Exhibit 10.38
FIFTH AMENDMENT TO LOAN AGREEMENT AND AMENDMENT TO NOTES
THIS FIFTH AMENDMENT TO LOAN AGREEMENT AND AMENDMENT TO NOTES
(herein called the "Amendment") is dated as of January 31, 2001, by and among
Hispanic Television Network, Inc., a Delaware corporation ("Borrower") and
Xxxx Xxxxx Strategic Partners, L.P. and GAINSCO, Inc. (collectively,
"Majority Lenders"), representing all Lenders, as defined in the Original
Loan Agreement defined below.
WITNESSETH:
WHEREAS, Borrower, Majority Lenders and the other Lenders set forth
therein entered into that certain Loan Agreement dated as of July 25, 2000
(as amended, supplemented or modified to the date hereof, the "Original Loan
Agreement"), for the purpose and consideration therein expressed, whereby
Lenders became obligated to make loans to Borrower as therein provided and
pursuant to which Borrower issued certain notes to the Lenders in the amounts
as set forth in the Lenders Schedule (collectively, the "Original Notes");
WHEREAS, the Lenders have issued certain proxies or have executed
that certain Letter Agreement dated as of January 24, 2001, authorizing
Majority Lenders to amend the Original Loan Agreement, the Original Notes and
all other Loan Documents on behalf of all Lenders for the purpose set forth
herein;
WHEREAS, Borrower and Majority Lenders desire to amend the Original
Loan Agreement and the Original Notes for the purpose set forth herein;
NOW, THEREFORE, in consideration of the premises and the mutual
covenants and agreements contained herein and in the Original Loan Agreement,
and for other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereto do hereby agree as follows:
ARTICLE I.
DEFINITIONS AND REFERENCES
Section 1.1. TERMS DEFINED IN THE ORIGINAL LOAN AGREEMENT. Unless
the context otherwise requires or unless otherwise expressly defined herein,
the terms defined in the Original Loan Agreement shall have the same meanings
whenever used in this Amendment.
Section 1.2. OTHER DEFINED TERMS. Unless the context otherwise
requires, the following terms when used in this Amendment shall have the
meanings assigned to them in this Section 1.2.
"AMENDMENT" means this Fifth Amendment to Loan Agreement and
Amendment to notes.
"LOAN AGREEMENT" means the Original Loan Agreement as amended hereby.
"NOTES" means the Original Notes as amended hereby.
ARTICLE II.
AMENDMENTS TO ORIGINAL LOAN AGREEMENT
Section 2.1. MANDATORY PREPAYMENTS. Section 2.5(b) of the Original
Loan Agreement is hereby deleted in its entirety and the following Sections
2.5(b) through 2.5(e) are hereby added to read as follows:
"(b) The Company shall prepay to the Lenders (pro rata in
accordance with Section 2.4) twenty-five percent (25%) of the sum of (i) all
equity (net of actual expenses incurred with respect thereof) raised by the
Company (excluding any equity payments received by the Company from Gorriti
on the terms proposed in that certain Letter of Intent dated as of January
17, 2001, by and between the Company and CN) on or after January 31, 2001,
and (ii) all amounts received by the Company pursuant to any financing from
third parties after January 31, 2001, which is otherwise permitted herein, to
be applied first to accrued and unpaid interest on the unpaid principal
balance of the Loan, and the remainder, if any, to any unpaid principal
balance. Each prepayment pursuant to this subsection shall be due and payable
immediately upon the Company's receipt of the equity or financing proceeds
described herein.
(c) The Company shall prepay to the Lenders (pro rata in
accordance with Section 2.4) fifty percent (50%) of all gross monthly cash
revenues generated by the Company in excess of $500,000 per month, to be
applied first to accrued and unpaid interest on the unpaid principal balance
of the Loan, and the remainder, if any, to any unpaid principal balance. Each
prepayment shall be due and payable on the fifth day of each calendar month
for the immediately preceding calendar month and shall be accompanied by a
certificate of the Chief Financial Officer of the Company showing the
calculation of such gross monthly cash revenues.
