FOURTH AMENDMENT TO SECOND AMENDED AND RESTATED CREDIT AGREEMENT
Exhibit 10.25
FOURTH AMENDMENT TO SECOND AMENDED
AND RESTATED CREDIT AGREEMENT
AND RESTATED CREDIT AGREEMENT
This FOURTH AMENDMENT TO SECOND AMENDED AND RESTATED CREDIT AGREEMENT (this
“Amendment”), dated as of March 31, 2006, is by and among:
| A. | EQUITY BROADCASTING CORPORATION, an Arkansas corporation, 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 POCATELLO, INC., a Nevada corporation, EBC SCOTTSBLUFF, INC., an Arkansas corporation, EBC ST. LOUIS, INC., an Arkansas corporation, FORT XXXXX 46, INC., a Nevada corporation, HISPANIC NEWS NETWORK, INC., an Arkansas corporation, LA GRANDE BROADCASTING, INC., an Arkansas corporation, XXXXX 12, INC.; an Arkansas corporation, MARQUETTE BROADCASTING, INC., a Nevada corporation, XXXXXXXXXX 22, INC., an Arkansas 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, REP PLUS, INC., an Arkansas corporation, RIVER CITY BROADCASTING, INC., an Arkansas corporation, ROSEBURG BROADCASTING, INC., a Nevada corporation, SHAWNEE BROADCASTING, INC., an Arkansas corporation, TV 34, INC., an Arkansas corporation, VERNAL BROADCASTING, INC., a Nevada corporation, XXXXXXXX BROADCASTING, INC., a Nevada corporation, WYOMING CHANNEL 2, 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, EBC BOISE, INC., an Arkansas corporation, and SKYPORT SERVICES, INC., an Arkansas corporation (together, the “Borrowers” and individually, a “Borrower”); |
| B. | FIELD POINT I, LTD., a Cayman Islands limited liability company formerly known as Silver Point Onshore CDO, LLC, as assignee of SPCP Group, L.L.C., FIELD POINT II, LTD., a Cayman Islands limited liability company formerly known as Silver Point Offshore CDO, LLC, as assignee of SPCP Group, L.L.C., SPF CDO I, LLC, a Delaware limited liability company, as assignee of SPCP |
Fourth Amendment to Amended and
Restated Credit Agreement– Page 1
Restated Credit Agreement– Page 1
1
| Group III, L.L.C., FIELD POINT III, LTD., a Cayman Islands limited liability company, and XXXXX FARGO FOOTHILL, INC., a California corporation, as lenders (together, “Lenders”); | |||
| C. | SILVER POINT FINANCE, LLC, as Administrative Agent and Documentation Agent for the Lenders (in such capacities, “Administrative Agent”); and | ||
| X. | XXXXX FARGO FOOTHILL, INC., as Collateral Agent for the Lenders (in such capacity, “Collateral Agent”); |
RECITALS
A. Each of the Borrowers, the Collateral Agent, the Administrative Agent, and certain of
the Lenders are parties to that certain Second Amended and Restated Credit Agreement dated as
of June 29, 2004 (as amended, restated, renewed, replaced, joined, supplemented or otherwise
modified from time to time, the “Credit Agreement”). Capitalized terms used herein without
definition have the meanings assigned to them in the Credit Agreement.
B. Each of the Borrowers is a party to one or more Security and Pledge Agreements (as
the same may be amended, restated, renewed, replaced, supplemented or otherwise modified from
time to time, collectively, the “Security Agreements”), pursuant to which each of the
Borrowers granted to the Collateral Agent, for the benefit of the Lenders, the liens and
security interests described therein.
C. The Borrowers, the Collateral Agent, the Administrative Agent, and certain of the
Lenders are also parties to that certain Amended and Restated Affiliate Subordination
Agreement dated as of June 29, 2004 (as the same may be amended, restated, renewed, replaced,
supplemented or otherwise modified from time to time, the “Subordination Agreement”),
providing that all Subordinated Indebtedness (as defined in the Subordination Agreement)
shall at all times be subordinate and junior to all Senior Indebtedness (as defined in the
Subordination Agreement) to the extent and in the manner set forth therein.
D. Borrowers desire to borrow an additional principal amount of $6,000,000.00, until
such time as Borrowers receive net cash proceeds from the sale of certain Stations.
E. Certain of the Lenders are willing to lend an additional $6,000,000, subject to the
terms and conditions of the Credit Agreement, as amended by this Amendment.
F. 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 sufficiency of which is hereby acknowledged by each of the
parties hereto, the parties agree as follows:
Fourth Amendment to Amended and
Restated Credit Agreement– Page 2
Restated Credit Agreement– Page 2
1. Definitions.
(a) The following definitions are added to Section 1.01 (“Definitions”) of the Credit
Agreement in appropriate alphabetical order:
“Aggregate Term Loan C Commitments: Six Million Dollars ($6,000,000.00).
“Xxxxxx Sale: The sale of all or substantially all of the assets of any of La Grande
Broadcasting, Inc., EBC Boise, Inc., and EBC Pocatello, Inc., to Xxxxxx Radio Regional
Group, Inc.
“Term Loan C Commitment: With respect to each Term Loan Lender, the commitment of
such Term Loan Lender to make Term Loans C. The amount of each Term Loan Lender’s Term Loan
C Commitment is set forth in Schedule 2.01.
“Term
Loan C Funding Date: March 31, 2006.
‘Term Loan C Lenders: Lenders holding Term Loan C Notes.
“Term
Loan C Notes: the meaning specified in Section 2.01(c)(iv).
“Term
Loans C: Loans made by Term Loan Lenders to Borrower pursuant to Section
2.01(c)(iii).”
