THIRD AMENDMENT TO THIRD AMENDED AND RESTATED CREDIT AGREEMENT AND FORBEARANCE AGREEMENT
Exhibit
10.14
THIRD
AMENDMENT TO THIRD AMENDED AND RESTATED CREDIT
THIS
THIRD AMENDMENT TO THIRD AMENDED AND RESTATED CREDIT AGREEMENT AND FORBEARANCE
AGREEMENT (this
"Agreement")
is
made as of the 24th day of June, 2008, by and among
EQUITY
MEDIA HOLDINGS CORPORATION,
a
Delaware corporation (successor-by-merger to Equity Broadcasting Corporation,
an
Arkansas corporation) ("EMHC"),
ARKANSAS
49, INC.,
an
Arkansas corporation, XXXXXX
BROADCASTING, INC.,
a
Nevada corporation, DENVER
BROADCASTING, INC.,
an
Arkansas corporation, EBC
XXXXXXXX, INC.,
an
Arkansas corporation, EBC
PANAMA CITY, INC.,
an
Arkansas corporation, EBC
SCOTTSBLUFF, INC.,
an
Arkansas corporation, FORT
XXXXX 46, INC.,
a
Nevada corporation ("Fort
Xxxxx 46"),
EQUITY
NEWS SERVICES, INC. (formerly
known as Hispanic News Network, Inc.), an Arkansas corporation, XXXXX
12, INC.,
an
Arkansas corporation ("Xxxxx
12"),
MARQUETTE
BROADCASTING, INC.,
a
Nevada corporation, NEVADA
CHANNEL 3, INC.,
an
Arkansas corporation, NEWMONT
BROADCASTING CORPORATION,
an
Arkansas corporation, PRICE
BROADCASTING, INC.,
a
Nevada corporation, PULLMAN
BROADCASTING INC.,
an
Arkansas corporation ("PBI"),
REP
PLUS, INC.,
an
Arkansas corporation, RIVER
CITY BROADCASTING, INC.,
an
Arkansas corporation ("River
City"),
ROSEBURG
BROADCASTING, INC.,
a
Nevada corporation, TV
34, INC.,
an
Arkansas corporation, VERNAL
BROADCASTING, INC.,
a
Nevada corporation, XXXXXXXX
BROADCASTING, INC.,
a
Nevada corporation, EBC
MINNEAPOLIS, INC.,
an
Arkansas corporation, EBC
DETROIT, INC.,
an
Arkansas corporation, EBC
BUFFALO, INC.,
an
Arkansas corporation, EBC
WATERLOO, INC.,
an
Arkansas corporation,
EBC ATLANTA, INC.,
an
Arkansas corporation, EBC
SEATTLE, INC.,
an
Arkansas corporation, EBC
KANSAS CITY, INC.,
an
Arkansas corporation, EBC
SYRACUSE, INC.,
an
Arkansas corporation, NEVADA
CHANNEL 6, INC.,
an
Arkansas corporation, EBC
PROVO, INC.,
an
Arkansas corporation, EBC
SOUTHWEST FLORIDA, INC.,
an
Arkansas corporation, EBC
LOS ANGELES, INC.,
an
Arkansas corporation, C.A.S.H.
SERVICES, INC.
(formerly known as Skyport Services, Inc.), an Arkansas corporation,
EBC
NASHVILLE, INC.,
an
Arkansas corporation, EBC
JACKSONVILLE, INC., an
Arkansas corporation, CENTRAL
ARKANSAS PAYROLL COMPANY,
an
Arkansas corporation, EQUITY
INSURANCE COMPANY,
an
Arkansas corporation, KLRA,
INC.,
an
Arkansas corporation, EBC
POCATELLO, INC.,
a
Nevada corporation, EBC
WICHITA FALLS, INC.,
an
Arkansas corporation, EBC
MT. XXXXXX, INC.,
an
Arkansas corporation, EBC
BOISE, INC.,
an
Arkansas corporation, EBC
ST. LOUIS, INC.,
an
Arkansas corporation, LA
GRANDE BROADCASTING, INC.,
an
Arkansas corporation, XXXXXXXXXX
22, INC.,
an
Arkansas corporation, SHAWNEE
BROADCASTING, INC.,
an
Arkansas corporation, EBC
WACO, INC.,
an
Arkansascorporation and WYOMING
CHANNEL 2, INC.,
a
Nevada corporation (together, the "Borrowers"
and
individually, a "Borrower").
SPCP
GROUP, LLC,
a
Delaware limited liability company ("SPCP"),
SPF CDO I, LTD.,
a
Cayman Islands limited liability company ("SPF"),
FIELD
POINT III, LTD., a
Cayman
Islands limited liability company ("FPIII"),
FIELD
POINT IV, LTD.,
a
Cayman Islands limited liability company ("FPIV"),
XXXXX FARGO FOOTHILL, INC.,
a
California corporation ("WFF"),
and
the other financial institutions which, in accordance with Article
XII
of the
Credit Agreement, hereafter become parties hereto and "Lenders" under the Credit
Agreement (collectively, "Lenders"
and
each individually, a "Lender");
SILVER
POINT FINANCE, LLC,
a
Delaware limited liability company, as Administrative Agent for Lenders (in
such
capacity, together with its successors and assigns in such capacity,
"Administrative
Agent"),
and
as Documentation Agent for Lenders (in such capacity, together with its
successors and assigns in such capacity, "Documentation
Agent");
XXXXX
FARGO FOOTHILL, INC.,
a
California corporation, as Collateral Agent (in such capacity, together with
its
successors and assigns in such capacity, "Collateral
Agent").
W
I T N E S S E T H T H A T
WHEREAS,
Borrowers are indebted to the Lenders pursuant to a certain Third Amended and
Restated Credit Agreement dated as of February 13, 2008, as amended and
supplemented by a certain First Amendment to Third Amended and Restated Credit
Agreement and Forbearance Agreement dated as of March 19, 2008 and a certain
Second Amendment to Third Amended and Restated Credit Agreement and Forbearance
Agreement dated as of April 28, 2008 (as so amended and supplemented, and as
the
same may be further amended, restated, supplemented and otherwise modified
from
time to time, the "Credit
Agreement");
and
WHEREAS,
on the date hereof Borrowers are in default under the Credit Agreement as
described in Exhibit
A
attached
hereto and made a part hereof (the "Existing
Defaults");
and
WHEREAS,
Borrowers have requested that Lenders, Administrative Agent and Collateral
Agent
(collectively, "Lender
Group")
forbear from exercising their rights and remedies under the Credit Agreement
and
the related Security Documents as a result of such Existing Defaults and a
Financial Covenant Default (as hereinafter defined) until the end of the
Forbearance Period (as hereinafter defined); and
WHEREAS,
Borrowers have requested that certain Lenders provide additional financing
to
Borrowers as hereinafter provided; and
WHEREAS,
Lender Group is willing to agree to forbear from exercising its rights and
remedies with respect to the Existing Defaults and any Financial Covenant
Default for the Forbearance Period specified herein and on the terms and
conditions specified herein and certain Lenders are willing to extend such
additional financing on the terms and conditions specified herein and in the
Credit Agreement, as amended hereby; and
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WHEREAS,
the parties hereto desire to amend the Credit Agreement as hereinafter
provided;
NOW
THEREFORE, in consideration of the premises and for other good and valuable
consideration, the receipt and adequacy of which are hereby acknowledged, the
parties hereto hereby agree as follows:
1. Definitions.
Unless
otherwise defined herein, all capitalized terms used herein shall have the
identical meanings assigned to them in the Credit Agreement, as amended
hereby.
2. Acknowledgments
of Borrowers.
(a) Acknowledgment
of Indebtedness.
Borrowers hereby acknowledge, confirm and agree that as of the date hereof
and
prior to taking into account the funding of any Term Loans C (as
hereinafter defined), Borrowers are indebted to Lenders in respect of: (i)
the
Revolving Credit Loan in the aggregate outstanding principal amount of
$5,512,500.00 plus accrued and unpaid interest; (ii) the Term Loans A in the
aggregate outstanding principal amount of $12,000,000.00, plus accrued and
unpaid interest; (iii) the Term Loans B (including, without limitation, certain
Additional Term Loans B made prior to the date hereof) in the aggregate
outstanding principal amount of $38,495,541.00, plus accrued and unpaid interest
and (iv) all legal and other fees in connection with this Agreement, the Credit
Agreement and/or any other Loan Document, including, without limitation, all
reasonable fees and expenses of Xxxxxxx Xxxxxx Xxxxxx & Dodge LLP, special
counsel to Administrative Agent, Milbank, Tweed, Xxxxxx & XxXxxx LLP,
special counsel to Administrative Agent, and Xxxx Xxxxxxxx, special counsel
to
Collateral Agent, in each case accrued to the date hereof. The Revolving Credit
Loan, the Term Loans A and the Term Loans B, together with interest accrued
and
accruing thereon, and fees, costs, expenses and other charges now or hereafter
payable by Borrowers to Lender, are unconditionally owing by Borrowers, without
offset, defense or counterclaim of any kind, nature or description
whatsoever.
(b) Acknowledgement
of Security Interests.
Borrowers hereby acknowledge, confirm and agree that Lender Group has and shall
continue to have valid, enforceable and perfected first-priority liens upon,
and
security interests in, the Collateral heretofore granted to Collateral Agent
for
the benefit of Lenders pursuant to the Loan Documents or otherwise granted
to or
held by Lender Group, subject to encumbrances permitted under the Credit
Agreement, if any.
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(c) Acknowledgement
Concerning Loans.
