SECOND AMENDMENT TO THIRD AMENDED AND RESTATED CREDIT AGREEMENT AND FORBEARANCE AGREEMENT
SECOND
AMENDMENT TO THIRD AMENDED AND RESTATED CREDIT
AGREEMENT
AND FORBEARANCE AGREEMENT
THIS
SECOND AMENDMENT TO THIRD AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT AND
FORBEARANCE AGREEMENT (this
"Agreement")
is
made as of the 28th
day of
April, 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, ▇▇▇▇▇▇
BROADCASTING, INC.,
a
Nevada corporation, DENVER
BROADCASTING, INC.,
an
Arkansas corporation, EBC
▇▇▇▇▇▇▇▇, INC.,
an
Arkansas corporation, EBC
PANAMA CITY, INC.,
an
Arkansas corporation, EBC
SCOTTSBLUFF, INC.,
an
Arkansas corporation, FORT
▇▇▇▇▇ 46, INC.,
a
Nevada corporation ("Fort
▇▇▇▇▇ 46"),
EQUITY
NEWS SERVICES, INC. (formerly
known as Hispanic News Network, Inc.), an Arkansas corporation, ▇▇▇▇▇
12, INC.,
an
Arkansas corporation ("▇▇▇▇▇
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, ▇▇▇▇▇▇▇▇
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, 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"),
▇▇▇▇▇ 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");
▇▇▇▇▇
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 amended and
supplemented by a certain First Amendment to Third Amended and Restated
Revolving Credit Agreement and Forbearance Agreement dated as of March 19,
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,
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
any
other Defaults or Events of Default other than any Specified Defaults (as
defined herein) until May 5, 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 Existing Defaults and any other Defaults or Events
of Default other than any Specified 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.
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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 (including, without limitation, certain Additional Term Loans
B
made prior to the date hereof) in the aggregate outstanding principal amount
of
$36,040,981, 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
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ & Dodge LLP, special counsel to Administrative Agent,
and ▇▇▇▇ ▇▇▇▇▇▇▇▇, 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 "Second
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 Existing Defaults have occurred
as of the date hereof and will be continuing, which Existing Defaults constitute
Events of Default. 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.
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(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 (i) the Existing Defaults, (ii) a Default or Event of Default
arising pursuant to Section 2.18
of the
Credit Agreement, or (iii) any other Default or Event of Default (other than
any
of the ones described in Exhibit
D
attached
hereto and made a part hereof (each such excluded Default or Event of Default,
individually, a "Specified
Default,"
and
collectively, the "Specified
Defaults"))
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)
May 5,
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 dated as of March 19, 2008, and a certain Second 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 Additional Term Loans B, or the acceptance of any payments
hereunder or under the Credit Agreement, the Existing Defaults, 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, the Specified 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 Existing Defaults and any other Default
or
Event of Default (other than any Specified 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.
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(ii) Subject
to Section
3(b)
above
(solely with respect to the Existing Defaults and any other Default or Event
of
Default other than any Specified 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 Existing Defaults, or any other
Default or Event of Default (other than any Specified Defaults) 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 Existing 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.
4. Additional Definitions.
The
following new definitions are hereby added to Section
1.01
of the
Credit Agreement:
"Additional
Amount:
from
May 6, 2008 through June 5, 2008, an amount equal to one-half
of one percent (0.5%), such Additional Amount to increase thereafter by an
additional one-half
of one percent (0.5%) on each monthly anniversary of May 6, 2008."
"Second
Amendment:
that
certain Second Amendment to Third Amended and Restated Credit Agreement and
Forbearance Agreement dated as of April 24, 2008, among Borrowers, Lenders
and
Agents."
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, provided,
however,
that
the aggregate principal amount of all Additional Term Loans B (including
Additional Term Loans B made prior to the date hereof pursuant to the First
Amendment) shall 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 (including Additional Term Loans
B
made prior to the date hereof pursuant to the First Amendment) shall not exceed
their respective limits set forth in Exhibit
C
hereto.
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(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 April 14, 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 made in any week shall be equal
to the amount of (a) the cash need shown for such week in the "Net Change"
line
of the cash forecast minus
(b) the
aggregate amount of any cash or cash equivalents of the Borrowers and their
respective Subsidiaries on the immediately preceding Business Day in excess
of
$100,000. 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 ▇▇▇▇▇ ▇▇, ▇▇▇▇, (▇) second,
on the
date hereof, to fund payment of all fees and expenses referred to in the Second
New Fee Letters (as defined in Exhibit
B
hereto),
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
I Amendments.