(b) The following definitions appearing in Section 1.01 (“Definitions”) of the Credit
Agreement are hereby amended and restated to read in their entirety as follows:
“Aggregate
Term Loan Commitments: an amount calculated from time to time as
Thirty-Five Million Five Hundred Thousand Dollars ($35,500,000.00), as reduced from time to
time by aggregate reductions, if any, in the Term Loan Commitments, from time to time,
pursuant to Section 2.01(c)(vi).
“Security Document(s); the meaning specified in Section
2,16(c).
“Term Loan A Notes: the meaning specified in Section 2.01(c)(iv).
“Term Loan A Notes: the meaning specified in Section 2.01(c)(iv).
“Term
Loan B Commitment Period: the period from and including the Second Amendment
Effective Date up to, but not including, the earlier of (a) the Maturity Date and (b) the
date of the termination of the Term Loan B Commitments set forth in
Section 2.01(c)(vi).
“Term
Loan B Notes: the meaning specified in Section 2.01(c)(iv).
“Term Loans: Term Loans A, Term B, and Term Loans C.”
Fourth Amendment to Amended and
Restated Credit Agreement– Page 3
Restated Credit Agreement– Page 3
2. Article II (“General Terms”) Amendment.
(a) Section 2.01(c) of the Credit Agreement is hereby amended to read in its entirety as
follows:
“(c) Term Loan Facilities.
(i) Subject to the terms and conditions contained in this Agreement, each Term Loan A
Lender (or a predecessor-in-interest of such Term Loan A Lender) made a loan (collectively,
the “Term Loans A”) to Borrowers on the Closing Date in a principal amount equal to the
amount of such Lender’s Term Loan A Commitment.
(ii) Subject to the terms and conditions contained in this Agreement, each Term Loan B
Lender agrees to make one or more loans pursuant to this Section 2.01(c)(ii) (collectively,
the “Term Loans B”) to Borrowers on the applicable Term Loan B Funding Date in an aggregate
principal amount which does not exceed the amount of such Lender’s Term Loan B Commitment;
provided, however, that:
(A) Term Loan Lenders shall have no obligation to make any Term Loan B if,
after giving effect to any such Term Loan B, the sum of the aggregate amount of the
Term Loans B then outstanding plus the amount of the requested Term Loans B would
exceed the Aggregate Term Loan B Commitments then in effect; and
(B) the sum of (1) the aggregate then outstanding principal amount of all Term
Loans A and Term Loans B, (2) the then outstanding unpaid principal balance of
Revolving Credit Loans (after deducting therefrom the amount to be paid on such Term
Loan B Funding Date from the proceeds of the requested Term Loans B), (3) the Letter
of Credit Usage, and (4) all other Senior Debt then outstanding, shall not exceed
the lesser of (x) forty-five percent (45%) of the Compressed Sale Value of Stations,
and (y) Seventy Million Dollars ($70,000,000); and
(C) the sum of (1) the aggregate then outstanding principal amount of all Term
Loans A and Term Loans B, (2) the then outstanding unpaid principal balance of
Revolving Credit Loans (after deducting therefrom the amount to be paid on such Term
Loan B Funding Date from the proceeds of the requested Term Loans B), and (3) the
Letter of Credit Usage, shall not exceed forty-five percent (45%) of the Compressed
Sale Value of Eligible Stations.
(iii) Subject to the terms and conditions contained in this Agreement, each Term Loan
C Lender agrees to make one loan pursuant to this Section 2.01(c)(iii) (collectively, the
“Term Loans C”) to Borrowers on the Term Loan C Funding Date in an aggregate principal
amount which does not exceed the amount of such Lender’s Term Loan C Commitment;
provided, however, that:
Fourth Amendment to Amended and
Restated Credit Agreement– Page 4
Restated Credit Agreement– Page 4
(A) the sum of (1) the aggregate then outstanding principal amount of
Term Loans A and Terms Loans B, (2) the then outstanding unpaid principal balance of
Revolving Credit Loans (after deducting therefrom the amount to be paid on such Term
Loan C Funding Date from the proceeds of the requested Term Loans C), (3) the Letter
of Credit Usage, and (4) all other Senior Debt then outstanding, shall not exceed the
lesser of (x) forty-five percent (45%) of the Compressed Sale Value of Stations, and
(y) Seventy Million Dollars ($70,000,000); and
(B) the sum of (1) the aggregate then outstanding principal amount of all Term
Loans, (2) the then outstanding unpaid principal balance of Revolving Credit Loans
(after deducting therefrom the amount to be paid on such Term Loan C Funding Date
from the proceeds of the requested Term Loans C), and (3) the Letter of Credit Usage,
shall not exceed forty-five percent (45%) of the Compressed Sale Value of Eligible
Stations.
(iv) The borrowings under this Section 2.01(c) shall be evidenced by Borrowers’
Secured Promissory Notes issued to the respective Term Loan Lenders (together with any
additional Secured Promissory Notes issued to assignee(s) of the Term Loan Lenders under
Article XII or otherwise issued in addition thereto, in substitution therefor or amendment
or replacement thereof, collectively, the “Term Notes”), such Term Notes with respect to
Term Loans A to be in the form of Exhibit X-x (the “Term Loan A Notes”) attached
hereto, such Term Notes with respect to Term Loans B to be in the form of Exhibit
B-2 (the “Term Loan B Notes”) attached hereto, and such Term Notes with respect to Term
Loans C to be in the form of Exhibit B-3 (the “Term Loan C Notes”) attached hereto.