Borrowers
hereby acknowledge, confirm and agree that no Borrower is entitled to request
any further Loans (including, without limitation, Additional Term Loans B),
advances or financial accommodations under the Credit Agreement, and that Lender
Group is under no obligation to make any further Loans (including, without
limitation, Additional Term Loans B), advances or financial accommodations
to
any Borrower. Notwithstanding the foregoing, the Lenders identified on
Exhibit
C
attached
hereto (collectively, the "Term
Loan C Lenders"),
provided no Termination Event (as hereinafter defined) has occurred, shall,
subject to the terms and conditions contained herein, make Term Loans C to
Borrowers from time to time during the Forbearance Period in accordance with
and
subject to this Agreement and the Credit Agreement, as amended hereby. Such
Term
Loans C shall be deemed to be Loans as defined in, and subject to the terms
of,
the Credit Agreement (including, without limitation, provisions as to the
accrual and payment of interest and principal) and secured pari passu under
the
related Security Documents, as amended; provided that such Term Loans C shall
be
advanced in accordance with Section
6
(instead
of Section
2.01(c)
of the
Credit Agreement) and requests for such Term Loans C shall be made in accordance
with Section
6
(instead
of Section
2.03
of the
Credit Agreement). Each Term Loan C Lender shall be deemed to be a Lender as
defined in, and subject to the terms of, the Credit Agreement, as amended,
from
and after the date this Agreement becomes effective.
3. Forbearance
in Respect of Events of Default.
(a) Acknowledgement
of Defaults.
Borrowers hereby acknowledge and agree that the Existing Defaults have occurred
as of the date hereof and will be continuing, which Existing Defaults constitute
Events of Default. The Borrowers further represent and warrant that as of the
date hereof no other Defaults or Events of Default under the Loan Documents
exist. The Borrowers hereby acknowledge and agree that Lender Group has the
present right to exercise all remedies available under the Loan Documents and
applicable law, and that Borrowers' Obligations to Lender Group are immediately
due and payable without notice or demand.
(b) Forbearance.
(i) In
reliance upon the representations, warranties and covenants of Borrowers
contained in this Agreement, and subject to the terms and conditions of this
Agreement and any documents or instruments executed in connection herewith,
Lender Group agrees to forbear from exercising, or causing the exercise of,
its
rights and remedies under the Loan Documents or applicable law in respect of
or
arising out of (x) the Existing Defaults and (y) a Default or Event of Default
under Section
5.06
of the
Credit Agreement (a "Financial
Covenant Default")
for
the period (the "Forbearance
Period")
commencing on the date this Agreement becomes effective and ending on the
earliest to occur of: (I) December 23, 2008 or (II) the occurrence of a
Termination Event (as hereinafter defined); provided that
Required
Lenders may in their sole and absolute discretion elect to terminate the
Forbearance Period on any date occurring on or after September 15, 2008 by
delivering written notice of such election to EMHC.
(ii) Upon
the
termination of the Forbearance Period, the agreement of Lender Group to forbear
shall automatically and without further action terminate and be of no force
and
effect; it being expressly agreed that the effect of such termination will
be to
permit Lender Group to exercise, or cause the exercise of, any rights and
remedies available to it, if any, immediately, without any further notice,
passage of time or forbearance of any kind.
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(iii) For
the
purpose of this Agreement, "Termination
Event"
shall
have the meaning given to such term in that certain Side Letter Agreement dated
as of February 13, 2008, as amended by a certain First Amendment to Side Letter
Agreement dated as of March 19, 2008, a certain Second Amendment to Side Letter
Agreement dated as of April 28, 2008, and a certain Third Amendment to Side
Letter Agreement of even date herewith by and among Borrowers, Agents and
Lenders (as so amended, the "Side
Letter Agreement").
(c) No
Waivers; Reservation of Rights.
(i) Lender
Group has not waived, and is not waiving, by the execution of this Agreement,
the funding of any Term Loans C or the acceptance of any payments hereunder
or
under the Credit Agreement, the Existing Defaults, a Financial Covenant Default,
or any Default, Event of Default or Termination Event which has occurred or
may
hereafter occur (whether the same or similar to the Existing Defaults, a
Financial Covenant Default or otherwise), and Lender Group has not agreed to
forbear with respect to any of its rights or remedies concerning any Default
or
Event of Default (other than, solely during the Forbearance Period, the Existing
Defaults and any Financial Covenant Default to the extent expressly set forth
herein), which may have occurred or is continuing as of the date hereof or
which
may occur after the date hereof.
(ii) Subject
to Section 3(b) above (solely with respect to the Existing Defaults and any
Financial Covenant Default), Lender Group and each Agent reserves the right,
in
its discretion, to exercise, or cause the exercise of, any or all of their
rights and remedies under the Credit Agreement, the other Loan Documents and
applicable law as a result of the Existing Defaults, any Financial Covenant
Default, or any other Default or Event of Default which has occurred or may
hereafter occur. For the avoidance of doubt, the forbearance of the Lender
Group
under Section 3(b) above with respect to (i) the Existing Defaults applies
only
to such defaults as they exist on the date hereof and (ii) any Financial
Covenant Default applies only to such defaults occurring under Section
5.06
during
the Forbearance Period.
(iii) Without
limiting the generality of the foregoing, Borrowers will not claim that any
prior action or course of conduct by Lender Group or any Agent constitutes
an
agreement or obligation to continue such action or course of conduct in the
future. Each Borrower acknowledges that neither Lender Group nor any Agent
has
made any commitment as to: (i) any future funding of any Loan, (ii) the length
of the Forbearance Period or (iii) how or whether the Existing Defaults,
Financial Covenant Defaults or any other Default or Event of Default will be
resolved upon termination or expiration of the Forbearance Period.
(iv) Except
as
expressly provided herein, nothing in this Agreement shall be construed as
an
amendment to the Credit Agreement or any other Loan Document. The Credit
Agreement and the other Loan Documents are in full force and effect, and shall
remain in full force and effect unless and until an agreement modifying the
Credit Agreement or such other Loan Document is executed and delivered by the
applicable parties, and then only to the extent such agreement actually modifies
such documents. The parties hereto further acknowledge and agree that this
Agreement shall constitute a Loan Document for all purposes.
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4. Consent
to Certain Transactions.
(a) Borrowers
have advised Lender Group that they desire to (i) sell to Xxxxx Communications,
LLC certain assets relating to the Retro Television Network (such sale, the
"RTN
Disposition")
in
accordance with the terms of that certain Stock Purchase Agreement, dated as
of
June 24, 2008, among EMHC, C.A.S.H. Services, Inc., Retro Programming Services,
Inc. and Xxxxx Communications, LLC (the "RTN
Purchase Agreement"),
(ii)
sell to Xxxxx Communications, LLC the Stations located in the markets of
Minneapolis, Oklahoma City/Tulsa, Ft. Xxxxx/Naples, Waco/Temple/Xxxxx and
Amarillo (such sales, the "Waived
Station Sales"
and,
together with the RTN Disposition, the "Waived
Dispositions")
in
accordance with the terms of each Asset Purchase Agreement, dated as of June
24,
2008, between the related selling party named therein and Xxxxx Communications,
LLC (the "Waived
Station Purchase Agreement"
and,
together with the RTN Purchase Agreement, the "Waived
Disposition Purchase Documents")
and
(iii) issue and sell 8,050,000 warrants for an aggregate purchase price of
$1,500,000 to Xxxxx Communications, LLC (such issuance, the "Warrant
Issuance"
and,
together with the Waived Dispositions, the "Waived
Transactions")
in
accordance with the terms of that certain Warrant Purchase Agreement, dated
as
of June 24, 2008, between EMHC and Xxxxx Communications, LLC (the "Warrant
Agreement"
and
together with the Waived Disposition Purchase Documents, the "Xxxxx
Agreements").
Borrowers have requested that Lender Group consent to such Waived Transactions
and waive non-compliance by Borrowers under the Credit Agreement resulting
from
the Borrowers entering into the Waived Transactions. In reliance upon the
representations, warranties and covenants of Borrowers contained in this
Agreement, and subject to the terms and conditions of this Agreement and any
documents or instruments executed in connection herewith and provided that
no
Termination Event has occurred or shall occur prior to the consummation of
such
transactions, Lender Group hereby consents to the Waived Transactions and hereby
waives compliance by Borrowers with any covenant in the Credit Agreement solely
to the extent that such covenant would be breached as a result of the
consummation of the Waived Transactions on the terms and conditions set forth
herein and therein. For the avoidance of doubt, the consent contained in this
Section 4 is limited to the sales and issuance set forth above and nothing
in
this Agreement shall constitute (i) a consent by Lender Group to any other
matter, including without limitation the exercise by Borrowers of any right
or
remedy under the Xxxxx Agreements (including, without limitation, the exercise
of any repurchase or termination option thereunder) or the granting of any
lien
thereunder or (ii) a waiver by Lender Group of the application of the proceeds
of the Waived Transactions in the manner required by this Agreement and the
Credit Agreement. Borrowers acknowledge and agree that Lender Group is
consenting to the Waived Transactions in reliance on each of the Waived
Transactions being consummated and that the failure of any of the Waived
Transactions to be consummated shall negate the Lender Group's consent for
all
of the Waived Transactions.
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(b)
Borrowers hereby (i) covenant and agree that the "Additional Stations Purchase
Prepayment" (as defined in the RTN Purchase Agreement as in effect on the date
hereof) and any similar or replacement payment paid with respect to the Waived
Transactions shall be applied to the Loans as proceeds from the Disposition
of
Assets, whether or not the Waived Transactions have been consummated as of
such
time and Borrower shall direct the Persons making such payments to make payment
directly to the account of the Administrative Agent for distribution to the
Lenders and (ii) acknowledge and agree that all of their respective rights
and
remedies under the Xxxxx Agreements and all documents and instruments delivered
in connection therewith or related thereto (including, without limitation,
all
repurchase and termination options and related rights thereunder) constitute
Collateral granted to Collateral Agent for the benefit of the Lenders in
accordance with the Loan Documents, and Borrowers hereby grant to Collateral
Agent a security interest in all such rights and remedies to secure the
Obligations owed to Lenders and further agree to execute and deliver all
Security Documents or such additional instruments, certificates and documents,
and take all actions, as Agents shall request to ensure that (x) Collateral
Agent and Lenders have a first priority security interest in all such rights
and
(y) Collateral Agent is able to direct the enforcement of such rights (both
prior to or following any Default or Event of Default).
