EXHIBIT 10.5
SECOND AMENDMENT TO
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AMENDED AND RESTATED CREDIT AGREEMENT
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This SECOND AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT (this
"Amendment") dated as of January 14, 2000, is entered into among (1) KSMS-TV,
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INC., a Delaware corporation, TIERRA ALTA BROADCASTING, INC., a Delaware
corporation, CABRILLO BROADCASTING CORPORATION, a California corporation, GOLDEN
HILLS BROADCASTING CORPORATION, a Delaware corporation, LAS TRES PALMAS
CORPORATION, a Delaware corporation, VALLEY CHANNEL 48, INC., a Texas
corporation, TELECORPUS, INC., a Texas corporation, and ENTRAVISION
COMMUNICATIONS COMPANY, L.L.C. ("Entravision"), a Delaware limited liability
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company (each a "Borrower," and collectively, the "Borrowers"), (2) the several
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banks and other financial institutions from time to time parties to the Credit
Agreement referred to below (the "Lenders") and (3) UNION BANK OF CALIFORNIA,
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N.A., as agent for the Lenders (in such capacity, the "Agent").
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RECITALS
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A. The Borrowers, the Lenders and the Agent previously entered into that
certain Amended and Restated Credit Agreement dated as of November 10, 1998 (as
amended by the First Amendment to Amended and Restated Credit Agreement dated as
of December 29, 1999, the "Credit Agreement"). Capitalized terms used herein
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and not defined shall have the meanings assigned to them in the Credit
Agreement.
B. The Borrowers have informed the Agent that they desire to (i) activate
the Incremental Loan facility with an Aggregate Incremental Loan Commitment of
$8,000,000 (such Incremental Loan Commitment to be made available by Union Bank
of California, N.A.), (ii) consummate the purchase of Stations KATH(FM) and
KOFX(FM), El Paso, Texas, from Magic Media, Inc. (the "Magic Media Acquisition")
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for a purchase price of $13,500,000 (net of a previously paid escrow deposit)
and (iii) borrow both Revolving Loans and Incremental Loans for the purpose of
consummating the Magic Media Acquisition. In addition, the Borrowers have
requested that the Incremental Loan facility be amended to permit multiple
Activation Notices to be presented thereunder (provided that the Maximum
Incremental Loan Facility Amount of $100,000,000 shall not be exceeded).
C. In connection therewith, the Borrowers have requested that the Agent
and the Lenders agree to certain amendments and waivers under the Credit
Agreement and the Agent and the Lenders have agreed, in each case subject to the
terms and conditions set forth below.
NOW, THEREFORE, in consideration of the premises and the mutual covenants
herein contained, the parties hereto hereby agree as follows:
SECTION 1. Amendments to Credit Agreement. The Credit Agreement is,
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effective as of the date first set forth above, hereby amended as follows:
(a) The following definitions in Section 1.1 are amended in the following
manner:
(i) the definition of "Activation Date" is amended is its entirety
to read as follows:
"Activation Date": with respect to any Activation Notice presented
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hereunder, the date set forth therein as the effective date of the
portion of the Aggregate Incremental Loan Commitment to be activated
pursuant thereto, which date must be during the period from and
including the Closing Date to but excluding September 30, 2000.
(ii) the definition of "Aggregate Incremental Loan Commitment" is
amended by deleting the reference to "the Activation Notice" and inserting
the following in its place: "the Activation Notices"; and
(iii) the definition of "Incremental Loan Commitment" is amended by
deleting the reference to "the Activation Notice" and inserting the
following in its place: "the Activation Notices".