(a) The
following definitions in Section
1.01
of the
Credit Agreement are hereby amended to read in their entirety as
follows:
"Additional
Term Loans B Amount:
$5,495,541.00"
"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) eleven percent (11.00%)."
(b) This
Agreement, the Second Amendment to Side Letter Agreement and the Second New
Fee
Letter shall be included within the definition of "Loan
Documents"
for the
purposes of the Credit Agreement.
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7.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
twelve
percent (12.00%), or, (2) if such LIBOR Rate is not available or published,
or
at Borrowers' option, the Base Rate."
(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 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 be due and
shall be 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; provided,
however,
Borrowers may, upon notice to the Additional Term Loan B Lenders, defer payment
in cash of that portion of the total interest accruing on the unpaid principal
balance of the Additional Term Loans B, equal to the amount of interest accruing
at the rate of two percent (2.00%) per annum (the portion of the total interest
accrual so deferred being herein called the "Additional
Term Loan B PIK Interest"),
as
follows:
(y) The
Additional Term Loan B PIK Interest on each Monthly Payment Date shall be paid
by adding the amount of such Additional Term Loan B PIK Interest to the
principal balance of the respective Term Loans B on the corresponding Monthly
Payment Date. Once added to the principal balance of such Term Loans B , such
Additional Term Loan B PIK Interest shall thereafter accrue interest in
accordance with the terms of this Agreement applicable to Term Loans
B.
(z) Subject
to Sections
2.05(c)(iv) and 2.05(d),
but
notwithstanding any other provision contained herein to the contrary, the
aggregate accrued and unpaid amount of all Term Loan B PIK Interest shall be
paid by Borrowers on the Maturity Date and on any date which a payment is made
in accordance with Section
2.05."
(c) Section
2.05(d)
of the
Credit Agreement is hereby amended to read in its entirety as
follows:
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"(d) Early
Termination Fees.
In the
event of any prepayment or repayment of a Loan made pursuant to Sections
2.05(b)(ii),
(iii)
or
(iv)
prior to
the date which is thirty-four (34) months after the Closing Date, Borrowers
shall pay to Billing Agent for the ratable benefit of Lender or Lenders entitled
to such Early Termination Fee a fee (the "Early
Termination Fee")
calculated as the lesser of (i) (a) the sum of four and one-half percent (4.50%)
plus
the
Additional Amount times
(b) the
principal amount so paid or prepaid to such Lenders; and (ii) the Make Whole
Amount.
Any
prepayment or repayment made on or after that date which is thirty-four (34)
months after the Closing Date shall be payable at par. In the event the Lenders
waive any mandatory prepayment under Section 2.05(b)
in
connection with any mandatory prepayment event described in Section 2.05(b),
any
voluntary prepayment of such sums by Borrowers (exclusive, however, of voluntary
prepayments of the Revolving Credit Loans and temporary prepayments of the
Revolving Credit Loans pending Borrowers' election to reinvest proceeds as
permitted by this Agreement) shall be subject to the payment of the Early
Termination Fee."
8.Representations
and Warranties of the Borrowers.
Borrowers
hereby represent and warrant to Lender Group that:
(a) 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;
(b) 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
(c) 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.
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10.Cooperation.
The
Lender Group hereby acknowledges that it shall cooperate with Borrowers and
The
Yucaipa Companies LLC and/or its affiliates ("Yucaipa")
and
assist in Yucaipa's efforts to consummate its investment in Borrowers through
convertible debt securities, warrants and/or other securities of Borrowers
solely by executing and delivering, at Borrowers' sole expense, UCC termination
statements, lien releases, mortgage releases, re-assignments of trademarks,
discharges of security interests, and other similar discharge or release
documents as required by Section
9.03
of the
Credit Agreement upon the full and final discharge of all of the Obligations
and
the irrevocable termination of all of the Commitments.
11. 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 ▇▇▇
(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.
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(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.
12. Corrective
Amendment.
All
references in the Loan Documents to "SPF CDO I, LLC, a Delaware limited
liability company" are hereby amended to read and refer to "SPF CDO I, LTD.,
a
Cayman
Islands limited liability company."
13. 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.
14. 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.
15. 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.
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10
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16. 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
17. 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.
18. Captions.
The
captions in this Agreement are for convenience of reference only and shall
not
define or limit the provisions hereof.
19. 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.