(v) Borrowers may borrow (A) Term Loans A on the Closing Date under this Section 2.01
(c) within the limits of the Aggregate Term Loan A Commitments, (B) Term Loans B on the
Term Loan B Funding Dates under this Section 2.01(c) within the limits of the Aggregate
Term Loan B Commitments and solely for the purposes set forth on Schedule 2.17 of
this Agreement, and (C) Term Loans C on the Term Loan C Funding Date under this Section
2.01(c) within the limits of the Aggregate Term Loan C Commitments and solely for the
purpose of prepaying the Revolving Loans in an amount equal to $6,000,000; provided,
however, that Borrowers shall not have the right to re-borrow principal amounts repaid
or prepaid in respect to the Term Loans. Interest on the Term Loans shall be paid as
required under Section 2.02 and under Section 2.05 in connection with all mandatory and
voluntary prepayments of the Term Loans.
(vi) The Term Loan A Commitments expired at the close of business on the Closing Date.
The Term Loan B Commitments shall expire on the date that is 18 months after the Second
Amendment Effective Date. The Term Loan C Commitments shall expire at the close of business
on the Term Loan C Funding Date.”
(b) Section 2.02(b) of the Credit Agreement is hereby amended to read in its entirety as
follows:
Fourth Amendment to Amended and
Restated Credit Agreement– Page 5
Restated Credit Agreement– Page 5
“(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 (1) the applicable LIBOR Rate for the Interest Period designated
by Borrower pursuant to a Loan Request or a Notice of Conversion or Continuation
effective on the first day of such Interest Period, plus seven percent (7.00%),
or (2) if such LIBOR Rate is not available or published, or at Borrowers’ option,
the Base Rate, or (3) if Collateral Agent has not received a Notice of Conversion
or Continuation at least three Business Days prior to the end of an Interest
Period for any portion of the Loans, then at the Base Rate from and after the end
of such Interest Period for such portion of the Loans. Notwithstanding the
foregoing, in the event that the Term Loans C have not been paid in full on or
before May 31, 2006, then on and after June 1, 2006, the interest rate otherwise
applicable to Term Loans C will be increased by the amount set forth below
effective on the date set forth below:
| Increase in Applicable Interest Rate over Rate | ||
| Applicable Date | in effect on May 31, 2006 | |
| June 1, 2006 | 0.50% per annum | |
| Sept. 1, 2006 | 1.00% per annum | |
| Dec. 1, 2006 | 1.50% per annum | |
| March 1, 2007 | 2.00% per annum |
(c) Clauses (b)(ii) and (iii) of Section 2.05 of the Credit Agreement are
hereby amended to read in their entirety as follows:
“(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
Collateral Agent (in sufficient copies for each Lender) a statement, certified by
a Duly Authorized Officer of Borrower Representative and in reasonable detail, of
the estimated amount of the Net Cash Proceeds of such Disposition and (B) that in
the event such Disposition is completed, Borrowers shall prepay the Loans as
follows and as provided in Section 2.05(c):
(1) in the event such Disposition is a sale of any of the
Stations included in the Xxxxxx Sale, on the date of such
Disposition, the Net Cash Proceeds of such Disposition shall be
applied first to the unpaid balance of the Term Loans C, until paid
in full;
(2) except to the extent such proceeds are used by Borrowers (x)
to prepay the Term Loans C in accordance with
Section 2.05(b)(ii)(l), or (y) within the Restoration Period, to reinvest such proceeds in a
Section 2.05(b)(ii)(l), or (y) within the Restoration Period, to reinvest such proceeds in a
Fourth Amendment to Amended and
Restated Credit Agreement– Page 6
Restated Credit Agreement– Page 6
substitute broadcast property reasonably acceptable to the Required
Lenders for a purchase price reasonably acceptable to the Required Lenders,
on the date of such Disposition, an aggregate amount equal to 100% of the
Net Cash Proceeds of such Disposition received by Borrowers on the date of
such Disposition (exclusive, however, of Dispositions permitted under
Section 7.03(a) in an aggregate amount not to exceed $500,000 in any
calendar year and Dispositions permitted under Section 7.03(b)) shall be
applied in accordance with Section 2.05(c); and
(3) thereafter, (except to the extent such proceeds are used by
Borrowers within the Restoration Period to reinvest such proceeds in a
substitute broadcast property reasonably acceptable to the Required
Lenders for a purchase price reasonably acceptable to the Required
Lenders) to the extent Borrowers shall receive Net Cash Proceeds under
deferred payment arrangements or investments entered into or received in
connection with any Disposition, an amount equal to 100% of the aggregate
amount of such Net Cash Proceeds, payable within two (2) Business Days
after such Borrower receives such funds shall be applied in accordance
with Section 2.05(c).
“(iii) Mandatory Reductions in Revolving Credit Commitments. All
payments of principal under Section 2.05(b)(i), (b)(ii)(B)(2)
and (b)(ii)(B)(3) shall be
applied first to the Revolving Credit Loans until paid in full, and then to the Term
Loans, and all such payments in respect to the Revolving Credit Loans as a result of the
provisions of 2.05(b)(i), (b)(ii)(B)(2) and (b)(ii)(B)(3), shall effect a simultaneous
dollar-for-dollar permanent reduction in the Aggregate Revolving Credit Commitments;
provided, however, that at the time of receipt of such proceeds from Disposition,
Casualty Event or condemnation, Borrowers may notify Collateral Agent of their intention
to use such proceeds for reinvestments permitted by this Agreement during the Restoration
Period, in which event (i) the Aggregate Revolving Credit Commitments will be reduced at
the expiration of the applicable Restoration Period in the amount of such proceeds not
utilized for permitted reinvestments by Borrowers, (ii) except to the extent that the
payment is intended to be a permanent prepayment of the Loans and corresponding permanent
reduction in the Commitments, the unpaid principal balance of the Loans after application
of such payments shall not be less than $25,000,000, and any remaining proceeds from
Disposition, Casualty Event or condemnation not so applied to payment of the Loans shall
be held in an interest-bearing deposit account maintained with a financial institution
acceptable to Collateral Agent subject to a perfected security interest in favor of
Collateral Agent for the benefit of Lenders until such proceeds are used for reinvestment
or applied to the payment of the Loans as set forth herein, and (iii) availability for
borrowings under the Revolving Credit Commitments in an amount equal to the amount of
such payments shall be restricted to permitted reinvestments in accordance with this
Agreement and within the Restoration Period. If at the expiration of said 180-day
Restoration Period, Borrowers are unable to consummate a Permitted Acquisition of
broadcast properties due solely to the fact that the FCC has not acted upon Borrowers’
filed application for consent to such acquisition, Lenders agree to extend the
Fourth Amendment to Amended and
Restated Credit Agreement– Page 7
Restated Credit Agreement– Page 7
Restoration Period’s 180-day deadline for utilization of such proceeds (so long as
no Event of Default then exists) to accommodate the delay in completing the FCC’s approval
process, to the extent that such proceeds are committed to be used by Borrowers for the
payment of the purchase price of such broadcast properties as permitted by this Agreement.”