(d) On or before July 31, 2001, the Company shall prepay to the
Lenders (pro rata in accordance with Section 2.4) an amount equal to an
aggregate of $1,500,000 (taking into consideration any prepayments made
pursuant to the immediately preceding clauses (b) and (c) above), to be
applied first to accrued and unpaid interest on the unpaid principal balance
of the Loan, and the remainder, if any, to any unpaid principal balance.
(e) Any principal or interest prepaid pursuant to this Section
2.5 shall be in addition to, and not in lieu of, all payments otherwise
required to be paid under the Loan Documents."
Section 2.2. INDEBTEDNESS. Section 5.19 of the Original Loan
Agreement is hereby deleted in its entirety and replaced with the following:
"5.19. INDEBTEDNESS. No Restricted Person will in any manner owe
or be liable for Indebtedness except Permitted Indebtedness; provided that
the aggregate outstanding principal amount of Permitted Indebtedness
(excluding any purchase money Indebtedness permitted by clause (e) of the
definition of Permitted Indebtedness and excluding (i) Indebtedness owed by
CN which is permitted by clause (f) of the definition of Permitted
Indebtedness and (ii) Indebtedness owed by the Company which is permitted by
clause (g) of the definition of Permitted Indebtedness) at any time shall not
exceed $11,300,000 (the amount of such Permitted Indebtedness which is
allowed hereunder and which exists, from -time to time, being herein referred
to as "Total Allowed Debt") and provided that the Total Allowed Debt shall be
decreased by any amounts which are used to repay Permitted Indebtedness upon
any such repayment."
Section 2.3. INVESTMENTS. Section 5.24 of the Original Loan
Agreement is hereby deleted in its entirety and replaced with the following:
"5.24. LIMITATION ON INVESTMENTS AND NEW BUSINESSES. The Company
will not (a) make any expenditure or commitment or incur any obligation or
enter into or engage in any transaction except in the ordinary course of
business to a Person which is not CN or any of CN's Affiliates or
Subsidiaries, (b) engage directly or indirectly in any business or conduct
any operations except in connection with or incidental to its present
businesses and operations, or (c) make any acquisitions of or capital
contributions to or other Investments in any Person (including, without
limitation, CN and CN's Affiliates and/or Subsidiaries) or property, other
than Permitted Investments. Notwithstanding anything else in this Section
5.24, the Company may pursue alliance relationships with third parties and
acquire television stations."
Section 2.4. DEFAULT. Section 6.1 of the Original Loan Agreement is
hereby deleted in its entirety and replaced with the following:
"6.1. EVENTS OF DEFAULT. Any one or more of the following shall
constitute an "Event of Default" as the term is used herein:
(a) The Company fails to pay any Obligation when due and
payable, whether at a date for the payment of a fixed installment or as a
contingent or other payment becomes due and payable or as a result of
acceleration or otherwise, within five days after the same becomes due; or
(b) The Company fails to satisfy any clause in the definition
of "Maturity Date"; or
(c) Default shall occur in the observance or performance of any
covenant or agreement contained herein (other than a Default described in (a)
or (b) above) or in the other Loan Documents which is not remedied within 10
days after notice thereof to the Company by Majority Lenders; or
(d) If any representation or warranty made by the Company
herein or in any Loan Document, or made by the Company in any statement or
certificate furnished by the Company pursuant hereto, is untrue or incorrect
in any material respect as of the date of the making thereof or subsequently
becomes untrue or incorrect and such inaccuracy is not immediately disclosed
to each Lender; or
(e) Any Restricted Person fails to duly observe, perform or
comply with any agreement with any Person or any term or condition of any
instrument, if such agreement or instrument is materially significant to such
Restricted Person, and such failure is not remedied within the applicable
period of grace (if any) provided in such agreement or instrument; or
(f) Any Restricted Person fails to pay any portion, when such
portion is due, of any of its Indebtedness in excess of $100,000, or breaches
or defaults in the performance of any agreement or instrument by which any
such Indebtedness is issued, evidences, governed, or secured, and any such
failure, breach or default continues beyond any applicable period of grace
provided therefor; or