(b) Section 2.2 is amended in the following manner:
(i) The first sentence of subsection (a) is amended in its entirety
to read as follows:
"From time to time, the Borrowers, and all or certain of the
Lenders who agree in writing to participate in such facility and who
are selected by the Borrowers may, with the consent of the Agent, such
consent not to be unreasonably withheld, during the period from and
including the Closing Date to but excluding September 30, 2000, agree
that such Lenders shall become Incremental Loan Lenders (or, with
respect to any Lender already an Incremental Loan Lender, increase its
Incremental Loan Commitment) by executing and delivering to the Agent
an Activation Notice specifying the respective Incremental Loan
Commitments (or additional Incremental Loan Commitment, as applicable)
of the Incremental Loan Lenders and the Activation Date, and otherwise
duly completed. Notwithstanding any provision in this Agreement to
the contrary, the Aggregate Incremental Loan Commitment shall not
exceed the Maximum Incremental Loan Facility. Each activation of all
or a portion of the Aggregate Incremental Loan Commitment shall be
subject to the prior satisfaction of the conditions precedent set
forth in Section 4.2."
(ii) The following sentence contained in subsection (a) shall be
deleted: "Only one Activation Notice may be given under this Agreement.";
(iii) in subsection (f), the parenthetical phrase shall be amended in
its entirety to read "(as in effect immediately following the final Activation
Date)";
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(iv) a new subsection (j) is inserted at the end of subsection (i) to
read as follows:
"(j) Upon the effectiveness of each portion of the Aggregate
Incremental Loan Commitment activated hereunder, each Incremental Loan
Lender shall permit an adjustment (either through prepayment of a
portion of its outstanding Incremental Loans or by allocation of
borrowings of new Incremental Loans) by the Agent of its outstanding
Incremental Loans such that upon such effectiveness, its Incremental
Loans outstanding shall equal its Incremental Loan Commitment
Percentage (as adjusted to reflect the new Aggregate Incremental Loan
Commitment)."
(c) Section 2.16(b) is amended in the following manner:
(i) the reference to "following activation" shall be deleted and the
following inserted in its place: "following initial activation"; and
(ii) each reference to "the Activation Date" shall be deleted and the
following inserted in its place: "the initial Activation Date".
(d) Section 4.2 is amended in the following manner:
(i) the first reference to "the Activation Date" shall be deleted
and the following inserted in its place: "each Activation Date"; and
(ii) the second reference to "the Activation Date" shall be deleted
and the following inserted in its place: "such Activation Date".
(e) Section 5.8 is amended by inserting the following before each
reference to "6.7(e)": "6.7(a),".
SECTION 2. Waiver and Consents.
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(a) Concurrently herewith Entravision intends to (i) activate the
Incremental Loan facility with an Aggregate Incremental Loan Commitment of
$8,000,000, (ii) consummate the purchase of Stations KATH(FM) and KOFX(FM), El
Paso, Texas, from Magic Media, Inc. (the "Magic Media Acquisition") for a
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purchase price of $14,000,000 (net of a previously paid escrow deposit) and
(iii) borrow both Revolving Loans and Incremental Loans for the purpose of
consummating the Magic Media Acquisition. Each of the foregoing actions requires
(pursuant to Sections 4.2(f), 4.2(g), 4.3(a) and 6.7(a)(i)), as a condition
precedent, that no Default exist on a pro forma basis assuming such activation,
consummation or borrowing. The Borrowers have informed the Lenders that upon
making the borrowings necessary to consummate the Magic Media Acquisition, the
Borrowers' Maximum Total Debt Ratio will be 7.10: 1, which is in excess of the
Maximum Total Debt Ratio of 6.50:1 required by Section 6.1(a) of the Credit
Agreement (such Default, the "Leverage Default"). The Borrowers have requested
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that the Lenders waive the Leverage Default for the purpose of permitting such
activation, consummation and borrowing.
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(b) The Borrowers are requesting that the Lenders agree to waive their
right under Section 4.3 of the Credit Agreement to require the real property
assets (if any) acquired in connection with the Magic Media Acquisition to be
pledged to the Lenders as collateral.
