FIRST AMENDMENT TO THIRD AMENDED AND RESTATED CREDIT AGREEMENT AND FORBEARANCE AGREEMENT
FIRST
AMENDMENT TO THIRD AMENDED AND RESTATED CREDIT
AGREEMENT
AND FORBEARANCE AGREEMENT
THIS
FIRST AMENDMENT TO THIRD AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT AND
FORBEARANCE AGREEMENT (this
"Agreement")
is
made as of the 19th
day of
March, 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, and EBC
JACKSONVILLE, INC., an
Arkansas corporation (together, the "Borrowers"
and
individually, a "Borrower").
SPCP
GROUP, LLC,
a
Delaware limited liability company ("SPCP"),
SPF CDO I, LLC,
a
Delaware 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 are now, or in accordance with
Article
XII
hereafter become, parties hereto and "Lenders" hereunder (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").
WITNESSETH
THAT
WHEREAS,
Borrowers are indebted to the Lenders pursuant to a certain Third Amended and
Restated Credit Agreement dated as of February 13, 2008 (as
the
same may be amended, restated, supplemented and otherwise modified from time
to
time,
the
"Credit
Agreement");
and
WHEREAS,
Borrowers are in default under the Credit Agreement as described in Exhibit
A
attached
hereto and made a part hereof (the "Designated
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 Designated Defaults
until
April 18, 2008; and
WHEREAS,
Borrowers have requested that certain Term Loan B 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 Designated Defaults 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
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. Forbearance.
(a) Acknowledgment
of Indebtedness.
Borrowers hereby acknowledge, confirm and agree that as of the date hereof
and
prior to taking into account any Additional Term Loans B (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 in the aggregate outstanding principal amount of $33,000,000.00,
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, 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 permitted encumbrances, if any.
(c) Acknowledgement
Concerning Loans.
Borrowers
hereby acknowledge, confirm and agree that no Borrower is entitled to request
any further Loans, advances or financial accommodations under the Credit
Agreement, and that Lender Group is under no obligation to make any further
Loans, advances or financial accommodations to any Borrower. Notwithstanding
the
foregoing, on the date of closing of this Agreement (the "First
Amendment Closing Date"),
the
Term Loan B Lenders identified on Exhibit
C
attached
hereto (collectively, the "Additional
Term Loan B Lenders"),
provided no Termination Event (as hereinafter defined) has occurred, shall
make
Additional Term Loans B to Borrowers upon request by Borrowers in accordance
with and subject to the Credit Agreement, as amended hereby. Such Additional
Term Loans B shall be deemed to be Term Loans B 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 under related
Security Documents, as amended.
3. Forbearance
in Respect of Events of Default.
(a) Acknowledgement
of Defaults.
Borrowers hereby acknowledge and agree that the Designated Defaults have
occurred as of the date hereof and will be continuing, which Designated 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 the 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 the Designated Defaults or of a Default or Event of Default
arising pursuant to Section 2.18
of the
Credit Agreement, subject to the conditions contained herein for the period
(the
"Forbearance
Period")
commencing on the date hereof and ending on the earliest to occur of:
(i)
April
18, 2008, or (ii) the occurrence of a Termination Event (as hereinafter
defined).
(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.
(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 of even date herewith by and among Borrowers, Agents and Lenders
(as
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 Additional Term Loans B, or the acceptance of any payments
hereunder or under the Credit Agreement, the Designated Defaults or any Default,
Event of Default or Termination Event which has occurred or may hereafter occur
(whether the same or similar to the Designated Defaults 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, during the
Forbearance Period, the Designated Defaults 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 Designated Defaults), 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 Designated Defaults or
any
Default or Event of Default which has occurred or may hereafter
occur.
(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 of Borrowers acknowledges that Lender Group or any Agent has made
no commitment as to: (i) future funding of the Revolving Credit Loan or
Additional Term Loans B, and (ii) how or whether the Designated
Defaults 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 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.
4. Additional Definitions.
(a) The
following new definitions are hereby added to Section
1.01
of the
Credit Agreement in the correct alphabetical order:
"Additional
Term Loans B:
the
meaning given to such term in the First Amendment."