(g) Any Restricted Person becomes insolvent or bankrupt, is
generally not paying its debts as they become due or makes an assignment for
the benefit of creditors, or any Restricted Person causes or suffers an order
for relief to be entered with respect to it under applicable Federal
bankruptcy law or applies for or consents to the appointment of a custodian,
trustee, liquidator, or receiver for such Restricted Person or for the major
part of the property of either; or
(h) A custodian, trustee, liquidator, or receiver is appointed
for any Restricted Person or for the major part of the property of either and
is not discharged within 30 days after such appointment; or
(i) Final judgment or final judgments for the payment of money
aggregating in excess of $100,000 (except for payments of amounts which are
covered by insurance) is or are outstanding against any Restricted Person or
against any property or assets of either and any one of such judgments has
remained unpaid, unvacated, unbonded or unstayed by appeal or otherwise for a
period of 60 days from the date of its entry; or
(j) Bankruptcy, reorganization, arrangement or insolvency
proceedings, or other proceedings for relief under any bankruptcy or similar
law or laws for the relief of debtors, are instituted by or against any
Restricted Person and, if instituted against such Restricted Person, are
consented to or are not dismissed within 60 days after such institution; or
(k) Any Change of Control occurs; or
(l) Any Material Adverse Change occurs, and Majority Lenders
give written notice thereof to the Company."
Section 2.5. DEFINITIONS. The following definitions of "Default
Rate" and "Permitted Indebtedness" in Article 7 of the Original Loan
Agreement are hereby deleted in their entirety and replaced with the
following:
"'Default Rate" shall mean 14% per annum calculated on the basis of
a 365 day year."
"Permitted Indebtedness" means the following:
(a) the Obligations.
(b) unsecured Indebtedness between the Company and its
Subsidiaries arising in the ordinary course of business; provided that
Indebtedness between the Company and CN and/or CN's Subsidiaries or
Affiliates shall not be included in this clause (b) as Permitted Indebtedness.
(c) Indebtedness owed by the Company or its Subsidiaries which
is subordinated to the Obligations upon terms and conditions satisfactory to
Majority Lenders.
(d) outstanding Indebtedness of the Company and of any of the
Company's Subsidiaries on the Closing Date, but excluding any renewals or
extensions of such Liabilities.
(e) purchase money Indebtedness, provided that the original
principal amount of any such Indebtedness shall not be in excess of the
purchase price of the asset (including but not limited to equipment and
assets comprising television stations) acquired thereby and such Indebtedness
shall be secured only by the acquired asset.
(f) Indebtedness owed by CN (1) which is outstanding at the
time of the CN Acquisition, (2) which does not exceed the amount of
$5,250,000, and (3) the terms of which are acceptable to Majority Lenders, in
their sole discretion.
(g) Indebtedness owed by the Company in the form of a secondary
bridge loan which is closed no later than February 15, 2001, in an amount not
to exceed $1,500,000."
Section 2.6. ADDITIONAL DEFINITIONS. The following definitions are
hereby added to Article VII of the Original Loan Agreement in alphabetical
order to read as follows:
"< CN" shall mean C-Networks LLC, a Delaware limited liability
company."
"< CN Acquisition" shall mean the Company's acquisition of one-hundred
percent (100%) of the membership interests of CN, resulting in CN becoming a
direct subsidiary of the Company."
"< Extension Conditions"shall mean all of the following:
(a) Majority Lenders shall have received the following
documents, at their office in Fort Worth, Texas, duly executed and delivered
and in form, substance and date satisfactory to Majority Lenders:
(i) a security agreement of CN, granting to the
Lenders a security interest in all of CN's real and personal property;
(ii) a guaranty of CN, pursuant to which CN guaranties
the payment and performance of the Indebtedness of the Company hereunder and
under the other Loan Documents;
(iii) a pledge agreement of the Company, pledging to the
Lenders all of its membership interests in CN; and
(b) the Company shall have delivered to the agent under the
pledge agreement referred to in section (a)(iii) of this definition all
certificates representing any membership interests of CN, together with
appropriate undated transfer documents in favor of the agent under such
pledge agreement."