20. 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)
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11
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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.
|
|
▇▇▇▇▇▇
BROADCASTING, INC.
|
|
DENVER
BROADCASTING, INC.
|
|
EBC
▇▇▇▇▇▇▇▇, INC.
|
|
EBC
PANAMA CITY, INC.
|
|
EBC
SCOTTSBLUFF, INC.
|
|
EQUITY
NEWS SERVICES, INC., f/k/a Hispanic News Network,
Inc.
|
|
FORT
▇▇▇▇▇ 46, INC.
|
|
▇▇▇▇▇
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.
|
|
▇▇▇▇▇▇▇▇
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:
|
▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇▇▇▇▇
|
|
|
Title:
|
Vice
President of each
|
|
[Second
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
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
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|
▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
|
|
Attention:
▇▇▇▇▇ ▇▇▇▇▇▇▇▇
|
|
Telecopy
No.: (▇▇▇) ▇▇▇-▇▇▇▇
|
[Second
Amendment to Third Amended and Restated
Credit
Agreement and Forbearance Agreement]
|
COLLATERAL
AGENT AND BILLING AGENT:
|
||
|
▇▇▇▇▇
FARGO FOOTHILL, INC.,
|
||
|
as
Collateral Agent and Billing Agent
|
||
|
By:
|
||
|
▇▇▇▇
▇▇▇▇, Vice President
|
||
|
▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇
|
|
▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
|
|
Telecopy
No.: (▇▇▇) ▇▇▇-▇▇▇▇
|
[Second
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
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
|
||
|
▇▇▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
|
||
|
Attention:
▇▇▇▇▇ ▇▇▇▇▇▇▇▇
|
||
|
Telecopy
No.: (▇▇▇) ▇▇▇-▇▇▇▇
|
||
[Second
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
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
|
||
|
▇▇▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
|
||
|
Attention:
▇▇▇▇▇ ▇▇▇▇▇▇▇▇
|
||
|
Telecopy
No.: (▇▇▇) ▇▇▇-▇▇▇▇
|
||
[Second
Amendment to Third Amended and Restated
Credit
Agreement and Forbearance Agreement]
|
LENDER:
|
||
|
FIELD
POINT III, LTD.
|
||
|
By:
|
||
|
Name:
|
||
|
Title:
|
||
|
Address
for Notices to FIELD POINT III, LTD:
|
||
|
Two
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
|
||
|
▇▇▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
|
||
|
Attention:
▇▇▇▇▇ ▇▇▇▇▇▇▇▇
|
||
|
Telecopy
No.: (▇▇▇) ▇▇▇-▇▇▇▇
|
||
[Second
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, LTD:
|
||
|
Two
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
|
||
|
▇▇▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
|
||
|
Attention:
▇▇▇▇▇ ▇▇▇▇▇▇▇▇
|
||
|
Telecopy
No.: (▇▇▇) ▇▇▇-▇▇▇▇
|
||
[Second
Amendment to Third Amended and Restated
Credit
Agreement and Forbearance Agreement]
|
LENDER:
|
||
|
▇▇▇▇▇
FARGO FOOTHILL, INC.
|
||
|
By:
|
||
|
▇▇▇▇
▇▇▇▇, Vice President
|
||
|
Address
for Notice to ▇▇▇▇▇ Fargo Foothill, Inc.
|
||
|
▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇
|
||
|
▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
|
||
|
Attention:
Group Credit Manager – Specialty Finance Group
|
||
|
Telecopy
No.: (▇▇▇) ▇▇▇-▇▇▇▇
|
||
[Second Amendment to Third Amended and Restated
Credit
Agreement and Forbearance Agreement]
EXHIBIT
A
EXISTING
EVENTS OF 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, 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 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.
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 the New Equity Investors consistent with the timeline and requirements
set
forth in the Side Letter Agreement.
EXHIBIT
B
CONDITIONS
TO CLOSING SECOND AMENDMENT
|
1.
|
Fee
Letter between Borrowers and Administrative Agent and Fee Letter
between
Borrowers and Collateral Agent (collectively, the "Second New Fee
Letters")
|
|
2.
|
Secured
Promissory Notes evidencing Additional Term Loans
B
|
|
3.
|
Certificate
of Chief Financial Officer or Chief Executive Officer certifying
as to the
absence of any Specified Defaults as of the date
hereof
|
|
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 (INCLUDING ADDITIONAL TERM LOANS B FUNDED PURSUANT
TO
FIRST AMENDMENT)
|
Maximum
Amount of Additional Term Loans B
|
||||
|
SPCP
GROUP, LLC
|
$
|
2,432,784.80
|
||
|
SPF
CDO I, LLC
|
$
|
1,099,108.20
|
||
|
FIELD
POINT III, LTD.