(c) Subject to the fulfillment of the conditions set forth below, the
Agent and the Lenders agree to (i) waive the Leverage Default under Sections
4.2(f), 4.2(g), 4.3(a) and 6.7(a)(i), solely for the purpose of allowing such
activation, consummation and borrowing, it being understood that nothing in this
Amendment shall be construed as waiving the Borrowers' compliance with Section
6.1(a) at any other time, including upon each quarterly testing date therefor,
and (ii) grant a consent under 4.3(e) of the Credit Agreement with respect to
refraining from perfection of the real property interests acquired in connection
with the Magic Media Acquisition. The foregoing waiver and consent are given in
this instance only. The foregoing waiver and consent shall not be construed as a
waiver of or consent to any violation of, or deviation from, any other term or
condition of the Credit Agreement or any other Loan Document, nor shall they be
construed to evidence the willingness of the Agent or the Lenders to give any
other or additional waiver or consent, whether in similar or different
circumstances.
SECTION 3. Conditions to Effectiveness. This Amendment shall become
effective as of the date first set forth above upon receipt by the Agent of the
following, in each case in form and substance satisfactory to the Agent:
(a) this Amendment, duly executed by the parties hereto; and
(b) evidence of the Guarantors' consent (provided that delivery of the
consent of the Luery Trust shall be on a best efforts basis) to this Amendment
on the signature pages hereto.
SECTION 4. Representations and Warranties. Each Borrower hereby
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represents and warrants, for the benefit of the Lenders and the Agent, as
follows: (a) such Borrower has all requisite power and authority to execute,
deliver and perform its obligations under this Amendment, and to perform its
obligations under the Credit Agreement, as amended by this Amendment; (b) all
actions, waivers and consents necessary or appropriate for such Borrower to
execute, deliver and perform this Amendment, and to perform the Credit
Agreement, as amended by this Amendment, have been taken and/or received; (c)
this Amendment, and the Credit Agreement as amended by this Amendment,
constitute the legal, valid and binding obligation of such Borrower (jointly and
severally with the other Borrowers) enforceable against it in accordance with
the terms hereof; and (d) the execution, delivery and performance of this
Amendment, and the performance of the Credit Agreement as amended by this
Amendment, will not (i) violate or contravene any material Requirement of Law,
(ii) result in any material breach or violation of, or constitute a material
default under, any agreement or instrument by which such Borrower or any of its
property may be bound, or (iii) result in or require the creation of any Lien
upon or with respect to any properties of such Borrower, whether such properties
are now owned or hereafter acquired.
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SECTION 5. Reference to and Effect on the Credit Agreement and the Other
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Loan Documents.
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(a) Upon the effectiveness of this Amendment, each reference in the Credit
Agreement to "this Agreement," "hereunder," "hereof" or words of like import
referring to the Credit Agreement, and each reference in the other Loan
Documents to "the Credit Agreement," "thereunder," "thereof" or words of like
import referring to the Credit Agreement, shall mean and be a reference to the
Credit Agreement, as amended hereby.
(b) Except as specifically amended herein, the Credit Agreement and all
other Loan Documents are and shall continue to be in full force and effect and
are hereby in all respects ratified and confirmed.
(c) The execution, delivery and effectiveness of this Amendment shall not
operate as a waiver of any right, power or remedy of the Agent or the Lenders
under the Credit Agreement or any other Loan Documents, nor constitute a waiver
of any provision of the Credit Agreement or any other Loan Documents, except as
specifically set forth herein.
(d) By execution of this Amendment, Telecorpus, Inc. confirms and agrees
that it shall be bound by the First Amendment to Amended and Restated Credit
Agreement dated as of December 29, 1999 as if it had executed such Amendment.
SECTION 6. Execution in Counterparts. This Amendment may be executed in
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any number of counterparts and by different parties hereto in separate
counterparts, each of which when so executed and delivered shall be deemed to be
an original and all of which taken together shall constitute but one and the
same agreement.
SECTION 7. Governing Law. This Amendment shall be governed by, and
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construed and interpreted in accordance with, the laws of the State of
California (without reference to its choice of law rules).