"< Gorriti' shall mean Xxxxxx Xxxxxxx."
"< Initial $500,000 Payment" shall mean the equity payment made by
Gorriti to the Company on or before February 28, 2001, in an amount which is
greater than or equal to $500,000, which payment shall be in addition to the
Initial Gorriti Payment."
"< Initial Gorriti Payment" shall mean the equity payment made by
Gorriti to the Company on or before February 7, 2001, in an amount which is
greater than or equal to $1,500,000."
"< Maturity Date" shall mean the following:
(a) February 7, 2001, if none of the following clauses (b) through
(d) are satisfied to Lenders' satisfaction;
(b) March 31, 2001, if the Company has received the Initial
Gorriti Payment on or before February 7, 2001, and has provided evidence of such
payment to Lenders in form satisfactory to Lenders;
(c) April 30, 2001, if:
(i) the Company satisfied section (b) of this definition, and
(ii) on or before February 28, 2001, (1) the Company has
received the Initial $500,000 Payment and has provided evidence of such
payment to Lenders in form satisfactory to Lenders, (2) the CN Acquisition
has occurred, (3) CN does not in any manner owe and is not in any manner
liable for Indebtedness which in the aggregate exceeds $5,250,000, the terms
of which are acceptable to Majority Lenders, in their sole discretion, (4)
the Extension Conditions are satisfied, and (5) the Company has paid Xxxxxxxx
& Knight L.L.P. for all fees and expenses incurred in connection with the
Loan Agreement and other Loan Documents, including all amendments thereto; and
(d) thereafter, during the period from March 1, 2001, through
November 31, 2001, the Maturity Date shall automatically extend to the last
date of the month immediately succeeding the previous Maturity Date if (i)
the Company satisfied section (c) of this definition, (ii) the Company
receives an additional equity payment from Gorriti on or before the last day
of the then current month in an amount equal to or greater than $500,000,
(iii) the Company has received all such prior required monthly payments, and
(iv) the Company has provided evidence of each such payment to Lenders in
form satisfactory to Lenders.
In no event shall the Maturity Date exceed January 31, 2002."
ARTICLE IIA.
AMENDMENT TO ORIGINAL NOTES.
Section 2.1A. AMENDMENT. The second paragraph of each Original Note
is hereby deleted in its entirety and replaced with the following:
"The principal amount of this Note, together with all interest
accrued hereon, shall be due and payable in full on the Maturity Date (as
such term is defined in the Loan Agreement). From the date hereof through
January 31, 2001, the principal amount of the Loan (exclusive of any past due
principal or interest) from time to time outstanding shall bear interest on
each day outstanding at the rate of twelve percent
(12%) per annum, calculated on the basis of actual days elapsed and a year of
360 days. From February 1, 2001, until the maturity hereof, the principal
amount of the Loan and all accrued and unpaid interest (exclusive of any past
due principal or interest) from time to time outstanding shall bear interest
at the rate of eight percent (8%) per annum, calculated on the basis of
actual days elapsed and a year of 365 days. All past due principal of and
interest on this Note shall bear interest on each day outstanding at the rate
of fourteen percent (14%) per annum, calculated on the basis of actual days
elapsed and a year of 365 days, and such interest shall be due and payable
daily as it accrues."
ARTICLE III.
CONDITIONS OF EFFECTIVENESS
Section 3.1. EFFECTIVE DATE. This Amendment shall become effective
when, and only when:
(a) Majority Lenders shall have received, at Majority Lenders'
office, a counterpart of each of the following documents, executed and
delivered by Borrower:
(i) this Amendment;
(ii) an Amended and Restated Warrant in favor of each
Lender, in the form of Exhibit A hereto; and
(iii) a Modification Agreement, in the form of Exhibit B
hereto:
(b) Majority Lenders shall have received such other supporting
documents as Majority Lenders may reasonably request.
