS THE FINAL AGREEMENT BETWEEN THE
PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR
SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL
AGREEMENTS BETWEEN THE PARTIES.
(g) Affirmation of Guarantees. Notwithstanding that such consent is
not required thereunder, each of the Parents, the Borrowers and the Subsidiaries
of the Parents and the Borrowers hereby consent to the execution and delivery of
this Amendment by the parties hereto and reaffirm their respective obligations
under each of their respective Guaranty Agreements.
(h) Liens. Each of the Parents, the Borrowers and the Subsidiaries
agree hereby that all Liens, security interests, assignments, superior titles,
rights, remedies, powers, equities and priorities securing the Obligations
including but not limited to those under the Security Documents are hereby
ratified and confirmed as valid, subsisting and continuing to secure the
Obligations and this Amendment shall not affect the priority of such Liens.
Nothing in this Amendment shall in any manner diminish, impair or extinguish any
of the Liens securing the Obligations, the Guaranty Agreements, or the other
Loan Documents or be construed as a novation in any respect.
(i) Sixth Amendment. The parties hereto acknowledge and agree that
Sections 1(a), (b), (c), (f), (g), (h), (i), (j) and (k) of the Sixth Amendment
have not as of the date hereof become effective and are hereby superceded by the
terms of this Amendment.
[Remainder of page intentionally left blank]
-14-
IN WITNESS WHEREOF, the parties hereto have caused this Seventh
Amendment to Credit Agreement to be duly executed and delivered by their proper
and duly authorized officers effective as of the day and year first above
written.
BORROWERS:
QUORUM BROADCASTING COMPANY, LLC
QUORUM BROADCASTING COMPANY, INC.
By: /s/ Xxxxxxx Xxxxxxx
-------------------------------------
Xxxxxxx Xxxxxxx
Vice President - Finance
VHR BROADCASTING, INC.
By: /s/ Xxxxx X. Xxxxx
-------------------------------------
Xxxxx X. Xxxxx
Chief Financial Officer
MISSION BROADCASTING OF AMARILLO, INC.
By: /s/ Xxxxxx X. Xxxxx
-------------------------------------
Xxxxxx X. Xxxxx
Vice President
PARENTS:
QUORUM BROADCAST HOLDINGS, LLC
QUORUM BROADCAST HOLDINGS, INC.
By: /s/ Xxxxxxx Xxxxxxx
-------------------------------------
Xxxxxxx Xxxxxxx
Vice President - Finance
SUBSIDIARIES:
QUORUM BROADCASTING OF MISSOURI, INC.
QUORUM BROADCASTING OF INDIANA, INC.
QUORUM BROADCASTING OF LOUISIANA, INC.
QUORUM BROADCASTING OF TEXAS, INC.
QUORUM BROADCASTING OF UTICA, INC.
QUORUM BROADCASTING OF ROCKFORD, LLC
QUORUM OF MISSOURI LICENSE, LLC
QUORUM OF INDIANA LICENSE, LLC
QUORUM OF LOUISIANA LICENSE, LLC
QUORUM OF TEXAS LICENSE, LLC.
QUORUM OF ROCKFORD LICENSE, LLC
QUORUM OF UTICA LICENSE, LLC
By: /s/ Xxxxxxx Xxxxxxx
-------------------------------------
Name: Xxxxxxx Xxxxxxx
Title: VP-Finance of each of the
above-named Subsidiaries
QUORUM OF MONTANA, INC.
QUORUM OF MARYLAND, INC.
QUORUM OF FORT XXXXX, INC.
QUORUM OF AMARILLO, INC.
QUORUM OF MISSOURI, INC.
QUORUM OF TEXAS, INC.
QUORUM BROADCASTING OF MONTANA, LLC
QUORUM BROADCASTING OF MARYLAND, LLC
QUORUM BROADCASTING OF FORT XXXXX, LLC
QUORUM BROADCASTING OF AMARILLO, LLC
QUORUM BROADCASTING OF MISSOURI, LLC
QUORUM BROADCASTING OF TEXAS, LLC
QUORUM OF MONTANA LICENSE, LLC
QUORUM OF MARYLAND LICENSE, LLC
QUORUM OF FORT XXXXX LICENSE, LLC
QUORUM OF AMARILLO LICENSE, LLC
By: /s/ Xxxxxxx Xxxxxxx
-------------------------------------
Name: Xxxxxxx Xxxxxxx
Title: VP-Finance of each of the
above-named Subsidiaries
VHR BROADCASTING OF LUBBOCK, INC.
VHR BROADCASTING OF SPRINGFIELD, INC.
VHR LUBBOCK LICENSE, INC.
VHR SPRINGFIELD LICENSE, INC.
By: /s/ Xxxxx X. Xxxxx
-------------------------------------
Xxxxx X. Xxxxx
Chief Financial Officer of each
of the above-named Subsidiaries
MISSION BROADCASTING OF AMARILLO
LICENSE, INC.
By: /s/ Xxxxxx X. Xxxxx
-------------------------------------
Xxxxxx X. Xxxxx
Vice President of the
above-named Subsidiary
ADMINISTRATIVE AGENT:
BANK OF AMERICA, N.A.,
as Administrative Agent
By: /s/ Xxxxxxx X. Xxxxxxxxxxx, XX
-------------------------------------
Xxxxxxx X. Xxxxxxxxxxx, XX
Managing Director
LENDERS:
BANC OF AMERICA STRATEGIC SOLUTIONS,
INC.