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed and delivered by their proper and duly authorized officers as of
the day and year first above written.
BORROWERS
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KSMS-TV, INC.
By: /s/ Xxxxxx X. Xxxxx
Name: Xxxxxx X. Xxxxx
Title: President
TIERRA ALTA BROADCASTING, INC.
By: /s/ Xxxxxx X. Xxxxx
Name: Xxxxxx X. Xxxxx
Title: Vice President and Treasurer
CABRILLO BROADCASTING CORPORATION
By: /s/ Xxxxxx X. Xxxxxxxxx
Name: Xxxxxx X. Xxxxxxxxx
Title: President
GOLDEN HILLS BROADCASTING CORPORATION
By: /s/ Xxxxxx X. Xxxxx
Name: Xxxxxx X. Xxxxx
Title: President
LAS TRES PALMAS CORPORATION
By: /s/ Xxxxxx X. Xxxxx
Name: Xxxxxx X. Xxxxx
Title: President
TELECORPUS, INC.
By: /s/ Xxxxxx X. Xxxxx
Name: Xxxxxx X. Xxxxx
Title: Chairman/CEO
VALLEY CHANNEL 48, INC.
By: /s/ Xxxxxx X. Xxxxx
Name: Xxxxxx X. Xxxxx
Title: Chairman and Chief Executive Officer
ENTRAVISION COMMUNICATIONS COMPANY, L.L.C.
By: /s/ Xxxxxx X. Xxxxx
Name: Xxxxxx X. Xxxxx
Title: Chairman and Chief Executive Officer and
Managing Member
By: /s/ Xxxxxx X. Xxxxxxxxx
Name: Xxxxxx X. Xxxxxxxxx
Title: President, Chief Operating Officer and Managing
Member
AGENT
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UNION BANK OF CALIFORNIA, N.A., as Agent
By: /s/ Xxxxx Xxxxx
Name: Xxxxx Xxxxx
Title: Vice President
LENDERS
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UNION BANK OF CALIFORNIA, N.A.,
as a Lender
By: /s/ Xxxxx Xxxxx
Name: Xxxxx Xxxxx
Title: Vice President
CIBC INC., as a Lender
By: /s/ Xxxxxx Xxxx
Name: Xxxxxx Xxxx
Title: Executive Director CIBC World Markets Corp. as
Agent
FIRST UNION NATIONAL BANK, as a Lender
By: /s/ Xxxxx X. Xxxxxx
Name: Xxxxx X. Xxxxxx
Title: Senior Vice President
ABN-AMRO BANK N.V., as a Lender
By:____________________________________________
Name:__________________________________________
Title:_________________________________________
By:____________________________________________
Name:__________________________________________
Title:_________________________________________
FLEET BANK, N.A., as a Lender
By: /s/ Xxxxxx X. Xxxxxxx
Name: Xxxxxx X. Xxxxxxx
Title: Vice President
CITY NATIONAL BANK, as a Lender
By: /s/ Xxxxx X. Xxxxxx
Name: Xxxxx X. Xxxxxx
Title: Senior Vice President
THE CIT GROUP/EQUIPMENT FINANCING, INC.,
as a Lender
By: /s/ X.X. Xxxxxx
Name: X.X. Xxxxxx
Title: Assistant Vice President
PARIBAS, as a Lender
By:__________________________________________
Name:________________________________________
Title:_______________________________________
THE BANK OF NOVA SCOTIA, as a Lender
By: /s/ Xxx X. Xxxxxxx
Name: Xxx X. Xxxxxxx
Title: Authorized Signatory
Each of the undersigned, as a "Guarantor" under the aforementioned Credit
Agreement hereby consents to the foregoing Second Amendment to Credit Agreement,
and hereby confirms and agrees that the Loan Documents executed by him, her or
it are and shall continue to be in full force and effect and are hereby ratified
and confirmed in all respects except that, on and after the date first set forth
above, each reference in such Loan Documents to "the Credit Agreement,"
"thereunder," "thereof," "therein" or words of like import referring to the
Credit Agreement shall mean and be a reference to the Credit Agreement as
amended by said Second Amendment to Credit Agreement.