Section 3.2. EXPENSES OF COUNSEL. In connection with this Amendment,
Borrower shall have the obligation to reimburse the Majority Lenders for the
fees and expenses of their counsel and for all recording fees incurred in
connection herewith. The Company shall pay this amount to Majority Lenders on or
prior to February 7, 2001.
ARTICLE IV.
REPRESENTATIONS AND WARRANTIES
Section 4.1. REPRESENTATIONS AND WARRANTIES OF BORROWER. In order to
induce Majority Lenders to enter into this Amendment, Borrower represents and
warrants to each Lender that:
(a) The Company has heretofore made a full disclosure to
Majority Lenders of its financial position, including full disclosure (either
in writing or orally) of all monetary
and covenant defaults to the Loan Agreement and other Loan Documents which
exist on the date hereof. Furthermore, the Company hereby represents and
warrants that all representations and warranties contained in Article III of
the Original Loan Agreement shall be true and correct at and as of April 2,
2001, except to the extent that the facts on which such representations and
warranties are based have been changed by the extension of credit under the
Loan Agreement.
(b) Borrower is duly authorized to execute and deliver this
Amendment and is and will continue to be duly authorized to borrow monies and
to perform its obligations under the Loan Agreement. Borrower has duly taken
all corporate action necessary to authorize the execution and delivery of
this Amendment and to authorize the performance of the obligations of
Borrower hereunder and thereunder.
(c) The execution and delivery by Borrower of this Amendment,
the performance by Borrower of its obligations hereunder and the consummation
of the transactions contemplated hereby do not and will not conflict with any
provision of law, statute, rule or regulation or of the certificate of
incorporation and bylaws of Borrower, or of any material agreement, judgment,
license, order or permit applicable to or binding upon Borrower, or result in
the creation of any lien, charge or encumbrance upon any assets or properties
of Borrower. Except for those which have been obtained, no consent, approval,
authorization or order of any court or governmental authority or third party
is required in connection with the execution and delivery by Borrower of this
Amendment or to consummate the transactions contemplated hereby.
(d) When duly executed and delivered, this Amendment will be a
legal and binding obligation of Borrower, enforceable in accordance with its
terms, except as limited by bankruptcy, insolvency or similar laws of general
application relating to the enforcement of creditors' rights and by equitable
principles of general application.
ARTICLE IV.A.
AMENDMENT TO SECURITY AGREEMENT
Section 4.1A. AMENDMENT TO SECURITY AGREEMENT. Borrower has notified
Majority Lenders that the following personal property has been pledged by
Borrower to secure the payment of a secondary bridge loan obtained by
Borrower with a maximum principal amount of $1,500,000 (the "Bridge Loan"):
(i) the Gyemant litigation pending in the US District Court Central District
of California, Los Angeles Division (the "Litigation") and (ii) the
television station known as K09OVO, which is located in Beaumont, Texas (the
"Station"). Majority Lenders, on behalf of all Lenders, hereby agree to
release any and all Liens held by Lenders in the Litigation and the Station.
Section 4.2.A. PAYOFF OF BRIDGE LOAN. Borrower hereby agrees that
(i) the Litigation and the Station (including any and all proceeds thereof)
shall be pledged as security for the Loans once the Bridge Loan is paid off.
Furthermore, if the Litigation is
settled or if a judgment is rendered prior to the full payment of the Bridge
Loan, then any and all proceeds resulting from the Litigation's settlement,
judgment or otherwise which exceed the amount owed by Borrower under the
Bridge Loan (which such amount shall not exceed $1,500,000) shall be pledged
by Borrower as security for the Loans. In the event that the Litigation is
settled or a judgment is rendered or in the event that the Bridge Loan is
fully paid, Borrower agrees to deliver to Majority Lenders, upon Majority
Lenders' request, any and all security agreements, financing statements
and/or amendments in form and substance satisfactory to Majority Lenders for
the purpose of granting, confirming, protecting and perfecting Liens or
security interests in the Litigation and/or the Stations to further secure
the Obligations (including any and all proceeds thereof).