(d) 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, on a ratable basis, under the Loan Documents, until paid in full;
B. second, to pay any expenses then due to the Lenders under the Loan
Documents, on a ratable basis, until paid in full;
C. third, to pay any fees then due to Administrative Agent and Collateral
Agent, on a ratable basis, under the Loan Documents until paid in full;
D. fourth, to pay any fees then due to 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 until paid in
full;
F. sixth, if such payment is made from proceeds of the Xxxxxx Sale, to pay the
principal of all Term Loans C until paid in full;
G. seventh, if such payment is made from proceeds of an Asset Sale, to pay
Accrued PIK Interest until paid in full;
H. eighth, to pay the principal of all Revolving Credit Loans, Term Loans A,
and Term Loans B until paid in full;
I. ninth, to pay the principal of all Term Loans C until paid in full;
J. tenth, if 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;
Fourth Amendment to Amended and
Restated Credit Agreement– Page 8
Restated Credit Agreement– Page 8
K. eleventh, to pay any other Obligations until paid in full; and
L. last, to Borrowers or such other Person entitled thereto under applicable
law.”
3. Schedules to Credit Agreement. Schedules 2.01 and 2.17 of the Credit Agreement are
hereby replaced by the Schedules attached hereto and made a part hereof, and Exhibit B-3 in the
form attached hereto is hereby added to the Credit Agreement and made a part thereof.
4. Representations and Warranties of the Borrowers.
Each Borrower hereby represents and warrants to, and agrees with, the Collateral Agent, the
Administrative Agent, and the Lenders as set forth below. Such representations and warranties
shall survive the making of the Loans.
(a) Each representation and warranty set forth in Article IV of the Credit Agreement 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) The execution and delivery of, and performance by the Borrowers of their obligations
under, the Credit Agreement, the Notes and the Subordination Agreement, as each is amended by this
Amendment have been duly authorized by all requisite corporate action and will not violate any
provision of law, any order, judgment or decree of any court or other agency of government,
Including without limitation the Organizational Documents of any of the Borrowers, or any
indenture, agreement or other instrument to which any Borrower is a party, or by which any Borrower
is bound, or be in conflict with, result in a breach of, or constitute (with due notice or lapse of
time or both) a default under, or result in the creation or imposition of any lien, charge or
encumbrance of any nature whatsoever upon any of the property or assets of such Borrower pursuant
to, any such indenture, agreement or instrument.
(c) The Borrowers have delivered to the Collateral Agent true and complete copies of all such
corporate and other resolutions as were necessary to authorize the execution, delivery and
performance of this Amendment and the transactions contemplated therein by the Borrowers, each
certified by the appropriate secretary or other officer. Each of this Amendment and the Security
Documents constitutes the valid and binding obligation of each Borrower which is party thereto,
enforceable against such Borrower in accordance with its terms, subject, however to bankruptcy,
insolvency, reorganization, moratorium and similar laws affecting the rights and remedies of
creditors generally or the application of principles of equity, whether in any action at law or
proceeding in equity, and subject to the availability of the remedy of specific performance or of
any other equitable remedy or relief to enforce any right under any
such agreement.
(d) Except for filings and recordings required under Section 2.16 of the Credit Agreement and
except as set forth on Schedule 4.04 of the Credit Agreement, no Borrower is required to obtain any
consent, approval or authorization from, or to file any declaration or statement with, any
governmental instrumentality or other agency or any other person or entity in
Fourth Amendment to Amended and
Restated Credit Agreement– Page 9
Restated Credit Agreement– Page 9
connection with or as a condition to the execution, delivery or performance of this
Amendment and the transactions contemplated thereby, except any such which have been obtained or
made.
(e) As of the date hereof and after giving effect to this Amendment, no Default has
occurred and is continuing.
(f) Except as set forth on the Second Amendment Schedule attached to the Second Amendment and
Joinder Agreement, upon execution hereof, (i) each Person controlled by EBC or in which EBC owns a
majority interest is a Borrower under the Credit Agreement, (ii) EBC has granted to Collateral
Agent a security interest in, and delivered to the Collateral Agent each certificate evidencing an
ownership interest in, each Person in which EBC has any ownership interest, (iii) EBC has granted
to Collateral Agent a security interest in each broadcasting license owned by EBC, (iv) each of the
Borrowers (other than EBC) has granted to Collateral Agent a security interest in all assets now
owned or hereafter acquired by such Borrower, including, without limitation, all broadcasting
licenses and permits held by such Borrower, and (v) each of the Borrowers has delivered to the
Collateral Agent for each deposit account maintained by such Borrower an agreement, in the form
provided by the Collateral Agent, executed by such Borrower and the depository bank for such
deposit account, whereby such depository bank agrees to comply with instructions originated by the
Collateral Agent directing disposition of the funds in such deposit account without further consent
by such Borrower.