|
$
|
1,963,648.00
|
||
EXHIBIT
D
SPECIFIED
DEFAULTS
1. A
Default
by Borrowers by reason of a breach of any of the following provisions of the
Credit Agreement:
|
a)
|
Section
6.01, 6.09, 7.01 (solely as a result of Excluded Incurrences (as
defined
below)) or 7.09, but only if any such Default when aggregated with
all
other Defaults under Sections 6.01, 6.09, 7.01 (solely as a result
of
Excluded Incurrences), 7.05, 7.09 and 7.13 and all Events of Default
under
paragraphs (a), (g), (o), (p), (q) and (r) of Article VIII adversely
affects or adversely relates to Collateral with a value equal to
or
exceeding $3,750,000 in the aggregate (all such Defaults and Events
of
Defaults, collectively, the "Listed
Defaults");
|
|
b)
|
Sections
6.02 (a) and (g), only in the event that the insurance coverage maintained
by the Borrowers is less than the level of insurance in effect and
maintained by the Borrowers as of the date of this Second
Amendment;
|
|
c)
|
Section
6.12;
|
|
d)
|
Section
7.01, but only if such Indebtedness is in excess of $250,000 in the
aggregate (other than any incurrence of Indebtedness which would
be
permitted pursuant to Section 7.01(g) except that the amount thereof
exceeds the dollar limit contained in Section 7.01(g)) (any such
incurrence, an "Excluded Incurrence", and all such incurrences, the
"Excluded
Incurrences");
|
|
e)
|
Section
7.02, but only if the Lien or Liens incurred or arising in violation
of
Section 7.02 (i) are not junior to all Liens granted in favor of
Collateral Agent for the benefit of the Agents and the Lenders (except
for
Liens which arise by operation of law and have priority over the
time of
recordation), or (ii) are the subject of any exercise of remedies
by any
creditor holding such Lien to obtain title to the property subject
to such
Lien (any such property, a "Subject
Property");
|
|
f)
|
Section
7.03, 7.05 or 7.06, but only if any such Default when aggregated
with any
other Defaults under Sections 7.03, 7.05 and 7.06 relates to assets
or
investments with an aggregate fair market value in excess of $250,000
over
the term of the Forbearance Period;
|
|
g)
|
Section
7.08, but only in the event that the Accounts Receivable is sold
by the
Borrowers at a discount or Agents fail to receive the proceeds from
such
sale;
|
|
h)
|
Section
7.13, but only if the agreement entered into by a Borrower prohibits
(i)
such Borrower from amending or otherwise modifying the Loan Agreement
or
any other Loan Document, or (ii) the creation or assumption of any
Lien in
favor of the Collateral Agent for the benefit of the Agents and Lenders
upon the properties, revenues or assets of, or the extension of any
guaranty by, a Borrower, whether now owned or hereafter acquired,
such
that the prohibition or creation of such Lien when aggregated with
all the
Listed Defaults adversely affects or adversely relates to Collateral
with
a value equal to or exceeding $3,750,000 in the aggregate;
and
|
|
i)
|
Section
7.15, but only if such Default relates to assets with an aggregate
fair
market value in accounts of $100,000 in any single transaction over
the
term of the Forbearance Period.
|
2.
The
occurrence of an Event of Default under any of the following paragraphs of
Article VIII:
|
a)
|
Paragraph
(a), (g), (o), (p), (q), and (r), but only if such Event of Default
when
aggregated with all the Listed Defaults adversely affects or adversely
relates to Collateral with a value equal to or exceeding $3,750,000
in the
aggregate;
|
|
b)
|
Paragraphs
(b), (c), (i), (j), (m) and (u);
and
|
|
c)
|
Paragraphs
(d) and (e), but only to the extent that such Event of Default occurs
by
reason of: (1) a Borrower's failure to observe, perform or comply
with a
covenant, condition or agreement contained in the Side Letter Agreement,
or (2) the occurrence of a Default or Event of Default which constitutes
a
Termination Event by reason of the provisions or paragraphs set forth
and
in accordance with the terms of this Exhibit
D.
|
provided,
however,
that
the forbearance of any Default under the terms of this Exhibit
D
shall
not prevent Administrative Agent, Collateral Agent and Lenders from exercising
any of their rights with respect to any Subject Property in the event any
judgment creditor commences proceedings to exercise any such remedies on such
Subject Property against any Borrower.
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7
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