5. Additional Definitions.
The
following new definitions are hereby added to Section
1.01
of the
Credit Agreement:
"Aggregate
Term Loan C Commitments:
up to
six million five hundred thousand dollars ($6,500,000) as determined in
accordance with the terms of this Agreement."
"Excluded
Borrowers:
KLRA,
Inc., EBC Pocatello, Inc., EBC Mt. Xxxxxx, Inc., EBC Boise, Inc., EBC St. Louis,
Inc., La Grande Broadcasting, Inc., Xxxxxxxxxx 22, Inc., Shawnee Broadcasting,
Inc., and Wyoming Channel 2, Inc."
"Increased
Availability Date:
each
date, if any, following September 15, 2008 upon which the Term Loan C Lenders
in
their sole and absolute discretion determine (as evidenced by written notice
delivered to the Borrowers) to increase the then-applicable available Aggregate
Term Loan C Commitments. Without limiting the discretion of the Term Loan C
Lenders set forth in the preceding sentence, in making their determination
as to
whether to provide additional availability to the Borrowers, the Term Loan
C
Lenders presently intend to consider, among other factors they may deem
relevant, the Borrowers' operations, earnings, expenses, assets, liabilities
(contingent or otherwise), financial condition and/or prospects including,
without limitation, (i) the performance and composition of Borrowers’ management
team from and after the date hereof, (ii) evidence that the Borrowers have
achieved sustainable reductions in costs and/or increases in revenues that
significantly improve, to the satisfaction of the Term Loan C Lenders, the
Borrowers’ cash flow forecasts for the period through December 23, 2008 and
(iii) evidence that the Borrowers have executed one or more bona fide purchase
agreements satisfactory to the Term Loan C Lenders for the sale of assets that
will yield Net Cash Proceeds by December 23, 2008 in an amount which is
satisfactory to the Term Loan C Lenders."
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"Key
Person:
with
respect to any position indicated on Schedule 5 to the Third Amendment, each
Person listed opposite such position on Schedule 5 to the Third Amendment or
any
replacement of such Person reasonably satisfactory to the Required
Lenders."
"Key
Person Event:
the
failure of any position indicated on Schedule 5 to the Third Amendment to at
all
times be occupied by the respective Key Person with respect thereto and such
failure continues for a period of fifteen (15) consecutive calendar
days."
"Net
Cash Proceeds:
with
respect to any Disposition, the aggregate amount of all cash payments received
by a Borrower, directly or indirectly, in connection with such Disposition,
whether at the time thereof or after the consummation of such Disposition under
deferred payment arrangements or investments entered into or received in
connection with such Disposition, minus
the
aggregate amount of all reasonable and customary (i) legal, regulatory, title
and recording tax expenses; (ii) transfer taxes, and (iii) commissions and
other
fees and expenses paid at any time by a Borrower in connection with such
Disposition, and minus
amounts
paid to discharge liens on the Disposed of property and minus
any
taxes payable or due in connection with such Disposition or reasonable and
customary cash reserves established therefor in connection with such
Disposition. Net Cash Proceeds shall not include, however, any exchange credit
received in a tax deferred exchange of property. "
"RTN
Disposition:
the
meaning specified in the Third Amendment."
"RTN
Purchase Agreement:
the
meaning specified in the Third Amendment."
"Term
Loan C Commitment:
with
respect to each Term Loan C Lender, the commitment of such Term Loan C Lender
to
make Term Loans C. The initial amount of each Term Loan C Lender's Term Loan
C
Commitment is set forth in Exhibit C to the Third Amendment."
"Term
Loan C Lenders:
Lenders
holding Term Loan C Notes."
"Term
Loan C Notes:
the
meaning specified in the Third Amendment."
"Term
Loans:
Term
Loans A, Term Loans B and Term Loans C."
"Term
Loans C:
Loans
made by Term Loan C Lenders pursuant to the Third Amendment."
"Third
Amendment:
that
certain Third Amendment to Third Amended and Restated Credit Agreement and
Forbearance Agreement dated as of June 24, 2008, among Borrowers, Lenders and
Agents."
"Third
Amendment Closing Date:
the
date of closing of the Third Amendment."
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"Waived
Disposition:
the
meaning specified in the Third Amendment."
"Waived
Disposition Purchase Documents:
the
meaning specified in the Third Amendment."
"Waived
Station Purchase Agreement:
the
meaning specified in the Third Amendment."
"Waived
Station Sales:
the
meaning specified in the Third Amendment."
6. Term
Loans C. (i)
Subject to the terms and conditions contained in this Agreement and the Credit
Agreement, as amended by this Agreement, each Term Loan C Lender agrees
severally to make one or more loans pursuant to this Section
6
(collectively, the "Term
Loans C")
to
Borrowers from time to time during the Forbearance Period in an aggregate
principal amount which does not exceed the amount of such Lender's commitment
to
make Term Loans C, provided,
however,
(i)
Term Loan C Lenders shall have no obligation to make any Term Loans C if, after
giving effect to such Term Loans C, the sum of the aggregate amount of the
Term
Loans C advanced by Term Loan C Lenders plus the amount of the requested Term
Loans C would exceed the available Aggregate Term Loan C Commitment then in
effect and (ii) unless and until an Increased Availability Date shall occur,
the
available Aggregate Term Loan C Commitments shall not exceed $1,500,000. The
Term Loan C Lenders' respective maximum commitments to make Term Loans C are
set
forth in Exhibit
C
hereto.
The Term Loans C shall constitute Term Loans for all purposes of the Credit
Agreement, as amended hereby.
(ii) On
any
date during the Forbearance Period on which interest on the Loans or fees or
expense reimbursements required are payable by Borrowers, Borrowers shall be
automatically (without the giving of any notice) deemed to have requested Terms
Loans C to be made in an amount equal to all interest on the Loans and/or fees
and expense reimbursements due and payable on such date and Billing Agent shall
promptly notify Term Loan C Lenders of each such request and the amount of
the
Term Loans C to be advanced on such date; provided,
however,
that
the Terms Loans C shall be made within the limits of the then available
Aggregate Term Loan C Commitment and Borrowers shall not have the right to
re-borrow principal amounts repaid or prepaid in respect to the Term Loans
C.
The Term Loans C shall be made by the Term Loan C Lenders Pro Rata in accordance
with Section
2.13
of the
Credit Agreement, as amended by this Agreement. Not later than 2:00 P.M.
(California time) on the date Term Loans C are to be advanced, each Term Loan
C
Lender shall make available to Billing Agent the portion of the Term Loans
C to
be made by it on such date, in immediately available funds, for the account
of
Borrower. The amount so received by Billing Agent shall, subject to the terms
and conditions of this Agreement and the Credit Agreement, be directly applied
by Billing Agent to the payment of all interest on the Loans and fees and
expense reimbursements due and payable on such date or to such other purposes
as
the Required Lenders in their sole and absolute discretion shall consent to
in
writing. No Term Loans C may be drawn by Borrowers for any purpose other than
as
provided in this Section
6(ii).
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(iii) The
borrowings under this Section
6
shall be
evidenced by Borrowers' Secured Promissory Notes issued to the respective Term
Loan C Lenders (together with any additional Secured Promissory Notes issued
to
assignee(s) of the Term Loan C Lenders under Article
XII
of the
Credit Agreement or otherwise issued in addition thereto, in substitution
therefor or amendment or replacement thereof, collectively, the "Term
Loan C Notes"),
and
the Term Loan C Notes shall constitute Term Notes for all purposes of the Credit
Agreement, as amended hereby.
(iv) Borrowers'
right to request or receive Term Loans C shall terminate upon termination
or expiration of the Forbearance Period.
7. Article
I Amendments.
(a) The
following definitions in Section
1.01
of the
Credit Agreement are hereby amended to read in their entirety as
follows:
"Base
Rate:
the per
annum interest rate calculated from time to time as being the sum of
(i) the greatest of (A) the Prime Rate, (B) the Federal Funds
Rate in effect on such day plus fifty (50) basis points (0.50%), and (C) seven
and one-half percent (7.50%) per annum plus
(ii) nine percent (9.00%)."
"Billing
Agent:
(i)
with respect to the Revolving Credit Loans, WFF, for itself and the other
Revolving Credit Lenders; (ii) with respect to the Term Loans A, WFF, for itself
and the other Term Loan A Lenders; (iii) with respect to the Term Loans B,
Silver Point, for itself and the Term Loan B Lenders; and (iv) with respect
to
the Term Loans C, Silver Point, for itself and the Term Loan C
Lenders."