/s/ Xxxxxx X. Xxxxx
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XXXXXX X. XXXXX
/s/ Xxxxxx X. Xxxxxxxxx
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XXXXXX X. XXXXXXXXX
/s/ Xxxx X. Xxxxxx
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XXXX X. XXXXXX
/s/ Xxxxxxx X. Xxxxxx
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XXXXXXX X. XXXXXX
/s/ Xxxx X. Xxxx
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XXXX XXXX
XXXXX XXXXXXX and XXXXX X.
XXXXXX, Co-Trustees of THE XXXX
X. XXXXXX TRUST dated November
2, 1996, a trust formed under the laws
of the District of Columbia
By: /s/ Xxxxx Xxxxxxx
Xxxxx Xxxxxxx, Co-Trustee
By: /s/ Xxxxxx X. Xxxxxx
Xxxxx X. Xxxxxx, Co-Trustee
XXXXX XXXXX, as Trustee of THE
XXXXXX X. XXXXX TRUST OF
1996, a trust formed under the laws of
the State of California
By: /s/ Xxxxx Xxxxx, Trustee
Xxxxx Xxxxx, Trustee
XXXXXX X. XXXXXXXXX and XXXXX X.
XXXXXXXXX, as Trustees of THE 1994
XXXXXXXXX CHILDREN'S GIFT TRUST,
a trust formed under the laws of the
State of California
By: /s/ Xxxxxx X. Xxxxxxxxx
Xxxxxx X. Xxxxxxxxx, Trustee
By: /s/ Xxxxx X. Xxxxxxxxx, TTEE
Xxxxx X. Xxxxxxxxx, Trustee
XXXXXX X. XXXXXXXXX and XXXXX X.
XXXXXXXXX, as Trustees of THE
XXXXXXXXX FAMILY TRUST, a trust
formed under the laws of the State of
California
By: /s/ Xxxxxx X. Xxxxxxxxx
Xxxxxx X. Xxxxxxxxx, Trustee
By: /s/ Xxxxx X. Xxxxxxxxx, TTEE
Xxxxx X. Xxxxxxxxx, Trustee
XXXXX XXXXXXXXXX LUERY TTE,
XXXXX X. XXXXX REVOCABLE
TRUST UA DATED 7/27/98
By: _________________________
Xxxxx Xxxxx, Trustee
ENTRAVISION HOLDINGS, LLC
By: /s/ Xxxxxx X. Xxxxx
Name: Xxxxxx X. Xxxxx
Title: Chairman and Chief Executive Officer
ENTRAVISION-EL PASO, L.L.C.
By: /s/ Xxxxxx X. Xxxxx
Name: Xxxxxx X. Xxxxx
Title: Chairman and Chief Executive Officer
ENTRAVISION, L.L.C.
By: /s/ Xxxxxx X. Xxxxx
Name: Xxxxxx X. Xxxxx
Title: Chairman and Chief Executive Officer
ENTRAVISION COMMUNICATIONS
OF MIDLAND, LLC
By: /s/ Xxxxxx X. Xxxxx
Name: Xxxxxx X. Xxxxx
Title: Chairman and Chief Executive Officer
ENTRAVISION MIDLAND HOLDINGS, LLC
By: /s/ Xxxxxx X. Xxxxx
Name: Xxxxxx X. Xxxxx
Title: Chairman and Chief Executive Officer
LOS CEREZOS TELEVISION COMPANY
By: /s/ Xxxxxx X. Xxxxx
Name: Xxxxxx X. Xxxxx
Title: Chairman and Chief Executive Officer
COMERCIALIZADORA FRONTERA NORTE,
S.A. DE C.V.
By: /s/ Xxxxxx X. Xxxxx
Name: Xxxxxx X. Xxxxx
Title: Chairman and Chief Executive Officer