ARTICLE V.
MISCELLANEOUS
Section 5.1. RATIFICATION OF AGREEMENTS. The Original Loan
Agreement, as hereby amended is hereby ratified and confirmed in all
respects. The Original Notes, as hereby amended, are hereby ratified and
confirmed in all respects. The Loan Documents, as they may be amended or
affected by this Amendment, are hereby ratified and confirmed in all
respects. Any reference to the Loan Agreement in any Loan Document shall be
deemed to be a reference to the Original Loan Agreement as hereby amended.
Any reference to the Notes in any Loan Document shall be deemed to be a
reference to the Original Notes as hereby amended. The execution, delivery
and effectiveness of this Amendment shall not, except as expressly provided
herein, operate as a waiver of any right, power or remedy of Lenders under
the Loan Agreement or any other Loan Document nor constitute a waiver of any
provision of the Loan Agreement or any other Loan Document.
Section 5.2. SURVIVAL OF AGREEMENTS. All representations,
warranties, covenants and agreements of Borrower herein shall survive the
execution and delivery of this Amendment and the performance hereof,
including without limitation the making or granting of the Loans, and shall
further survive until all of the Obligations are paid in full. All statements
and agreements contained in any certificate or instrument delivered by
Borrower hereunder or under the Loan Agreement to any Lender shall be deemed
to constitute representations and warranties by, and/or agreements and
covenants of, Borrower under this Amendment and under the Loan Agreement.
Section 5.3. LOAN DOCUMENTS. This Amendment is a Loan Document, and
all provisions in the Loan Agreement pertaining to Loan Documents apply
hereto and thereto.
Section 5.4. GOVERNING LAW. This Amendment shall be governed by and
construed in accordance the laws of the State of Texas and any applicable
laws of the
United States of America in all respects, including construction, validity
and performance.
Section 5.5. COUNTERPARTS; FAX. This Amendment may be separately
executed in counterparts and by the different parties hereto in separate
counterparts, each of which when so executed shall be deemed to constitute
one and the same Amendment. This Amendment may be validly executed by
facsimile or other electronic transmission.
Section 5.6. MISCELLANEOUS. Borrower hereby warrants and Majority
Lenders hereby acknowledge that a signatory for Borrower, Xxxxx X. Xxxxxx, is
a Lender under the Loan Agreement, that full disclosure of this has been made
to Majority Lenders, that Majority Lenders and their assigns acknowledge such
disclosure, and that Borrower has agreed to release, defend and hold
harmless, Xx. Xxxxxx from any and all claims related to and arising from this
Amendment.
THIS AMENDMENT AND THE OTHER LOAN DOCUMENTS REPRESENT THE FINAL AGREEMENT
BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR,
CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO
UNWRITTEN ORAL AGREEMENTS OF THE PARTIES.
[THE REMAINDER OF THIS PAGE HAS BEEN INTENTIONALLY LEFT BLANK.] IN WITNESS
WHEREOF, this Amendment is executed as of the date first above written.
BORROWER:
HISPANIC TELEVISION NETWORK, INC.
By: /s/ Xxxxxxxx Xxxx
---------------------------------------
Xxxxxxxx Xxxx
Chief Financial Officer and Secretary
By: /s/ Xxxxx Xxxxxx
----------------------------------------
Xxxxx X. Xxxxxx
Chairman of the Board
MAJORITY LENDERS:
XXXX XXXXX STRATEGIC PARTNERS, L.P.
By: GMSP Operating Partners, L.P., its general
partner
By: GMSP, L.L
By: /s/ J. Xxxxxxx Xxxxxxx
----------------------------------------
J. Xxxxxxx Xxxxxxx, Principal
GAINSCO, INC.
By: /s/ XXXXXXX X. XXXXXX
----------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Sr. Vice President