"Pro
Rata; Pro Rata Share and Ratable:
(i) the
respective meanings specified in Section
2.13
with
respect to the matters described therein, (ii) with respect to matters deemed
to
relate solely to Revolving Credit Lenders by the specific terms hereof, the
percentage obtained by dividing a Revolving Credit Lender's Revolving Credit
Commitment by the Aggregate Revolving Credit Commitments; provided,
however,
that if
the Revolving Credit Commitments have been terminated or the Obligations have
been accelerated, Pro Rata Share shall be the percentage obtained by dividing
the unpaid principal amount of such Revolving Credit Lender's Revolving Credit
Loans by the unpaid principal balance of all Revolving Credit Loans; (iii)
with
respect to matters relating solely to Term Loan A Lenders, the percentage
obtained by dividing the unpaid principal amount of such Term Loan A Lender's
Term Loans A by the unpaid principal balance of all Term Loans A; (iv) with
respect to matters relating solely to Term Loan B Lenders, the percentage
obtained by dividing the unpaid principal amount of such Term Loan B Lender's
Term Loans B by the unpaid principal balance of all Term Loans B; (v) with
respect to matters relating solely to Term Loan C Lenders, the percentage
obtained by dividing the unpaid principal amount of such Term Loan C Lender's
Term Loans C by the unpaid principal balance of all Term Loans C; (vi) with
respect to matters relating solely to Term Loan Lenders, the percentage obtained
by dividing (A) the aggregate outstanding principal balance of the Term Loans
of
such Lender plus
the
aggregate amount of the unutilized and available Term Loan Commitments of such
Term Loan Lender, by (B) the aggregate unpaid principal balance of all Term
Loans plus
the
aggregate amount of the unutilized and available Term Loan Commitments of all
Term Loan Lenders; provided,
however,
that in
the event the Term Loan Commitments have been terminated or the Obligations
have
been accelerated, Pro Rata Share shall be the percentage obtained by dividing
the unpaid principal amount of such Term Loan Lenders' Loans, by the unpaid
principal amount of all outstanding Term Loans; and (vii) with respect to all
other matters as to a particular Lender (including the indemnification
obligations arising under Section
10.05),
the
percentage obtained by dividing (A) the aggregate outstanding principal balance
of the Loans of such Lender plus
the
aggregate amount of the unutilized and available Commitments of such Lender,
by
(B) the aggregate unpaid principal balance of all Loans plus
the
aggregate amount of the unutilized and available Commitments of all Lenders;
provided,
however,
that in
the event the Commitments have been terminated or the Obligations have been
accelerated, Pro Rata Share shall be the percentage obtained by dividing the
unpaid principal amount of such Lenders' Loans, by the unpaid principal amount
of all outstanding Loans."
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"Required
Lenders:
at any
time, (a) Lenders (who are not Defaulting Lenders) holding in the aggregate
at
least two-thirds (2/3) of the sum of (i) the aggregate outstanding principal
balance of the Revolving Credit Loans and (ii) the aggregate amount of the
unutilized Revolving Credit Commitments, if any, excluding from such
calculations, however, the Revolving Credit Loans and Revolving Credit
Commitments held by the Defaulting Lenders, and (b) Lenders (who are not
Defaulting Lenders) holding in the aggregate at least two-thirds (2/3) of the
aggregate outstanding principal balance of the Term Loans A, excluding from
such
calculation any Loans held by the Defaulting Lenders, and (c) Lenders (who
are
not Defaulting Lenders) holding in the aggregate at least two-thirds (2/3)
of
the aggregate outstanding principal balance of the Term Loans B, excluding
from
such calculation any Loans held by the Defaulting Lenders; provided however,
that at
any time after the Third Amendment Closing Date, Required Lenders shall mean
(a)
Lenders (who are not Defaulting Lenders) holding in the aggregate at least
a
majority of the aggregate outstanding principal balance of the Term Loans B,
excluding from such calculation any Loans held by the Defaulting Lenders, and
(b) Lenders (who are not Defaulting Lenders) holding in the aggregate at least
a
majority of the aggregate outstanding principal balance of the Term Loans C,
excluding from such calculation any Loans held by the Defaulting
Lenders."
"Term
Loan Commitment:
the
Term Loan A Commitments, Term Loan B Commitments and Term Loan C
Commitments."
(b) This
Agreement and the Third Amendment to Side Letter Agreement shall be included
within the definition of "Loan
Documents"
for the
purposes of the Credit Agreement.
8. Article
II Amendments.
(a) Section
2.02(b)
of the
Credit Agreement is hereby amended to read in its entirety as
follows:
"(b) Determination
of Interest Rate for Loans.
Except
as hereinafter provided, the interest rate charged by the Lenders in respect
to
the Loans shall be either (1) the applicable LIBOR Rate pursuant to a Notice
of
Conversion or Continuation effective on the first day of the Interest Period,
plus
ten
percent (10.00%), or, (2) if such LIBOR Rate is not available or published,
or
at Borrowers' option, the Base Rate."
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(b) Section
2.02(d)
of the
Credit Agreement is hereby amended to read in its entirety as
follows:
"(d) Interest
Payment Dates.
Interest on the Revolving Credit Loans, Term Loans A and Letter of Credit Fees
shall accrue as of and after the date hereof and shall be due and payable by
Borrowers, jointly and severally, in arrears, without setoff, deduction or
counterclaim on the first day of each month, commencing March 1, 2008, and
on
the Maturity Date, whether by reason of acceleration, prepayment, payment or
otherwise. Interest on the Term Loans B shall accrue as of and after the date
hereof and shall be due and payable by Borrowers, jointly and severally, in
arrears, without setoff, deduction or counterclaim on the first Business Day
of
each month, commencing March 1, 2008, and on the Maturity Date, whether by
reason of acceleration, prepayment, payment or otherwise. Interest on the Term
Loans C shall accrue as of and after the date hereof and shall be due and
payable by Borrowers, jointly and severally, in arrears, without setoff,
deduction or counterclaim on the first Business Day of each month, commencing
July 1, 2008, and on the Maturity Date, whether by reason of acceleration,
prepayment, payment or otherwise."
(c) Section
2.02(e)
of the
Credit Agreement is hereby amended to read in its entirety as
follows:
"(e) Effect
of Defaults, Etc.
(i)
During the existence of any Default or Event of Default, the outstanding
principal balance under the Loans and, to the extent permitted by applicable
law, overdue interest, fees, expenses or other amounts payable hereunder or
under the other Loan Documents, shall bear interest, from and including the
date
such Event of Default occurred until such Event of Default is cured or waiver
in
writing as provided herein, at a rate per annum (the "Default
Rate")
(computed on the basis of the actual number of days elapsed over a 360-day
year)
equal to three percent (3.00%) above the interest rate(s) otherwise applicable
hereunder; and the Letter of Credit fee provided for herein shall be increased
by three percent (3.00%) above the per annum rate otherwise applicable
hereunder.
(ii)
If
any installment of interest is not paid within ten (10) days of its due date,
Borrowers shall, to the extent permitted by law, pay to Billing Agent for the
account of Lenders holding the delinquent interest obligations, a late and
handling charge equal to five percent (5%) of the unpaid portion of such overdue
installment.
(iii)
Nothing in this Section
2.02(e)
shall
affect the rights of Administrative Agent, Collateral Agent or Lenders to
exercise any rights or remedies under the Loan Documents or applicable law
arising upon the occurrence and continuance of an Event of
Default."
(d) Section
2.05(b)(ii)
of the
Credit Agreement is hereby amended to read in its entirety as
follows:
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"(ii)
Dispositions
of Assets.
Without
limiting the obligation of Borrowers under Section
7.03
to
obtain the consent of the Required Lenders to any Disposition not otherwise
permitted hereunder, Borrowers agree (A) three (3) Business Days prior to the
occurrence of any Disposition, to deliver to Billing Agent (in sufficient copies
for each Lender) a statement, certified by a Duly Authorized Officer of Borrower
Representative and in reasonable detail, of the amount of the Net Cash Proceeds
of such Disposition and (B) that in the event any Disposition is closed,
Borrowers shall prepay the Loans on the date of such Disposition in an aggregate
amount equal to 100% of such Net Cash Proceeds; provided that
if (i)
the Borrowers or any of their Subsidiaries receive the proceeds of any
Disposition of a Waived Station Sale on or after October 22, 2008 and (ii)
no
Default or Event of Default has occurred, then Borrowers shall prepay the Loans
on the date of receipt of such proceeds in an aggregate amount equal to 80%
of
the Net Cash Proceeds of such Waived Station Sale Disposition and all remaining
Net Cash Proceeds for such Disposition shall be deposited in the Reserve."
(e) Section
2.05(c)(iv)
of the
Credit Agreement is hereby amended to read in its entirety as
follows:
"(iv)
All
payments shall be remitted to Collateral Agent and all such payments (other
than
payments received while no Default or Event of Default has occurred and is
continuing and which relate to the payment of principal or interest of specific
Obligations then due or which relate to the payment of specific fees then due),
and all proceeds of Collateral received by Collateral Agent, shall be applied
as
follows:
A.
first,
to pay any expenses then due to Administrative Agent and the Collateral Agent
and any indemnities owed to the Administrative Agent and the Collateral Agent
pursuant to the Loan Documents, each on a ratable basis, under the Loan
Documents, until paid in full;
B.
second, to pay any expenses then due to Lenders (other than the Term Loan B
Lenders and Term Loan C Lenders) and any indemnities owed to the Lenders (other
than the Term Loan B Lenders and Term Loan C Lenders) pursuant to the terms
of
the Loan Documents, each on a ratable basis, under the Loan Documents, until
paid in full;
C.
third,
to pay any fees then due to Administrative Agent and Collateral Agent pursuant
to the terms of this Agreement, on a ratable basis, under the Loan Documents
until paid in full;
D.
fourth, to pay any fees then due to Lenders (other than the Term Loan B Lenders
and Term Loan C Lenders) under the Loan Documents, on a ratable basis, until
paid in full;
E.
fifth,
ratably to pay interest due in respect of the Loans (other than the Term Loans
B
and Term Loans C) until paid in full;
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F.
sixth,
to pay the principal of all Revolving Credit Loans until paid in full (provided,
however, that each Revolving Credit Lender shall have the right to waive payment
under this paragraph (F) in its sole discretion, in which case the proceeds
shall be applied as set forth in the paragraphs below);
G.
seventh, so long as no Default or Event of Default has occurred and is
continuing, to pay the principal of all Term Loans A until paid in full
(provided, however, that each Term Loan A Lender shall, with the consent of
the
Administrative Agent which shall not be unreasonably withheld, have the right
to
waive full payment under this paragraph (G) in its sole discretion, in which
case a portion of the sums available after application of the foregoing
paragraphs shall be used to pay the principal of all Term Loans until paid
in
full, such portion to be equal to a fraction of such sums, the numerator of
which fraction is the unpaid principal balance of all Term Loans and the
denominator of which fraction is the unpaid principal balance of all Term Loans,
and the remaining portion of the proceeds shall be applied as set forth in
the
paragraphs below);
H.