5. No Further Amendments. Except for the amendments set forth herein or otherwise set
forth in any agreement signed by the Lenders and dated the date hereof, the Credit Agreement and
the Loan Documents shall remain unchanged and in full force and effect.
6. References in Security Documents.
All references to the “Credit Agreement” in all Security Documents and in any other documents
or agreements by and between the Borrowers and their respective Affiliates, and each of them, and
the Lenders and/or the Collateral Agent and/or the Administrative Agent shall from and after the
effective date hereof refer to the Credit Agreement, as amended hereby, and all obligations of the
Borrowers under the Credit Agreement, as amended hereby, shall be secured by and be entitled to
the benefits of said Security Documents and such other documents and agreements. All Security
Documents heretofore executed by the Borrowers and each of them shall remain in full force and
effect to secure the Notes (as defined therein), and such Security Documents, as amended hereby,
are hereby ratified and affirmed.
7. Further Agreements.
(a) Each Borrower hereby acknowledges and confirms that it does not have any grounds and
hereby agrees not to challenge (or to allege or to pursue any matter, cause or claim arising under
or with respect to) the Credit Agreement, as amended hereby, the Security Documents or any of the
other Loan Documents, any document, instrument or agreement relating to any of the foregoing, any
of the Indebtedness, covenants, promises, agreements, obligations, duties or liabilities
thereunder, or the status of any thereof as legal, valid and binding obligations enforceable in
accordance with their respective terms, and, to the best of its knowledge, it does not possess
(and hereby forever waives, remises, releases, discharges and
Fourth Amendment to Amended and
Restated Credit Agreement– Page 10
Restated Credit Agreement– Page 10
holds harmless the Lenders, the Collateral Agent, and the Administrative Agent, and their
respective parents, subsidiaries, affiliates, stockholders, directors, officers, employees,
attorneys, agents and representatives and each of their respective heirs, executors,
administrators, successors and assigns (collectively, the “Noteholder Parties”), from and against,
and agree not to allege or pursue) any action, cause of action, suit, debt, claim, counterclaim,
cross-claim, demand, defense, offset, opposition, demand and other right of action whatsoever,
whether in law, equity or otherwise (which it, all those claiming by, through or under it, or its
successors or assigns, have or may have) against the Noteholder Parties, or any of them, prior to
or as of the date of this Amendment for, upon, or by reason of, any matter, cause or thing
whatsoever, arising out of, or relating to, the Credit Agreement, as amended hereby, the Security
Documents, the Loan Documents or other any document, instrument or agreement relating to any of the
foregoing (including, without limitation, any payment, performance, validity or enforceability of
any or all of the indebtedness, covenants, promises, agreements, provisions, rights, remedies,
obligations, duties and liabilities thereunder) or any transaction relating to any of the
foregoing, or any or all actions, courses of conduct or other matters in any manner whatsoever
relating to or otherwise connected with any of the foregoing.
(b) Each of the Borrowers agrees that:
(i) Each of the Security Agreements to which it is a party remains in full force and
effect and continues to be the legal, valid and binding obligation of such Borrower
enforceable against it in accordance with its terms, subject, however to bankruptcy,
insolvency, reorganization, moratorium and similar laws affecting the rights and remedies
of creditors generally or the application of principles of equity, whether in any action at
law or proceeding in equity, and subject to the availability of the remedy of specific
performance or of any other equitable remedy or relief to enforce any right under any such
agreement.
(ii) In any of the Security Documents, from and after the date hereof, (i) all
references to “Obligations”, or any other term or provision intended to define the
indebtedness or obligations owed to Lenders secured by such Security Document, include the
Obligations as defined in the Credit Agreement as amended hereby; and (ii) all references
to the Credit Agreement constitute references to the Credit Agreement as amended hereby.
(iii) that the liens and security interests in favor of the Lenders and the Collateral
Agent for the benefit of the Lenders are valid and subsisting liens and security interests
and are superior to all liens and security interests other than those exceptions approved
by the Collateral Agent in writing or as otherwise permitted under the Credit Agreement as
amended hereby.
(c) Each Borrower acknowledges and agrees that pursuant to the Act and FCC Rules,
the Borrowers are required to file a copy of this Amendment with the FCC and that the
Borrowers shall timely file, in accordance with the Act and FCC Rules, a copy of this
Amendment and any other documents or instruments as may be required or appropriate in
connection herewith.
Fourth Amendment to Amended and
Restated Credit Agreement– Page 11
Restated Credit Agreement– Page 11
8. Conditions.
The effectiveness of this Amendment is subject to satisfaction of the following conditions:
(a) The Borrowers shall have executed and delivered to the Collateral Agent (or shall
have caused to be executed and delivered to the Collateral Agent by the appropriate Persons),
the following, in each case in form and substance satisfactory to the Collateral Agent:
(i) a Secured Promissory Note payable to the order of each of the Lenders, in the
original principal amount equal to such Lender’s Term Loan C Commitment;
(ii) an amendment to the Subordination Agreement acknowledging and permitting the
increased Aggregate Term Loan Commitments;
(iii) Certified copies (attached as required in Part A of the form attached as
Schedule 3.01 to the Credit Agreement) of all corporate or other action taken by
each Borrower and the Equity Holders of each Borrower authorizing the execution and delivery
of the Notes to which it is a party (including all resolutions authorizing the execution,
delivery and performance of this Amendment by such Borrower and the transactions
contemplated hereby, the incurrence of the Obligations and the granting of the Liens
contemplated by the Loan Documents to which it is a party, to the extent required by the
Organizational Documents applicable thereto) which have been properly adopted and have not
been modified or amended;
(iv) Such other supporting documents and certificates as the Collateral Agent, the
Administrative Agent, or the Lenders may reasonably request.