"Additional
Term Loans B Amount:
$3,040,981.00."
"First
Amendment:
that
certain First Amendment to Third Amended and Restated Credit Agreement and
Forbearance Agreement dated as of March 17, 2008, among Borrowers, Lenders
and
Agents."
(b) The
definition of "Term
Loans B"
is
hereby amended to read in its entirety as follows:
"Term
Loans B:
(a)
Loans made by Term Loan Lenders to Borrowers pursuant to Section
2.01(c)(i),
and (b)
Additional Term Loans B."
(c) This
Agreement, the Side Letter Agreement and the New Fee Letter shall be included
within the definition of "Loan
Documents"
for the
purposes of the Credit Agreement.
5. Additional
Term Loans B. (i)
Subject to the terms and conditions contained in the Credit Agreement, as
amended by this Agreement, the Additional Term Loan B Lenders agree severally
to
make one or more loans pursuant to this Section
5
(collectively, the "Additional
Term Loans B")
to
Borrowers during the Forbearance Period in an aggregate principal amount which
does not exceed the Additional Term Loans B Amount. The Additional Term Loans
B
shall constitute Term Loans B for all purposes of the Credit Agreement, as
amended hereby. The Additional Term Loan B Lenders' respective agreements to
make Additional Term Loans B shall not exceed their respective limits set forth
in Exhibit
C
hereto.
(ii) Borrowers
may request Additional Term Loans B during the Forbearance Period within the
limits of the Additional Term Loans B Amount; provided,
however,
that
Borrowers shall not have the right to re-borrow principal amounts repaid or
prepaid in respect to the Additional Term Loans B. All Additional Term Loans
B
used for the purposes described in clause (C) below shall be made by the
Additional Term Loans B Lenders on the second (2nd)
Business Day of each week provided Borrowers maintain a minimum cumulative
net
cash flow equal to the sum of the "Net Change" for each week (with such
calculation beginning with the week of March 10, 2008) provided by
Borrowers to Administrative Agent on the first (1st)
Business Day of such week pursuant to Section IV of the Side Letter Agreement.
The amount of the Additional Term Loans B shall be equal to the cash need
shown for such week in the "Net Change" line of the cash forecast. The proceeds
of Additional Term Loan B shall be used solely (A) first,
on the
date hereof, to fund accrued and unpaid interest on the Loans that was due
and
payable on Xxxxx 00, 0000, (X) second,
on the
date hereof, to fund payment of all fees and expenses referred to in the New
Fee
Letter, and all fees and expenses of the Agents in closing the transactions
contemplated by this Agreement, and (C) on and after the date hereof and in
compliance with the terms of this Agreement, the Credit Agreement and the Side
Letter Agreement, the balance for Borrowers' customary working capital
requirements.
(iii) Borrowers'
right to request or receive Additional Term Loans B shall terminate upon
termination or expiration of the Forbearance Period.
6. Article
II Amendments.
(a) The
following definition in Section
1.01
of the
Credit Agreement is hereby amended to read in its entirety as
follows:
"Base
Rate:
the
per
annum interest rate calculated from time to time as being (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%).
(b) Section
2.01(e)
of the
Credit Agreement is hereby amended to read in its entirety as
follows:
"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 waived 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."
(c) 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. Notwithstanding anything herein to the
contrary, if Borrowers indefeasibly pay all Obligations in full on or prior
to
March 28, 2008, Lenders shall credit to Borrowers from the Early Termination
Fee
an amount equal to the difference between the amount of interest actually paid
or owing pursuant to the terms hereof and the amount of interest that would
have
been due or paid if the interest rate on the Closing Date had been the Reduced
Interest Rate."
(d) Section
2.18
of the
Credit Agreement is hereby amended to read in its entirety as
follows:
"Section
2.18.
Adjustments
to Schedule 1.01.