By: /s/ Xxxxxxx X. Xxxxxxxxxxx, XX
-------------------------------------
Xxxxxxx X. Xxxxxxxxxxx, XX
Managing Director
COOPERATIEVE CENTRALE RAIFFEISEN-
BOERENLEENBANK B.A., "RABOBANK
NEDERLAND", NEW YORK BRANCH
By: /s/ [ILLEGIBLE]
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
By: /s/ Xxxxxxx X. Xxxxxxxx
-------------------------------------
Name:
-----------------------------------
Title: Exec. Director - [ILLEGIBLE]
Deutsche Bank Trust Company Americas
(f/k/a Bankers Trust Company)
By: /s/ Xxxxx X. XxXxxxx
-------------------------------------
Name: Xxxxx X. XxXxxxx
Title: Director
BANK OF MONTREAL, CHICAGO BRANCH
By: /s/ Bin Xxxxxxxx
-------------------------------------
Name: Bin Xxxxxxxx
Title: Director
FRANKLIN FLOATING RATE TRUST
By: /s/ Xxxxxxx X' Xxxxxxx
-------------------------------------
Name: Xxxxxxx X' Xxxxxxx
Title: Vice President
GENERAL ELECTRIC CAPITAL
CORPORATION (f/k/a Xxxxxx
Financial, Inc.)
By: /s/ Xxxx Xxxxxxx
-------------------------------------
Name: Xxxx Xxxxxxx
Title: Duly Authorized Signatory
US BANK, NATIONAL ASSOCIATION
(f/k/a Firstar Bank, N.A.)
By: /s/ Xxxxx X. Xxx
-------------------------------------
Name: Xxxxx X. Xxx
Title: Vice President
MASTER SENIOR FLOATING RATE TRUST
By: /s/ Xxxx Xxxxxxx
-------------------------------------
Name: Xxxx Xxxxxxx
Title: Authorized Signatory
XXXXXXX XXXXX PRIME RATE PORTFOLIO
By: Xxxxxxx Xxxxx Investment
Manager, L.P.,
as Investment Advisor
By: /s/ Xxxx Xxxxxxx
-----------------------------
Name: Xxxx Xxxxxxx
Title: Authorized Signatory
NORTHWOODS CAPITAL, LIMITED
By: Xxxxxx, Xxxxxx & Co., L.P., as
Collateral Manager
By: /s/ Xxxx X. Xxxxxx
-----------------------------
Name: Xxxx X. Xxxxxx
Title: Managing Director
SOCIETE GENERALE, NEW YORK BRANCH
By: /s/ Xxxxxx Xxxxxx
-------------------------------------
Name: Xxxxxx Xxxxxx
Title: Director
SRF TRADING, INC.
By: /s/ Xxxxx X. Xxxxx
-------------------------------------
Name: Xxxxx X. Xxxxx
Title: Assistant Vice President
SRF 2000, INC.
By: /s/ Xxxxx X. Xxxxx
-------------------------------------
Name: Xxxxx X. Xxxxx
Title: Assistant Vice President
THE CIT GROUP/EQUIPMENT FINANCING, INC.
By: /s/ Xxxxxxx X. Xxxxxxx
-------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
WOODSIDE CAPITAL PARTNERS II, LLC
By: Woodside Capital Management, LLC
its duly authorized Manager
By: /s/ Xxxxxx X. Xxxxx
-------------------------------------
Name: Xxxxxx X. Xxxxx
Title: EVP
GSC PARTNERS GEMINI FUND LIMITED,
as Lender
By: GSCP (NJ), L.P., as
Collateral Monitor
By: GSCP (INC.), L.P., its
General Partner
By: /s/ Xxxxxx X. Xxxxxx
-----------------------------
Name: Xxxxxx X. Xxxxxx
Title: Authorized Signatory
XXX XXXXXX PRIME RATE INCOME TRUST
By: Xxx Xxxxxx Investment Advisory
Corp.
By: /s/ Xxxxxxxxx Xxxxxxxx
-----------------------------
Name: Xxxxxxxxx Xxxxxxxx
Title: Vice President
XXX XXXXXX SENIOR INCOME TRUST
By: Xxx Xxxxxx Investment Advisory
Corp.
By: /s/ Xxxxx Xxxxxxx
-----------------------------
Name: Xxxxx Xxxxxxx
Title: Vice President
LIBERTY FLOATING RATE ADVANTAGE FUND
By: XXXXX XXX & XXXXXXX
INCORPORATED, AS ADVISOR
By: /s/ Xxxxxxxx X. Zam
-----------------------------
Name: Xxxxxxxx X. Zam
Title: Senior Vice President
XXXXX XXX FLOATING RATE LIMITED
LIABILITY COMPANY
By: XXXXX XXX & XXXXXXX
INCORPORATED, AS ADVISOR
By: /s/ Xxxxxxxx X. Zam
-----------------------------
Name: Xxxxxxxx X. Zam
Title: Senior Vice President
XXXXX XXX & FARNHAM CLO I LTD
By: Xxxxx Xxx & Xxxxxxx
Incorporated, as Portfolio
Manager
By: /s/ Xxxxxxxx X. Zam
-----------------------------
Name: Xxxxxxxx X. Zam
Title: Senior Vice President