eighth, so long as no Default or Event of Default has occurred and is
continuing, to pay expenses and fees then due to the Term Loan B Lenders and
indemnities owed to the Term Loan B Lenders pursuant to the Loan
Documents;
I.
ninth,
so long as no Default or Event of Default has occurred and is continuing, to
pay
interest due to Term Loan B Lenders in respect of the Term Loans B and to pay
the principal of all Term Loans B until paid in full;
J.
tenth,
so long as no Default or Event of Default has occurred and is continuing, to
pay
expenses and fees then due to the Term Loan C Lenders and indemnities owed
to
the Term Loan C Lenders pursuant to the Loan Documents;
K.
eleventh, so long as no Default or Event of Default has occurred and is
continuing, to pay interest due to Term Loan C Lenders in respect of the Term
Loans B and to pay the principal of all Term Loans C until paid in
full;
L.
twelfth, if a Default or an Event of Default has occurred and is continuing,
to
Collateral Agent, to be held by Collateral Agent, for the ratable benefit of
Issuing Lender and those Revolving Credit Lenders having a Revolving Credit
Commitment, as cash collateral in an amount up to 105% of the then extant Letter
of Credit Usage until paid in full;
M.
thirteenth, if a Default or an Event of Default has occurred and is continuing,
to pay the principal of all Term Loans A until paid in full;
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N.
fourteenth, if a Default or an Event of Default has occurred and is continuing,
to pay expenses, fees and interest due to Term Loan B Lenders in respect of
the
Term Loans B, to pay indemnities owed to the Term Loan B Lenders pursuant to
the
Loan Documents, and to pay the principal of all Term Loans B until paid in
full;
O.
fifteenth, if a Default or an Event of Default has occurred and is continuing,
to pay expenses, fees and interest due to Term Loan C Lenders in respect of
the
Term Loans C, to pay indemnities owed to the Term Loan C Lenders pursuant to
the
Loan Documents, and to pay the principal of all Term Loans C until paid in
full;
P.
sixteenth, to pay any other Obligations until paid in full; and
Q.
last,
to Borrowers or such other Person entitled thereto under applicable
law."
(f) Section
2.13(a)
of the
Credit Agreement is hereby amended to read in its entirety as
follows:
"(a)
Except to the extent otherwise provided herein, except with respect to the
fees
payable to Administrative Agent and its Affiliates pursuant to the Fee Letter
and fees payable to Collateral Agent, and except as otherwise agreed by each
Lender: (i) each borrowing from Revolving Credit Lenders shall be made from
Revolving Credit Lenders pro rata
according to the amounts of their respective Revolving Credit Commitments;
(ii)
each borrowing from Term Loan Lenders of any class shall be made from Term
Loan
Lenders of such class pro rata according to the amounts of their respective
Term
Loan Commitments in respect of such class; (iii) each payment and prepayment
of
principal of the Revolving Credit Loans shall be allocated to Revolving Credit
Lenders pro rata in accordance with the outstanding principal amount of the
Revolving Credit Loans owed to such Revolving Credit Lenders; (iv) each payment
of interest on the Revolving Credit Loans shall be allocated to Revolving Credit
Lenders pro rata
in
accordance with the outstanding principal amount owed to such Revolving Credit
Lenders; (v) each payment and prepayment of principal of, and each payment
of
interest on, the Term Loans A shall be allocated to Term Loan A Lenders pro
rata
in accordance with the outstanding principal amount owed to such Term Loan
A
Lenders in respect of Term Loans A; (vi) each payment and prepayment of
principal of, and each payment of interest on, the Term Loans B shall be
allocated to Term Loan B Lenders pro rata in accordance with the outstanding
principal amount owed to such Term Loan B Lenders in respect of Term Loans
B;
(vii) each payment and prepayment of principal of, and each payment of interest
on, the Term Loans C shall be allocated to Term Loan C Lenders pro rata in
accordance with the outstanding principal amount owed to such Term Loan C
Lenders in respect of Term Loans C; (viii) each payment of Unused Line Fees
shall be allocated to Revolving Credit Lenders pro rata in accordance with
their
respective Revolving Credit Commitments; (ix) each payment of any other sums
and
charges payable for Lenders' account under this Agreement (except for the fees
under the Fee Letter) shall be allocated, as applicable, to Revolving Credit
Lenders pro rata in accordance with their respective Revolving Credit
Commitments and Term Loan Lenders in accordance with the outstanding principal
amounts of the Term Loans owed to such Term Loan Lenders; (x) each reduction
in
the Aggregate Revolving Credit Commitments under Section
2.05
shall
reduce the Revolving Credit Lenders' Commitments pro rata in accordance with
their respective Revolving Credit Commitments immediately preceding each such
reduction; (xi) each payment under Section
2.07,
2.09
or
2.10
shall be
made to each Lender in the amount required to be paid to such Lender as provided
in such Section; and (xii) notwithstanding the foregoing, after and during
the
continuance of a Default, each distribution of cash, property, securities or
other value received by any Lender, directly or indirectly, in respect of
Borrowers' Obligations hereunder, whether pursuant to any attachment,
garnishment, execution or other proceedings for the collection thereof or
pursuant to any bankruptcy, reorganization, liquidation or other similar
proceeding or otherwise, after payment of collection and other expenses as
provided herein and in the Security Documents, shall, subject to Section
2.05(c)(iv),
be
apportioned among Lenders pro rata based upon the respective aggregate unpaid
principal amount of all Loans owed to each of them."
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9. Article
IV Amendment.
Article IV
of the
Credit Agreement is hereby amended by adding new Section
4.26
to read
in its entirety as follows:
"Section
4.26.
Excluded
Borrowers.
As of
the Third Amendment Closing Date, none of the Excluded Borrowers holds or owns
any assets or has any rights to acquire any assets, whether or not such assets
would constitute Collateral."
10. Article
VI Amendments.
Article
VI
of the
Credit Agreement is hereby amended by adding new Sections
6.14,
6.15,
6.16,
6.17, 6.18 and 6.19 to
read
in their entirety as follows:
"Section
6.14.
Dispositions.
(a)
Use
reasonable best efforts to cause the assets subject to the RTN Disposition
to be
sold to a new buyer at a price in excess of the option price with respect to
such assets under the RTN Purchase Agreement not later than one hundred eighty
(180) days following the execution of the RTN Purchase Agreement and on terms
reasonably satisfactory to Administrative Agent (a transaction meeting such
requirements, an "Option
RTN Sale").
Without limiting the generality of the foregoing, Borrowers agree to (i) prepare
or cause to be prepared and distributed an information memorandum with respect
to the assets subject to the RTN Disposition not later than thirty (30) days
following the execution of the RTN Purchase Agreement, (ii) use reasonable
best
efforts to close and fund an Option RTN Sale not later than one hundred eighty
(180) days following the execution of the RTN Purchase Agreement and (iii)
at
all times after the Third Amendment Closing Date, continue to retain Xxxxxx
Xxxxxx Partners Group, Inc., or any other investment bank of recognized national
standing reasonably acceptable to the Administrative Agent, to market the assets
subject to the RTN Disposition to be sold to third party buyers.
(b)
Use
reasonable best efforts to cause the assets subject to each Waived Station
Sale
to be sold to a new buyer at a price in excess of the price with respect to
such
assets under the related Waived Station Purchase Agreement prior to the date
that the asset sale contemplated by the Waived Station Purchase Agreement is
consummated and on terms reasonably satisfactory to Administrative
Agent.
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(c)
Within five (5) days after the execution of any bona fide purchase agreement
with third parties for Dispositions, Borrowers shall file (or cause to be filed)
with the FCC all documents that are necessary or advisable to be filed with
the
FCC to effectuate such Disposition.
(d)
Upon
each request of Administrative Agent, Borrowers shall provide Agents and Lenders
with updates as to Borrowers' progress in satisfying each of its obligations
under this Sections
6.14
(including the participation of its appropriate advisers, brokers and other
applicable representatives).
(e)
Except for the exercise of rights which require consent of the Lenders, enforce
all of their rights and remedies under each Xxxxx Agreement.
(f)
Ensure that no amendment, restatement, supplement, waiver or other modification
is made to, or right or remedy exercised under, any Xxxxx Agreement unless
the
Required Lenders consent thereto in their sole discretion.
Section
6.15.
Appointment
of Board Observer.
Permit a
representative of the Lenders (a "Non-Voting
Observer")
to be
present as a non-voting observer at each meeting or teleconference of the board
of directors or any duly authorized committee thereof (the "Board")
of
each Borrower, and the Non-Voting Observer shall receive from such Borrower
reimbursement of reasonable expenses incurred in connection with attending
all
meetings of the Board. The Non-Voting Observer shall have the right to attend
meetings of the Board in person or telephonically, and such Non-Voting Observer
shall be notified of any such meetings, including such meeting's time and place,
in the same manner as the members of the Board. The Non-Voting Observer shall
not constitute a member of the Board and shall not be entitled to vote on any
matter presented to the Board but may observe (but not participate in) any
discussions of such matters. Each Borrower shall (a) provide the Non-Voting
Observer with all financial and operational information regarding such Borrower
that is prepared for or provided to its Board, at the time it is so prepared
or
provided and (b) advise the Non-Voting Observer of material determinations
made
by its Board at the time such determinations are made and provide copies of
the
minutes of meetings of such Board; provided that each Board shall have the
right
to exclude the Non-Voting Observer from attending any proceedings of such Board
and from receiving any such information (i) to the extent the subject matter
of
such proceeding or information relates directly to this Agreement or (ii) if
(in
the reasonable opinion of counsel to such Borrower) such attendance or receipt
could prejudice any attorney-client privilege of such Borrower or could violate
any law, and in each case so long as such exclusion is not used as a means
to
circumvent the obligation of such Borrower to provide access and information
to
the Non-Voting Observer.
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Section
6.16.
Maintain
Independent Directors.