Adjustments to the attached Schedule
1.01
may be
made from time to time as follows:
"(a) The
respective Sale Amount of each Station listed on the attached Schedule
1.01
may be
adjusted from time to time (as so adjusted, an "Adjusted
Sale Amount")
either
(x) with the consent of the Required Lenders, following written request by
the
Borrowers, or (y) upon the written request of the Administrative Agent in the
exercise of its discretion or at the written direction of the Required Lenders,
and in each case upon completion of an updated appraisal of the Collateral
that
is satisfactory to the Administrative Agent, provided,
however,
that,
unless a Default or an Event of Default has occurred and is continuing, no
request for an adjustment shall be submitted by the Administrative Agent with
respect to any Station(s) after the earlier to occur of (i) five (5)
Business Days after the execution and delivery to Administrative Agent of a
bona
fide letter of intent or similar document with respect to the Disposition of
such Stations; or (ii) the execution by Borrower and an unrelated third
party of a bona fide definitive purchase and sale agreement or similar document
(which is reasonably acceptable to Administrative Agent in the event that the
Disposition is not a Pre-Approved Station Disposition) and delivery thereof
to
Administrative Agent with respect to such Stations, unless such purchase and
sale agreement contemplates the sale of such Station(s) at an amount lower
than
the current Sale Amount(s), in which case the Administrative Agent may
re-appraise such Station(s) down to the proposed sale price. Each appraisal
shall be performed by a duly licensed appraiser or appraisal firm reasonably
acceptable to the Administrative Agent and at Borrowers' sole cost and expense;
provided,
however,
that
except as provided in Section
2.06(b)(ii)
and
(iii),
and
except as provided in Section
2.18(b), unless an
Event
of Default shall have occurred and be continuing, Borrowers shall not be
required to pay fees and expenses incurred in the performance for more than
three (3) appraisals of the entire collateral pool during any calendar
year.
(b) Borrowers
may add Stations to Schedule
1.01
with the
approval of the Required Lenders, and the respective Sale Amount of each Station
(each, an "Additional
Sale Amount")
shall
be determined by an appraisal satisfactory to the Administrative Agent,
performed by a duly licensed appraiser or appraisal firm reasonably acceptable
to the Administrative Agent and paid for by the Borrowers.
(c) Any
appraisal delivered as part of the written request of Administrative Agent
pursuant to clause (a)(y) above of this Section
2.18
to the
Borrowers, and any resulting Adjusted Sale Amount, Additional Sale Amount or
resulting adjustment to Schedule
1.01
hereof
shall become effective for the purposes of this Agreement two (2) Business
Days
after delivery of such appraisal to the Borrowers."
7.
Additional
Affirmative Covenants.
A
new
Section
6.13
is
hereby added to the Credit Agreement which shall read in its entirety as
follows:
"Section
6.13.
Sell
Side Advisor.
At all
times after March 14, 2008, retain a financial advisor (which is not an
Affiliate of a Borrower or any member of Lender Group) reasonably satisfactory
to Administrative Agent (the "Sell Side Advisor") at Borrowers' sole cost and
expense, on terms and conditions reasonably acceptable to Administrative Agent,
which Sell Side Advisor shall at all times conduct a process by which all
Stations and related assets and Licenses are offered for sale and shall manage
all aspects of such sales processes, including the negotiation of sale
documentation. Borrowers have engaged Xxxxxxx Communications as the Sell Sale
Advisor."
8. Representations
and Warranties of the Borrowers.
Borrowers
hereby represent and warrant to Lender Group that, except for the existence
of
the Designated Defaults:
(a) Each
representation and warranty set forth in Section
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, 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 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 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.
9. Conditions
to Agreement.
As
a
condition precedent to the effectiveness of this Agreement,
Borrowers shall have delivered to Lender the agreements
and documents described in Exhibit
B
attached
hereto and made a part hereof, each
in
form
and substance acceptable to Agents.
10. 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 and each Lender
and their respective successors and assigns, and its affiliates, subsidiaries,
predecessors, directors, officers, 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 10(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.
11. 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.
12. 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.
13. 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.
14. 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
15. 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.
16. Captions.
The
captions in this Agreement are for convenience of reference only and shall
not
define or limit the provisions hereof.
17. 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 counsel and the Collateral Agent's special counsel.