(b) Collateral Agent shall have received the favorable written opinion of general
corporate counsel to the Borrowers dated as of the date hereof, addressed to the Collateral
Agent, the Administrative Agent, and Lenders and reasonably satisfactory to the Collateral Agent in
scope and substance; and
(c) The representations and warranties of each Borrower and its Affiliates set forth in
the Credit Agreement, as amended hereby, and in the other Loan Documents shall be true and
correct in all material respects on and as of the effective date of this Amendment and each
Borrower shall have performed all obligations which were to have been performed by it
hereunder prior to the effective date of this Amendment (unless waived by the Collateral Agent
or the Required Lenders).
(d) As of the effective date of this Amendment, and since the dates of those certain
Projections attached as Schedule 4.17 to the Credit Agreement and other financial
documents delivered to the Collateral Agent prior thereto, no event or circumstance shall have occurred
which could reasonably be expected to have a Material Adverse Effect.
(e) Borrowers shall have paid (i) to the Collateral Agent on or before the effective
date of this Amendment for the ratable account of each Term Loan C Lender, a non-refundable
Fourth Amendment to Amended and
Restated Credit Agreement– Page 12
Restated Credit Agreement– Page 12
fee in the amount of $60,000, (ii) all other fees owed to the Collateral Agent, the
Administrative Agent, the Lenders and their respective Affiliates pursuant to the Credit Agreement,
as amended hereby, and (iii) all legal fees and expenses of counsel to Collateral Agent and Lenders
incurred through the date hereof.
(f) All legal matters incident to the transactions contemplated hereby shall be reasonably
satisfactory to counsel for the Collateral Agent.
9. Applicable Law.
THIS AMENDMENT 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.
10. Captions.
The captions in this Amendment are for convenience of reference only and shall not
define or limit the provisions hereof.
11. Legal Fees.
The Borrowers shall pay all reasonable out-of-pocket expenses incurred by the
Collateral Agent, the Administrative Agent, and the Lenders in the drafting, negotiation and
closing of the documents and transactions contemplated hereby, including the reasonable fees and
disbursements of the Collateral Agent’s special counsel.
12. Counterparts.
This Amendment may be executed by the parties hereto in counterparts hereof and by the
different parties hereto on separate counterparts hereof, all of which counterparts shall together
constitute one and the same agreement.
*The Next Page is the Signature Page*
Fourth Amendment to Amended and
Restated Credit Agreement– Page 13
Restated Credit Agreement– Page 13
IN WITNESS WHEREOF, the parties have caused this Amendment to be duly executed as a
sealed instrument by their duly authorized representatives, all as of the day and year first above
written.
| XXXXX FARGO FOOTHILL, INC., as Collateral Agent and Lender |
||||||
| By: Name: |
[ILLEGIBLE]
|
|||||
| Title: | VP | |||||
| SILVER POINT FINANCE, LLC, as Administrative Agent |
||||||
| By: Name: |
/s/ Xxxxxxxxx X. Xxxxx
|
|||||
| Title: | Authorized Signatory | |||||
| ADDITIONAL LENDERS: | ||||||
| FIELD POINT I, LTD. | ||||||
| By: Name : |
/s/ Xxxxxxxxx X. Xxxxx
|
|||||
| Title: | Authorized Signatory | |||||
| FIELD POINT II, LTD. | ||||||
| By: Name: |
/s/ Xxxxxxxxx X. Xxxxx
|
|||||
| Title: | Authorized Signatory | |||||
| FIELD POINT III, LTD. | ||||||
| By: Name: |
/s/ Xxxxxxxxx X. Xxxxx
|
|||||
| Title: | Authorized Signatory | |||||
Fourth Amendment to Amended and
Restated Credit Agreement– Signature Page
Restated Credit Agreement– Signature Page
| SPF CDO I, LLC | ||||||
| By: Name: |
/s/ Xxxxxxxxx X. Xxxxx
|
|||||
| Title: | Authorized Signatory | |||||
Fourth Amendment to Amended and
Restated Credit Agreement– Signature Page
Restated Credit Agreement– Signature Page
Each of the undersigned Borrowers hereby consents to and accepts the foregoing Amendment.