Comply
with the rules promulgated by The NASDAQ Stock Market LLC (but subject to
any applicable grace periods for compliance set forth in such
rules) requiring that at least a majority of the board of directors of
EMHC is comprised of independent directors (as defined in accordance with such
rules).
Section
6.17. Retransmission
Agreements.
Not
enter into any new or revised retransmission agreement or related agreement
(including without limitation any amendments, restatements, supplements, waivers
or other modifications thereto) without prior written notice to the
Administrative Agent and on terms that are reasonably satisfactory to the
Administrative Agent.
Section
6. 18. Update
on Performance.
Within
15 days prior to September 1, 2008, the Borrowers shall provide the Lenders
with
an update on the Borrowers’ financial performance and progress on cost cutting
and asset sale initiatives, together with such other information any Lender
shall reasonably request.
Section
6.19. Post-Closing Matters. The
Borrowers shall satisfy the requirements set forth on Exhibit D on or before
the
date specified for such requirement."
11. Article
VII Amendments.
Section
7.03
of the
Credit Agreement is hereby amended to read in its entirety as
follows:
"Section
7.03.
Dispositions
of Assets; Etc.
Sell,
lease, transfer or otherwise dispose of its properties, assets, rights, licenses
and franchises to any Person (including without limitation dispositions in
exchange for similar assets and properties and commonly referred to as "asset
swaps"), except for (a) Dispositions not required by Section
6.11
made in
the ordinary course of business of property with an aggregate fair market value
not to exceed $250,000 in any single transaction or $500,000 in the aggregate
over the term of this Agreement (including the disposition, without replacement,
of equipment and real estate which is obsolete or no longer needed by the
Borrowers in the conduct of their businesses), (b) Dispositions consisting
of
the replacement of equipment with other equipment of at least equal utility
and
value (provided that the Lien upon such newly acquired equipment securing the
Obligations shall have the same priority as the Lien upon the replaced
equipment) and (c) Dispositions made with the written consent of the Required
Lenders (all Dispositions described in this sentence, collectively, the
"Permitted
Dispositions")."
12. Article
VII Amendments.
Article
VII
of the
Credit Agreement is hereby amended by adding new Sections
7.16 and 7.17 to
read
in their entirety as follows:
"Section
7.16. Press
Releases and Disclosure.
Issue
any press release or other public disclosure on or prior to the Maturity Date,
including, without limitation, any proxy statement or other materials filed
with
any Governmental Authority using the name of any of the Lenders or referring
to
this Agreement, the Credit Agreement or the other Loan Documents, without at
least 2 Business Days’ prior notice to the Administrative Agent and the prior
written consent of the Administrative Agent (such consent not to be unreasonably
withheld, delayed or conditioned), unless (and only to the extent that) such
Borrower is required to do so under a mandatory provision of applicable law
and
then, in any event, such Borrower will consult with and provide a reasonable
opportunity for review by the Administrative Agent (as practicable under the
circumstances) before issuing such press release or other public disclosure.
The
Borrowers agree that not withstanding the foregoing, no disclosure shall be
made
with respect to the transactions contemplated by this Agreement without the
prior written consent of the Administrative Agent.
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Section
7.17. Assets Acquired by Excluded Borrowers. Sell,
lease or transfer properties, assets, rights, licenses and franchises to any
Excluded Borrower (including without limitation sales, leases or transfers
in
exchange for similar assets and properties and commonly referred to as "asset
swaps") notwithstanding the fact that such sale, lease or transfer may otherwise
be permitted under this Credit Agreement and the Excluded Borrowers shall not
purchase, lease or acquire properties, assets, rights, licenses and franchises
from any other Person."
13. Article
VIII Amendments.
(a) Paragraph
(e) of
Article
VIII
of the
Credit Agreement is hereby amended by inserting the following proviso in the
last line thereof after "thereof;":
"provided further
that it
shall not be a Default or an Event of Default if any Excluded Borrower fails
to
(i) preserve, renew and keep in full force and effect its corporate,
partnership, or limited liability company existence in accordance with Section
6.01(a) or (ii) comply with Section 6.03, in each case, to the extent such
failure results from the non-payment of required franchise taxes;"
(b) Paragraph
(t)
of
Article
VIII
of the
Credit Agreement is hereby amended to read in its entirety as
follows:
"(t)
any
Borrower or any Subsidiary shall terminate or suffer termination of any network
affiliation agreement to which it is party;"
(c) Article
VIII
of the
Credit Agreement is hereby amended by deleting the word "or" at the end of
paragraphs
(s) and
(v) thereof.
(d) Article
VIII
of the
Credit Agreement is hereby amended by inserting the word "or" at the end of
paragraph
(w) thereof.
(e) Article
VIII
of the
Credit Agreement is hereby amended by adding a new paragraph
(x)
to read
in its entirety as follows:
"(x)
a
Key Person Event occurs at any time after the Third Amendment Closing
Date;"
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14. Article
X Amendments.
Section
10.01(a) of
the
Credit Agreement is hereby amended by adding a new sentence at the end thereof
to read in its entirety as follows:
"Each
Term Loan C Lender hereby irrevocably (subject to Section
10.08)
designates and appoints Silver Point, which designation and appointment is
coupled with an interest, as Billing Agent of such Lender under this Agreement
and the other Loan Documents, and each such Lender irrevocably authorizes Silver
Point to act as Billing Agent of such Lender, to take such action on its behalf
under the provisions of this Agreement and the other Loan Documents and to
exercise such powers and perform such duties as are expressly delegated to
Billing Agent by the terms of this Agreement and the other Loan Documents,
together with such other powers as are reasonably incidental thereto."
15. Representations
and Warranties of the Borrowers.
Borrowers
hereby represent and warrant to Lender Group that:
(a) Except
for the existence of the Existing Defaults, each representation and warranty
set
forth in Article
IV
of the
Credit Agreement, as amended hereby, is hereby restated and affirmed as true
and
correct as of the date hereof (except to the extent that any such
representations or warranties relate to an earlier specific date or
dates);
(b) Borrowers
have the power and authority to enter into this Agreement and all other
agreements contemplated hereby (including, without limitation, the Side Letter
Agreement, as amended), and to do all acts and things as are required or
contemplated hereunder to be done, observed and performed by the
Borrowers;
(c) Each
of
this Agreement and all other agreements to be executed by Borrowers and
contemplated hereby (including, without limitation, the Side Letter Agreement,
as amended) has been duly authorized (by all necessary corporate or limited
liability company action and otherwise), validly executed and delivered by
Borrowers and constitutes the legal, valid and binding obligation of Borrowers
enforceable against them in accordance with its terms; and
(d) The
execution and delivery of this Agreement and all other agreements to be executed
by Borrowers and contemplated hereby (including, without limitation, the Side
Letter Agreement, as amended) and Borrowers' performance hereunder and
thereunder do not and will not require the consent or approval of any
governmental authority, nor be in contravention of or in conflict with
Borrowers' respective Articles of Incorporation or similar document, or the
provisions of any statute, or any judgment, order, or indenture, instrument,
agreement, or undertaking, to which each Borrower is a party or by which each
Borrower or its assets or properties are or may become bound.
16. Conditions
to Agreement.
As
a
condition precedent to the effectiveness of this Agreement, (a) Collateral
Agent
shall have received one or more counterparts of this Agreement executed by
Borrowers and each Lender, (b) no Default (other than an Existing Default)
shall
exist on the date hereof, and (c) Borrowers shall have delivered to Lender
Group
the agreements, documents and other evidence described in Exhibit
B
attached
hereto and made a part hereof, each in form and substance acceptable to Agents.
No amendment or waiver of any condition precedent to the effectiveness of this
Agreement shall be effective unless the same shall be in writing and signed
by
Lender Group.
-
20 -
17.
Release.
(a) In consideration of the agreements of Lender Group contained herein and
for other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, each Borrower, on behalf of itself and its successors,
assigns, and other legal representatives, hereby absolutely, unconditionally
and
irrevocably releases, remises and forever discharges each Agent, each Lender,
their respective successors and assigns, and each of their respective
affiliates, subsidiaries, predecessors, directors, officers, partners,
attorneys, employees, agents and other representatives (each Lender, each Agent
and all such other Persons being hereinafter referred to collectively as the
"Releasees,"
and
individually as a "Releasee"),
of
and from all demands, actions, causes of action, suits, covenants, contracts,
controversies, agreements, promises, sums of money, accounts, bills, reckonings,
damages and any and all other claims, counterclaims, defenses, rights of
set-off, demands and liabilities whatsoever (individually, a "Claim,"
and
collectively, "Claims")
of
every name and nature, known or unknown, suspected or unsuspected, both at
law
and in equity, which any Borrower or any of its successors, assigns, or other
legal representatives, may now or hereafter own, hold, have or claim to have
against the Releasees or any of them for, upon, or by reason of any
circumstance, action, cause or thing whatsoever which arises at any time on
or
prior to the day and date of this Agreement for or on account of, or in relation
to, or in any way in connection with any of the Credit Agreement, as amended
hereby, the other Loan Documents or this Agreement or transactions thereunder
or
related thereto.
(b) Each
Borrower understands, acknowledges and agrees that the release set forth above
may be pleaded as a full and complete defense and may be used as a basis for
an
injunction against any action, suit or other proceeding which may be instituted,
prosecuted or attempted in breach of the provisions of such
release.
(c) Each
Borrower agrees that no fact, event, circumstance, evidence or transaction
which
could now be asserted or which may hereafter be discovered shall affect in
any
manner the final, absolute and unconditional nature of the release set forth
above.
(d) Each
Borrower, on behalf of itself and its respective successors, assigns, and other
legal representatives, hereby absolutely, unconditionally and irrevocably,
covenants and agrees with and in favor of each Releasee that it will not xxx
(at
law, in equity, in any regulatory proceeding or otherwise) any Releasee on
the
basis of any Claim released, remised and discharged by the Borrower pursuant
to
Section 16(a)
of this
Agreement. If any Borrower, or its respective successors, assigns, or other
legal representatives violates the foregoing covenant, each Borrower, for itself
and its successors, assigns and legal representatives, agrees to pay, in
addition to such other damages as any Releasee may sustain as a result of such
violation, all attorneys' fees and costs incurred by any Releasee as a result
of
such violation.