18. 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)
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.
|
|
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.
|
|
By:
|
|
|
Name:
Xxxxx X. Xxxxxxxxxxxx
|
|
|
Title:
Vice President of each
|
|
[First
Amendment to Third Amended and Restated
Credit
Agreement and Forbearance Agreement]
|
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
|
|
[First
Amendment to Third Amended and Restated
Credit
Agreement and Forbearance Agreement]
|
COLLATERAL
AGENT AND BILLING
AGENT:
|
|
|
XXXXX
FARGO FOOTHILL, INC.,
|
|
|
as
Collateral Agent and Billing Agent
|
|
|
By:
|
|
|
Xxxx
Xxxx, Vice President
|
|
|
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
|
|
[First
Amendment to Third Amended and Restated
Credit
Agreement and Forbearance Agreement]
|
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
|
|
[First
Amendment to Third Amended and Restated
Credit
Agreement and Forbearance Agreement]
|
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
|
|
[First
Amendment to Third Amended and Restated
Credit
Agreement and Forbearance Agreement]
|
LENDER:
|
|
|
FIELD
POINT III, LLC
|
|
|
By:
|
|
|
Name:
|
|
|
Title:
|
|
|
Address
for Notices to FIELD POINT III, LLC:
|
|
|
Two
Xxxxxxxxx Xxxxx
|
|
|
Xxxxxxxxx,
XX 00000
|
|
|
Attention:
Xxxxx Xxxxxxxx
|
|
|
Telecopy
No.: (000) 000-0000
|
|
[First
Amendment to Third Amended and Restated
Credit
Agreement and Forbearance Agreement]
|
LENDER:
|
|
|
FIELD
POINT IV, LLC
|
|
|
By:
|
|
|
Name:
|
|
|
Title:
|
|
|
Address
for Notices to FIELD POINT IV, LLC:
|
|
|
Two
Xxxxxxxxx Xxxxx
|
|
|
Xxxxxxxxx,
XX 00000
|
|
|
Attention:
Xxxxx Xxxxxxxx
|
|
|
Telecopy
No.: (000) 000-0000
|
|
[First
Amendment to Third Amended and Restated
Credit
Agreement and Forbearance Agreement]
|
LENDER:
|
|
|
XXXXX
FARGO FOOTHILL, INC.
|
|
|
By:
|
|
|
|
Xxxx
Xxxx, Vice President
|
|
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
|
|
[First
Amendment to Third Amended and Restated
Credit
Agreement and Forbearance Agreement]
EXHIBIT
A
DESIGNATED
DEFAULTS
1. Borrowers'
Default in paying interest under the Credit Agreement when due and payable
on
March 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.
c. Section
4.11 (b): To the extent that the Borrowers have need for additional funding
as
evidenced by the Additional Term Loans B.
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 and March 2008.
Borrowers agree that they shall provide Agents on or before March 24, 2008,
with
financial information for January 2008, in accordance with the requirements
of
Section 6.05(c) of the Credit Agreement.
5. Default
under Section 6.05 (e) for Borrowers' failure to deliver Budget required thereby
.
6. Defaults
under Sections Section 7.04(a)(iv) and 7.13(a) which may occur during the
Forbearance period to the extent caused by Borrowers' entering into agreements
with new equity investors consistent with the timeline and requirements set
forth in the Side Letter Agreement.
EXHIBIT
B
CONDITIONS
TO CLOSING FIRST AMENDMENT
|
1.
|
Fee
Letter between Borrowers and Administrative Agent (the "New Fee Letter")
and Fee Letter between Borrowers and Collateral
Agent
|
|
2.
|
Secured
Promissory Notes evidencing Additional Term Loans
B
|
|
3.
|
Certificate
of Chief Financial Officer or Chief Executive Officer of Absence
of Events
of Default
|
|
4.
|
Certificate
of Secretary of Borrowers certifying as to authority and incumbency
of
officer executing agreements
|
| 5. |
Payment
of closing/amendment fees to each of the
Agents.
|
EXHIBIT
C
ALLOCATION
OF ADDITIONAL TERM LOANS B
|
Maximum
Amount of
Additional
Term Loans B
|
||||
|
SPCP
GROUP, LLC
|
$
|
2,432,784.80
|
||
|
SPF
CDO I, LLC
|
$
|
608,196.20
|
||
