THIRD AMENDMENT TO CREDIT AGREEMENT

Exhibit 10.38

THIRD AMENDMENT TO

CREDIT AGREEMENT

THIS THIRD AMENDMENT TO CREDIT AGREEMENT (this “Amendment”), dated as of February 20, 2004, is by and among XXXXXX BROADCASTING COMPANY (the “Borrower”), certain Subsidiaries of the Borrower (the “Guarantors”), the Lenders that agree to the terms hereof and WACHOVIA BANK, NATIONAL ASSOCIATION (successor to First Union National Bank) (“Wachovia”), in its capacity as Administrative Agent for the Lenders (in such capacity, the “Administrative Agent”). Capitalized terms used herein without definition shall have the meanings given to them in that certain Credit Agreement described below.

W I T N E S S E T H

WHEREAS, the Borrower, the Guarantors, the Lenders party thereto and the Administrative Agent have entered into that certain Credit Agreement dated as of March 21, 2002 (as previously amended or modified and as further amended, modified, supplemented or restated from time to time, the “Credit Agreement”);

WHEREAS, the Borrower has requested certain amendments to the Credit Agreement; and

WHEREAS, the Required Lenders have agreed to such amendments subject to the terms and conditions set forth herein.

NOW, THEREFORE, in consideration of the agreements hereinafter set forth, and for other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the parties hereto agree as follows:

ARTICLE I

AMENDMENTS TO CREDIT AGREEMENT

1.1 Treatment of Planned Property Sales. The third paragraph of Section 1.3 of the Credit Agreement is hereby amended and restated in its entirety to read as follows:

For purposes of computing the financial covenants set forth in Section 5.9 for any applicable test period, any Permitted Acquisition, any permitted sale of assets (including a stock sale) and any prepayment of the Loans with the Net Cash Proceeds from any such permitted sale of assets that was consummated during such period shall have been deemed to have taken place as of the first day of such applicable test period.

ARTICLE II

CONDITIONS TO EFFECTIVENESS

2.1 Closing Conditions.

This Amendment shall become effective as of the date first above written upon satisfaction of the following conditions (in form and substance reasonably acceptable to the Administrative Agent):

(a) Executed Amendment. Receipt by the Administrative Agent of a copy of this Amendment duly executed by each of the Credit Parties and the Required Lenders.

(b) Fees. (i) Receipt by the Administrative Agent, on behalf of each Lender that executes this Amendment by 5:00 p.m. (EST) on February 20, 2004, of an amendment fee equal to 0.10% of the sum of such Lender’s Revolving Commitment plus such Lender’s outstanding Term Loans; and (ii) receipt by the Administrative Agent of all fees and expenses of the Administrative Agent in connection with the preparation, execution and delivery of this Amendment, including, without limitation, the fees and expenses of Xxxxx & Xxx Xxxxx PLLC.

ARTICLE III

MISCELLANEOUS

3.1 Amended Terms. The term “Credit Agreement” as used in each of the Credit Documents shall hereafter mean the Credit Agreement as amended by this Amendment. Except as specifically amended hereby or otherwise agreed, the Credit Agreement is hereby ratified and confirmed and shall remain in full force and effect according to its terms.

3.2 Representations and Warranties of Credit Parties. Each of the Credit Parties represents and warrants as follows:

(a) It has taken all necessary action to authorize the execution, delivery and performance of this Amendment.

(b) This Amendment has been duly executed and delivered by such Person and constitutes such Person’s legal, valid and binding obligations, enforceable in accordance with its terms, except as such enforceability may be subject to (i) bankruptcy, insolvency, reorganization, fraudulent conveyance or transfer, moratorium or similar laws affecting creditors’ rights generally and (ii) general principles of equity (regardless of whether such enforceability is considered in a proceeding at law or in equity).

(c) No consent, approval, authorization or order of, or filing, registration or qualification with, any court or governmental authority or third party is required in connection with the execution, delivery or performance by such Person of this Amendment.

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(d) The representations and warranties set forth in Article III of the Credit Agreement are true and correct in all material respects as of the date hereof (except for those which expressly relate to an earlier date).

3.3 Acknowledgment of Guarantors. The Guarantors acknowledge and consent to all of the terms and conditions of this Amendment and agree that this Amendment and all documents executed in connection herewith do not operate to reduce or discharge the Guarantors’ obligations under the Credit Documents.

3.4 Credit Document. This Amendment shall constitute a Credit Document under the terms of the Credit Agreement.

3.5 Entirety. This Amendment and the other Credit Documents embody the entire agreement between the parties hereto and supersede all prior agreements and understandings, oral or written, if any, relating to the subject matter hereof.

3.6 Counterparts; Telecopy. This Amendment may be executed in any number of counterparts, each of which when so executed and delivered shall be an original, but all of which shall constitute one and the same instrument. Delivery of an executed counterpart to this Amendment by telecopy shall be effective as an original and shall constitute a representation that an original will be delivered.