-
21 -
(e) As
to
each and every claim released hereunder, each Borrower hereby represents that
it
has received the advice of legal counsel with regard to the releases contained
herein, and having been so advised, specifically waives the benefit of the
provisions of Section 1542 of the Civil Code of California which provides as
follows:
"A
GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH A CREDITOR DOES NOT KNOW OR
SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE,
WHICH
IF KNOWN BY HIM OR HER, MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT
WITH
THE DEBTOR."
As
to
each and every claim released hereunder, each Borrower also waives the benefit
of each other similar provision of applicable federal or state law, if any,
pertaining to general releases after having been advised by its legal counsel
with respect thereto.
18. Corrective
Amendment.
For the
avoidance of doubt, the provision referenced in the First Amendment as Section
2.01(e) of the Credit Agreement shall be deemed to be replaced in its entirety
with Section 2.02(e) of the Credit Agreement, as amended hereby.
19. Acknowledgment
of Obligations.
The
Revolving Credit Loan and the Term Loans, together with interest accrued and
accruing thereon, the reimbursement obligations with respect to each letter
of
credit for the account of Borrowers or any affiliate, and fees, costs, expenses
and other charges now or hereafter payable by Borrowers to Lender Group, are
unconditionally owing by Borrowers, without offset, defense or counterclaim
of
any kind, nature or description whatsoever. Each Borrower warrants and
represents that it has no defenses, setoffs, claims, counterclaims or causes
of
action of any kind or nature whatsoever with respect to the
Obligations.
20. No
Further Amendments.
Except
for the amendments set forth herein or otherwise set forth in any agreement
signed by Lender Group and dated the date hereof, the text of the Credit
Agreement shall remain unchanged and in full force and effect. No waiver by
Lender Group under the Credit Agreement is granted or intended and Lender Group
expressly reserves the right to require strict compliance with the terms of
the
Credit Agreement. The waivers and amendments agreed to herein shall not
constitute or evidence a course of dealing at variance with the Credit Agreement
such as to require further notice by Lender Group to require strict compliance
with the terms of the Credit Agreement in the future.
21. Security
Documents.
All
obligations of Borrowers under the Credit Agreement, as amended hereby, shall
be
secured by a first priority security interest and Lien (subject only to
Permitted Liens) and be entitled to the benefits of the Security Documents.
All
Security Documents heretofore executed by the Borrowers shall remain in full
force and effect to secure the Obligations, and such Security Documents, as
amended hereby, are hereby ratified and affirmed.
-
22 -
22. Counterparts.
This
Agreement may be executed in multiple counterparts, each of which shall be
deemed an original and all of which, taken together, shall constitute one and
the same agreement. Delivery of an executed counterpart of this Agreement by
telefacsimile or other electronic method of transmission shall be equally as
effective as delivery of an original executed counterpart of this
Agreement
23. Applicable
Law.
THIS
AGREEMENT SHALL BE DEEMED TO BE MADE PURSUANT TO THE LAWS OF THE STATE OF
CALIFORNIA WITH RESPECT TO AGREEMENTS MADE AND TO BE PERFORMED WHOLLY IN THE
STATE OF CALIFORNIA AND SHALL BE CONSTRUED, INTERPRETED, PERFORMED AND ENFORCED
IN ACCORDANCE THEREWITH.
24. Captions.
The
captions in this Agreement are for convenience of reference only and shall
not
define or limit the provisions hereof.
25. Legal
Fees.
Borrowers
shall pay all reasonable expenses incurred by Lender Group in the drafting,
negotiation and closing of the documents and transactions contemplated hereby,
including the reasonable fees and disbursements of the Administrative Agent's
special counsels and the Collateral Agent's special counsel.
26. Successors
and Assigns.
This
Agreement shall be binding upon and inure to the benefit of Borrowers, Agents
and Lenders and their respective successors and assigns, except that the
Borrowers shall not that the right to assign any of their rights hereunder
or
delegate any of their obligations hereunder without the prior written consent
of
the Required Lenders. Any such impermissible assignment or delegation shall
be
void and of no effect.
27. Notices.
All
notices, requests, demands and other communications provided for under this
Agreement or under the Credit Agreement, as amended hereby, shall be provided
in
accordance with Section
13.03, and
if to
any Term Loan C Lender or the Billing Agent with respect to Term Loans C, shall
be sent (a) if to any Term Loan C Lender, at the address set forth on the
appropriate signature page hereto or, with respect to any assignee of the Notes
under Article XII of the Credit Agreement, at the address designated by such
assignee in a written notice to the other parties hereto and (b) if to Billing
Agent with respect to Term Loans C, to Silver Point at the address set forth
on
the appropriate signature page hereto.
-
23 -
28. Reaffirmation.
Except
as
amended hereby, the Credit Agreement, the Notes and all Security Documents
shall
remain in full force and effect and are in all respects hereby ratified and
affirmed.
(The
next page is the first signature page)
-
24 -
IN
WITNESS WHEREOF,
Administrative Agent, Collateral Agent, Billing Agent, Lenders and Borrowers
have caused this Agreement to be duly executed by their respective duly
authorized representatives, as a sealed instrument, all as of the day and year
first above written.
|
BORROWERS:
|
|
|
EQUITY
MEDIA HOLDINGS CORPORATION
|
|
|
ARKANSAS
49, INC.
|
|
|
XXXXXX
BROADCASTING, INC.
|
|
|
DENVER
BROADCASTING, INC.
|
|
|
EBC
XXXXXXXX, INC.
|
|
|
EBC
PANAMA CITY, INC.
|
|
|
EBC
SCOTTSBLUFF, INC.
|
|
|
EQUITY
NEWS SERVICES, INC., f/k/a Hispanic News Network,
Inc.
|
|
|
FORT
XXXXX 46, INC.
|
|
|
XXXXX
12, INC.
|
|
|
MARQUETTE
BROADCASTING, INC.
|
|
|
NEVADA
CHANNEL 3, INC.
|
|
|
NEWMONT
BROADCASTING CORPORATION
|
|
|
PRICE
BROADCASTING, INC.
|
|
|
PULLMAN
BROADCASTING INC.
|
|
|
REP
PLUS, INC.
|
|
|
RIVER
CITY BROADCASTING, INC.
|
|
|
ROSEBURG
BROADCASTING, INC.
|
|
|
TV
34, INC.
|
|
|
VERNAL
BROADCASTING, INC.
|
|
|
XXXXXXXX
BROADCASTING, INC.
|
|
|
EBC
MINNEAPOLIS, INC.
|
|
|
EBC
DETROIT, INC.
|
|
|
EBC
BUFFALO, INC.
|
|
|
EBC
WATERLOO, INC.
|
|
|
EBC
ATLANTA, INC.
|
|
|
EBC
SEATTLE, INC.
|
|
|
EBC
KANSAS CITY, INC.
|
|
By:
|
||
|
Name:
|
||
|
Title:
|
||
|
EBC
SYRACUSE, INC.
|
|
|
NEVADA
CHANNEL 6, INC.
|
|
|
EBC
PROVO, INC.
|
|
|
EBC
SOUTHWEST FLORIDA, INC.
|
|
|
EBC
LOS ANGELES, INC.
|
|
|
C.A.S.H.
SERVICES, INC. f/k/a Skyport Services,
Inc.
|
|
|
EBC
NASHVILLE, INC
|
|
|
EBC
JACKSONVILLE, INC.
|
|
|
CENTRAL
ARKANSAS PAYROLL COMPANY
|
|
|
EQUITY
INSURANCE COMPANY
|
|
|
KLRA,
INC.
|
|
|
EBC
POCATELLO, INC.
|
|
|
EBC
WICHITA FALLS, INC.
|
|
|
EBC
MT. XXXXXX, INC.
|
|
|
EBC
BOISE, INC.
|
|
|
EBC
ST. LOUIS, INC.
|
|
|
LA
GRANDE BROADCASTING, INC.
|
|
|
XXXXXXXXXX
22, INC.
|
|
|
SHAWNEE
BROADCASTING, INC.
|
|
|
EBC
WACO, INC.
|
|
|
WYOMING
CHANNEL 2, INC.
|
|
By:
|
||
|
Name:
|
||
|
Title:
|
||
|
ADMINISTRATIVE
AGENT,
DOCUMENTATION
AGENT AND BILLING
AGENT:
|
||
|
SILVER
POINT FINANCE, LLC, as
Administrative
Agent, Documentation Agent and
Billing
Agent
|
||
|
By:
|
||
|
Name:
|
||
|
Title:
|
||
|
Address
for Notices to Silver Point Finance, LLC
|
||
|
Two
Xxxxxxxxx Xxxxx
|
||
|
Xxxxxxxxx,
Xxxxxxxxxxx 00000
|
||
|
Attention:
Xxxxx Xxxxxxxx
|
||
|
Telecopy
No.: (000) 000-0000
|
||
|
COLLATERAL
AGENT AND
BILLING
AGENT: |
||
|
XXXXX
FARGO FOOTHILL, INC.,
|
||
|
as
Collateral Agent and Billing Agent
|
||
|
By:
|
||
|
Name:
|
||
|
Title:
|
||
|
Address
for Notice to Xxxxx Fargo Foothill, Inc.