| EQUITY BROADCASTING CORPORATION | ||||||
| By: Name: |
/s/ Xxxxx X. Xxxxxxxxxxxx
|
|||||
| Title: | Executive Vice President | |||||
| ARKANSAS 49, INC. XXXXXX BROADCASTING, INC. DENVER BROADCASTING, INC. EBC XXXXXXXX, INC. EBC PANAMA CITY, INC. EBC POCATELLO, INC. EBC SCOTTSBLUFF, INC. EBC ST. LOUIS, INC. FORT XXXXX 46, INC. HISPANIC NEWS NETWORK, INC. LA GRANDE BROADCASTING, INC. XXXXX 12, INC. MARQUETTE BROADCASTING, INC. XXXXXXXXXX 22, INC. NEVADA CHANNEL 3, INC. NEWMONT BROADCASTING CORPORATION PRICE BROADCASTING, INC. PULLMAN BROADCASTING INC. REP PLUS, INC. RIVER CITY BROADCASTING, INC. ROSEBURG BROADCASTING, INC. SHAWNEE BROADCASTING, INC. |
||||||
| By: Name: |
/s/ Xxxxx X. Xxxxxxxxxxxx
|
|||||
| Title: | Vice President of each | |||||
Fourth Amendment to Amended and
Restated Credit Agreement– Signature Page
Restated Credit Agreement– Signature Page
| TV 34, INC. VERNAL BROADCASTING, INC. XXXXXXXX BROADCASTING, INC. WYOMING CHANNEL 2, INC. EBC MINNEAPOLIS, INC. EBC DETROIT, INC. EBC BUFFALO, INC. EBC WATERLOO, INC. EBC ATLANTA, INC. EBC SEATTLE, INC. EBC KANSAS CITY, INC. EBC SYRACUSE, INC. NEVADA CHANNEL 6, INC. EBC PROVO, INC. EBC SOUTHWEST FLORIDA, INC. EBC LOS ANGELES, INC. EBC BOISE, INC. SKYPORT SERVICES, INC. |
||||||
| By: Name: |
/s/ Xxxxx X. Xxxxxxxxxxxx
|
|||||
| Title: | Vice President of each | |||||
Fourth Amendment to Amended and
Restated Credit Agreement– Signature Page
Restated Credit Agreement– Signature Page
Exhibit B-3
TERM LOAN C SECURED PROMISSORY NOTE
| Santa Monica, California | ||
| $ | Dated as of March __, 2006 |
FOR VALUE RECEIVED, the undersigned (collectively, the “Borrowers” and individually, a
“Borrower”), hereby jointly and severally promise to pay to [Lender] (the “Payee”), or to its
order, the principal sum of [Lender’s Term Loan C Commitment] or the aggregate unpaid principal
amount of all advances made by the Payee to the Borrowers pursuant to Section 2.01(c)(iii)
of that certain Second Amended and Restated Credit Agreement, dated as of June 29, 2004, as
amended as of the date hereof, as the same may be amended, restated, renewed, replaced,
supplemented or otherwise modified from time to time hereafter (the “Credit Agreement”), by and
among the Borrowers, the Payee, the other Lenders referred to therein and Silver Point Finance,
LLC, as Administrative Agent and Documentation Agent for the Lenders, and Xxxxx Fargo Foothill,
Inc., as Collateral Agent for the Lenders (with its successors and assigns in such capacity, the
“Collateral Agent”), whichever amount is less, together with interest in arrears on any and all
principal amounts outstanding and remaining unpaid hereunder from time to time from the date
hereof until payment in full, payable on the dates and at the interest rate or rates specified in
the Credit Agreement. Capitalized terms used in this Note without definition have the meanings
assigned to them in the Credit Agreement.
The aggregate principal amount outstanding hereunder shall be payable as provided in
Section 2.04 of the Credit Agreement. This Note may be prepaid only in accordance with the
terms and provisions of the Credit Agreement.
All principal and interest hereunder are payable in lawful money of the United States of
America to the Payee c/o the Collateral Agent at its address specified in the Credit Agreement in
immediately available funds as provided in the Credit Agreement on the dates on which such payments
shall become due. Payments of principal and interest hereunder which are not made by such dates may
be made by debiting the deposit account(s), if any, in the names of the respective Borrower with the
Collateral Agent. Each Borrower hereby irrevocably authorizes the Collateral Agent to so debit such
deposit account(s).
Subject to the terms and conditions of the Credit Agreement and all other instruments or
agreements evidencing or securing the indebtedness hereunder, the Borrowers, for themselves and
their respective legal representatives, to the extent they may lawfully do so, hereby expressly
waive presentment, demand, protest, notice of protest, presentment for the purpose of accelerating
maturity, diligence in collection, and the benefit of any exemption or insolvency laws, and
consent that the Collateral Agent or the Lenders may release or surrender, exchange or substitute
any personal property or other collateral security now held or which may hereafter be held as
security for the payment of this Note, and may extend the time for payment or otherwise modify the
terms of payment of any part or the whole of the debt evidenced hereby to the extent provided in
the Credit Agreement without in any way affecting the liability of the Borrowers.
This
Note is one of the “Term Notes C” referred to in, and is entitled to the benefits of,
the Credit Agreement (including Schedules thereto) and all other instruments and agreements
evidencing and/or securing the indebtedness hereunder, which Credit Agreement and other
instruments and agreements are hereby made part of this Note and are deemed incorporated herein in
full. The occurrence or existence of an Event of Default shall constitute a default under this
Note and shall entitle the Payee to accelerate the entire indebtedness hereunder and to take such
other action as may be provided for in the Credit Agreement or any other instrument or agreement
evidencing and/or securing this Note, all in accordance with the terms of the Credit Agreement.
All agreements between or among the Borrowers, the Collateral Agent and any Lender are hereby
expressly limited so that in no contingency or event whatsoever, whether by reason of acceleration
of maturity of the indebtedness or otherwise, shall the amount paid or agreed to be paid for the
use or forbearance of the indebtedness evidenced hereby exceed the maximum amount which the Payee
or any other Lender is permitted to receive under applicable law. If, from any circumstances
whatsoever, fulfillment of any provision hereof or of the Credit Agreement, at the time performance
of such provision shall be due, shall involve exceeding such amount, then the obligation to be
fulfilled shall automatically be reduced to the limit of such validity and if, from any
circumstances, the Payee or any other Lender should ever receive as interest an amount which would
exceed such maximum amount, such amount which would be excessive interest shall be applied to the
reduction of the principal balance evidenced hereby and not to the payment of interest. As used
herein, the term “applicable law” shall mean the law in effect as of the date hereof, provided,
however, that in the event there is a change in the law which results in a higher permissible
rate of interest, then this Note shall be governed by such new law as of its effective date. This
provision shall control every other provision of all agreements between or among the Borrowers, the
Collateral Agent, and each Lender.