|
||
|
0000
Xxxxxxxx Xxxxxx, Xxxxx 0000 Xxxx
|
||
|
Xxxxx
Xxxxxx, Xxxxxxxxxx 00000
|
||
|
Attention:
Group Credit Manager – Specialty Finance Group
|
||
|
Telecopy
No.: (000) 000-0000
|
||
|
LENDER:
|
||
|
SPCP
GROUP, LLC
|
||
|
By:
|
||
|
Name:
|
||
|
Title:
|
||
|
Address
for Notices to SPCP Group, LLC:
|
||
|
Two
Xxxxxxxxx Xxxxx
|
||
|
Xxxxxxxxx,
XX 00000
|
||
|
Attention:
Xxxxx Xxxxxxxx
|
||
|
Telecopy
No.: (000) 000-0000
|
||
|
LENDER:
|
||
|
SPF
CDO I, LTD.
|
||
|
By:
|
||
| Name: | ||
|
Title:
|
||
|
Address
for Notices to SPF CDO I, LTD.:
|
||
|
Two
Xxxxxxxxx Xxxxx
|
||
|
Xxxxxxxxx,
XX 00000
|
||
|
Attention:
Xxxxx Xxxxxxxx
|
||
|
Telecopy
No.: (000) 000-0000
|
||
|
LENDER:
|
||
|
FIELD
POINT III, LTD.
|
||
|
By:
|
||
|
Name:
|
||
|
Title:
|
||
|
Address
for Notices to FIELD POINT III, LTD:
|
||
|
Two
Xxxxxxxxx Xxxxx
|
||
|
Xxxxxxxxx,
XX 00000
|
||
|
Attention:
Xxxxx Xxxxxxxx
|
||
|
Telecopy
No.: (000) 000-0000
|
||
|
LENDER:
|
||
|
FIELD
POINT IV, LLC
|
||
|
By:
|
||
|
Name:
|
||
| Title: | ||
|
Address
for Notices to FIELD POINT IV, LTD:
|
||
|
Two
Xxxxxxxxx Xxxxx
|
||
|
Xxxxxxxxx,
XX 00000
|
||
|
Attention:
Xxxxx Xxxxxxxx
|
||
|
Telecopy
No.: (000) 000-0000
|
||
|
LENDER:
|
||
|
XXXXX
FARGO FOOTHILL, INC.
|
||
|
By:
|
||
|
Name:
|
||
|
Title:
|
||
|
Address
for Notice to Xxxxx Fargo Foothill, Inc.
|
||
|
0000
Xxxxxxxx Xxxxxx, Xxxxx 0000 Xxxx
|
||
|
Xxxxx
Xxxxxx, Xxxxxxxxxx 00000
|
||
|
Attention:
Group Credit Manager – Specialty Finance Group
|
||
|
Telecopy
No.: (000) 000-0000
|
||
EXHIBIT
A
EXISTING
EVENTS OF DEFAULTS
1. Borrowers'
Default in paying interest under the Credit Agreement when due and payable
on
March 1, 2008, April 1, 2008 and May 1, 2008.
2. The
occurrence of an Event of Default caused by the funding of the Additional Term
Loans B which results in the aggregate amount of all Loans and Letter of Credit
Usage exceeding the limits set forth in Sections 2.01(a)(i)(2) and 2.01(c)(i)(B)
of the Credit Agreement
3. A
Default
or Event of Default occurring as a result of an inability of the Borrowers
to
repeat certain warranties and representations as of the date hereof by reason
of
the following:
a. Section
4.01: To the extent that the Borrowers' have been tardy in their delivery to
the
Agents in a timely manner prior to the date hereof of all financial statements
required by the Credit Agreement.
b. Section
4.06(a): To the extent that the Borrowers are at present late on payment under
satellite agreement, programming agreement or other material
agreement.
c. Section
4.11(b): To the extent that the Borrowers have need for additional funding
as
evidenced by the Term Loans C.
d. Section
4.11(e): To the extent that the Side Letter Agreement requires Borrowers to
engage in sale of Stations which may constitute a plan to liquidate properties
for the purposes of this Section.
e. Section
4.24 To
the
extent that Borrowers' requirements for additional funding hereunder and failure
to pay certain expenses disclosed to Agents would be deemed to cause a Material
Adverse Effect.
f. Section
4.25 To the extent that Borrowers failed to make required payments to Agents
under the Credit Agreement prior to date hereof.
4.
Default
under Section 5.06 by reason of Borrowers' failure to achieve Minimum EBITDA
and
Revenues required thereby for January 2008, February 2008, March 2008, April
2008 and May 2008.
5. Default
under Section 6.05(e) for Borrowers' failure to deliver Budget required thereby
prior to the date hereof.
EXHIBIT
B
CONDITIONS
TO CLOSING THIRD AMENDMENT
|
1.
|
Secured
Promissory Notes evidencing the Term Loans
C
|
|
2.
|
Certificate
of Chief Financial Officer or Chief Executive Officer certifying
as to the
absence of any Defaults (other than Existing Defaults) as of the
date
hereof
|
|
3.
|
Certificate
of Secretary of Borrowers certifying as to authority and incumbency
of
officer executing agreements and attaching copies of the resolutions
of
the Borrowers approving this Agreement, the Third Amendment to Side
Letter
Agreement, and the Xxxxx Agreements
|
|
4.
|
Revolving
Credit Loans and Term Loans A Payoff Letter, duly executed by the
parties
thereto
|
|
5.
|
Satisfactory
evidence that the RTN Disposition shall have been (or shall be
simultaneously) consummated pursuant to the RTN Purchase Agreement,
and no
provision thereof shall be subject to any waiver, amendment or other
modification without the consent of the Required
Lenders
|
|
6.
|
Satisfactory
evidence that the Loans shall be prepaid as provided in Section
2.05(c)
with the proceeds of the RTN Disposition and the Warrant Issuance
in
accordance with the Funds Flow Memorandum dated as of the date hereof
and
the Revolving Credit Commitments have been terminated in accordance
with
the Revolving Credit Loans and Term Loans A Payoff Letter dated as
of the
date hereof
|
|
7.
|
Satisfactory
evidence that Collateral Agent, for the benefit of the Lenders, shall
have
a valid, perfected, first priority security interest in the rights
of EMHC
and its Subsidiaries under the Xxxxx
Agreements
|
|
8.
|
Satisfactory
evidence that Borrowers shall have deposited (or shall be simultaneously
depositing) into the Reserve all amounts required to be deposited
in
accordance with the Funds Flow Memorandum dated as of the date hereof
|
|
9.
|
Documentation
satisfactory to Agents pursuant to which each Subsidiary of EMHC
that is
not currently a Borrower shall become a Borrower under the Credit
Agreement and shall secure the Obligations under the Credit Agreement
by a
valid, perfected, first priority (except for Permitted Liens) security
interest in all of their assets
|
EXHIBIT
C
ALLOCATION
OF TERM LOANS C
|
Term Loan C Lender
|
Term Loan C Maximum Commitment
|
|||
|
SPCP
Group, LLC
|
$
|
5,068,412.77
|
||
|
SPF
CDO I, Ltd.
|
$
|
1,431,587.23
|
||
EXHIBIT
D
POST-CLOSING
MATTERS
| 1. |
Execute
amendments to the existing account control agreements with Little
Rock
Bank within ten (10) Business Days of the date hereof, in the form
attached hereto as Exhibit
D-1.
|
| 2. |
Execute
account control agreements with Bancorpsouth, One Bank & Trust,
American National, Bank One, 1st
National Bank, Bank of America, Commerce Bank, Zions Bank, TCF Bank
and
MidFirst Bank within twenty (20) days of the date hereof for each
of the
bank accounts listed on Annex D-1 hereto, in form and substance
satisfactory to the Administrative Agent and the Collateral
Agent
|
| 3. |
Use
reasonable best efforts to cause Montana Broadcasting Group, Inc.
and
Montana Licensing Sub, Inc. (a) become Borrowers under the Credit
Agreement and (b) grant a first-priority security interest in their
assets
to the Collateral Agent following the termination or settlement of
the
credit agreement to which each is a party on the date hereof
|
| 4. |
Furnish
to the Administrative Agent within twenty-one (21) days of the date
hereof
a cost reduction and cash improvement plan setting forth in reasonable
detail the Borrowers' proposed cost reduction and cash improvement
initiatives and timetable for implementation thereof.
|
EXHIBIT
D-1
POST-CLOSING
MATTERS: FORM OF ACCOUNT CONTROL AGREEMENT
AMENDMENT
[Attach
form of Account Control Agreement Amendment]
ANNEX
D-1
SCHEDULE
OF BANK ACCOUNTS
|
COMPANY
|
|
ACCT
#'S
|
|
BANKS
|
|
|
CAPC-PAYROLL
|
|
|
Bancorpsouth
|
||
|
CAPC-PAYROLL
|
|
|
Bancorpsouth
|
||
|
EBC\OTHER
|
|
|
Bancorpsouth
|
||
|
EBC\OTHER
|
|
|
One
Bank & Trust
|
||
|
XXXXXX-DEPOSIT
|
|
|
American
National
|
||
|
DETROIT-DEPOSIT
|
|
|
Bank
One
|
||
|
FT.XXXXX-DEPOSIT
|
|
|
Ist
National Bank
|
||
|
KANSAS
CITY-DEPOSIT
|
|
|
Bank
of America
|
||
|
XXXXX-12-DEPOSIT
|
|
|
Zions
Bank
|
||
|
MINNEAPOLIS-DEPOSIT
|
|
|
TCF
Bank
|
||
|
PULLMAN-DEPOSIT
|
|
|
Bank
of America
|
||
|
SPRINGFIELD-DEPOSIT
|
|
|
Commerce
Bank
|
||
|
TV
34-DEPOSIT
|
|
|
Ist
National Bank
|
||
|
XXXXXXXX-DEPOSIT
|
|
|
|
MidFirst
Bank
|
|
SCHEDULE
5
|
Position
|
Key
Person
|
||
|
Chief
Executive Officer:
|
Xxxx
Xxxxxxxx
|
||
|
Chief
Financial Officer:
|
Xxxxxxx
Xxxxx
|
||
|
Chief
Strategy Officer:
|
|
Xxxx
Xxxxxxx
|
|