This Note and all transactions hereunder and/or evidenced herein shall be governed by, and
construed and enforced in accordance with, the laws of the State of California applicable to
contracts made and performed in said State.
If this Note shall not be paid when due and shall be placed by the holder hereof in the hands
of any attorney for collection, through legal proceedings or otherwise, the Borrowers hereby
jointly and severally agree to pay reasonable attorneys’ fees to the holder hereof together with
reasonable costs and expenses of collection, including, without limitation, any such attorneys’
fees, costs and expenses relating to any proceedings with respect to the bankruptcy,
reorganization, insolvency, readjustment of debt, dissolution or liquidation of any Borrower or
any party (other than the Payee or any other Lender) to any instrument or agreement securing this
Note.
This Note shall become effective upon acceptance of this Note by the Collateral Agent on
behalf of the Payee in Santa Monica, California. Borrowers hereby waive notice of acceptance
hereof by Payee and Collateral Agent.
[Signatures on Next Page]
IN WITNESS WHEREOF, each Borrower has caused this Term Loan C Secured Promissory Note to be
executed under seal by its duly authorized representative as of the date first above written.
| EQUITY BROADCASTING CORPORATION | ||||||
| By: Name: |
/s/ Xxxxx X. Xxxxxxxxxxxx
|
|||||
| Title: | Executive Vice President | |||||
| ARKANSAS 49, INC. XXXXXX BROADCASTING, INC. DENVER BROADCASTING, INC. EBC XXXXXXXX, INC. EBC PANAMA CITY, INC. EBC POCATELLO, INC. EBC SCOTTSBLUFF, INC. EBC ST. LOUIS, INC. FORT XXXXX 46, INC. HISPANIC NEWS NETWORK, INC. LA GRANDE BROADCASTING, INC. XXXXX 12, INC. MARQUETTE BROADCASTING, INC. XXXXXXXXXX 22, INC. NEVADA CHANNEL 3, INC. NEWMONT BROADCASTING CORPORATION PRICE BROADCASTING, INC. PULLMAN BROADCASTING INC. REP PLUS, INC. RIVER CITY BROADCASTING, INC. ROSEBURG BROADCASTING, INC. SHAWNEE BROADCASTING, INC. TV 34, INC. VERNAL BROADCASTING, INC. XXXXXXXX BROADCASTING, INC. WYOMING CHANNEL 2, INC. |
||||||
| By: Name: |
/s/ Xxxxx X. Xxxxxxxxxxxx
|
|||||
| Title: | Vice President of each | |||||
| EBC MINNEAPOLIS, INC. EBC DETROIT, INC. EBC BUFFALO, INC. EBC WATERLOO, INC. EBC ATLANTA, INC. EBC SEATTLE, INC. EBC KANSAS CITY, INC. EBC SYRACUSE, INC. NEVADA CHANNEL 6, INC. EBC PROVO, INC. EBC SOUTHWEST FLORIDA, INC. EBC LOS ANGELES, INC. EBC BOISE, INC. SKYPORT SERVICES, INC. |
||||||
| By: Name: |
Xxxxx X. Xxxxxxxxxxxx
|
|||||
| Title: | Vice President of each | |||||
Schedule 2.01
Allocation of Loans and Commitments
| Percentage | ||||||||||||||||||||||||||||||||
| Revolving | Revolving | Percentage | Percentage | Percentage | ||||||||||||||||||||||||||||
| Credit | Credit | Term Loan A | Term Loan A | Term Loan B | Term Loan B | Term Loan C | Term Loan C | |||||||||||||||||||||||||
| Lender | Commitment | Commitments | Commitment | Commitments | Commitment | Commitments | Commitment | Commitments | ||||||||||||||||||||||||
FIELD POINT
I, LTD. |
$ | 6,011,562.50 | 19.41562 | % | $ | 3,200,000 | 16 | % | $ | 1,318,125 | 13.875 | % | $ | 0 | 0 | % | ||||||||||||||||
FIELD POINT
II, LTD. |
$ | 6,099,375.00 | 19.69924 | % | $ | 4,800,000 | 24 | % | $ | 2,244,375 | 23.625 | % | $ | 0 | 0 | % | ||||||||||||||||
FIELD POINT
III, LTD. |
$ | 0 | 0 | % | $ | 0 | 0 | % | $ | 0 | 0 | % | $ | 2,250,000 | 37.5 | % | ||||||||||||||||
SPF CDO I,
LLC |
$ | 3,370,312.50 | 10.88514 | % | $ | 2,000,000 | 10 | % | $ | 1,187,500 | 12.5 | % | $ | 750,000 | 12.5 | % | ||||||||||||||||
XXXXX FARGO
FOOTHILL,
INC |
$ | 15,481,250.00 | 50 | % | $ | 10,000,000 | 50 | % | $ | 4,750,000 | 50 | % | $ | 3,000,000 | 50.0 | % | ||||||||||||||||
TOTAL |
$ | 30,962,500.00 | 100 | % | $ | 20,000,000 | 100 | % | $ | 9,500,000 | 100 | % | $ | 6,000,000 | 100 | % | ||||||||||||||||
Schedule 2.17
Use
of Proceeds
Revolving Credit Loans:
Borrower may use proceeds of Revolving Credit Loans solely for the purpose of (i) Acquisitions,
(ii) repurchase of Equity Securities from existing Equity Holders, (iii) capital expenditures and
(iv) general corporate purposes.
Term
Loans B:
Borrower may use proceeds of Term Loans B solely for the purpose of acquiring Station KUTH (Channel
32) licensed to Provo, Utah, or such other Station or Stations as may be approved by the Collateral
Agent and Administrative Agent.
Term
Loans C:
Borrower may use proceeds of Term Loans C solely for the purpose of prepaying the Revolving Credit
Loans.