3.7 General Release. In consideration of the Required Lenders entering into this Amendment, the Credit Parties hereby release the Administrative Agent, the Lenders, and the Administrative Agent’s and the Lenders’ respective officers, employees, representatives, agents, counsel and directors from any and all actions, causes of action, claims, demands, damages and liabilities of whatever kind or nature, in law or in equity, now known or unknown, suspected or unsuspected to the extent that any of the foregoing arises from any action or failure to act under the Credit Agreement on or prior to the date hereof.

3.8 GOVERNING LAW. THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES UNDER THIS AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.

3.9 Consent to Jurisdiction; Service of Process; Waiver of Jury Trial. The jurisdiction, services of process and waiver of jury trial provisions set forth in Sections 9.14 and 9.17 of the Credit Agreement are hereby incorporated by reference, mutatis mutandis.

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IN WITNESS WHEREOF the Borrower, the Guarantors and the Required Lenders have caused this Amendment to be duly executed on the date first above written.

BORROWER:		XXXXXX BROADCASTING COMPANY, a Washington corporation
		By:		/s/ Xxxxx X. Xxxxxxx
		Name:		Xxxxx X. Xxxxxxx
		Title:		Assistant Secretary
GUARANTORS:		XXXXXX RADIO REGIONAL GROUP INC., a Washington corporation
		XXXXXX BROADCASTING-PORTLAND RADIO, L.L.C., a Delaware limited liability company
		XXXXXX BROADCASTING-SEATTLE RADIO, L.L.C., a Delaware limited liability company
		XXXXXX BROADCASTING-PORTLAND TV, L.L.C.,
		a Delaware limited liability company
		XXXXXX BROADCASTING-SEATTLE TV, L.L.C.,
		a Delaware limited liability company
		XXXXXX BROADCASTING-S.E. IDAHO TV, L.L.C.,
		a Delaware limited liability company
		XXXXXX BROADCASTING-IDAHO TV, L.L.C.,
		a Delaware limited liability company
		XXXXXX BROADCASTING-GEORGIA, L.L.C.,
		a Delaware limited liability company
		XXXXXX BROADCASTING-OREGON TV, L.L.C.,
		a Delaware limited liability company
		XXXXXX BROADCASTING-WASHINGTON TV, L.L.C., a Delaware limited liability company
		By:		/s/ Xxxxx X. Xxxxxxx
		Name:		Xxxxx X. Xxxxxxx
		Title:		Assistant Secretary

ADMINISTRATIVE AGENT:
		WACHOVIA BANK, NATIONAL ASSOCIATION as Administrative Agent and as a Lender
		By:		/s/ Xxxxxxxx X. Xxxxxxxxx
		Name:		Xxxxxxxx X. Xxxxxxxxx
		Title:		Managing Director
LENDERS:
		LANDMARK CDO LTD. & LANDMARK II CDO LTD.
		By:		/s/ Illegible
		Name:
		Title:		Authorized Signatory
		BANK OF AMERICA, N.A. As Co-Syndication Agent and as a Lender
		By:		/s/ Xxxx X. Xxxxxxxx
		Name:		Xxxx X. Xxxxxxxx
		Title:		Senior Vice President
		BANK OF MONTREAL
		By:		/s/ Jan Asaul
		Name:		Jan Asual
		Title:		M.D.
		THE BANK OF NEW YORK
		By:		/s/ Xxxxxxx X. Xxxxxxx
		Name:		Xxxxxxx X. Xxxxxxx
		Title:		Vice President

		BLACK DIAMOND CLO 2001-LTD.
		By:		/s/ Xxxx Xxxxxxx
		Name:		Xxxx Xxxxxxx
		Title:		Director
		TRS 1 LLC
		By:		/s/ Xxxxxxx X’Xxxxxx
		Name:		Xxxxxxx X’Xxxxxx
		Title:		Vice President
		BLACK DIAMOND INTERNATIONAL FUNDING, LTD.
		By:		/s/ Xxxx Xxxxxxx
		Name:		Xxxx Xxxxxxx
		Title:		Director
		STANWICH LOAN FUNDING LLC
		By:		/s/ Xxxxx X. Xxxxxxxxx
		Name:		Xxxxx X. Xxxxxxxxx
		Title:		Vice President
		SIERRA CLO 1
		By:		/s/ Xxxx X. Xxxxxxxxx
		Name:		Xxxx X. Xxxxxxxxx
		Title:		Chief Operating Officer Centre Pacific, Manager
		BRYN MAWR CLO, LTD.
		By: Deerfield Capital Management LLC as its Collateral Manager
		By:		/s/ Xxxxx Xxxxxxxx
		Name:		Xxxxx Xxxxxxxx
		Title:		Vice President

		OLYMPIC FUNDING TRUST, SERIES 1999-1
		By:		Xxxxx X. Xxxxxxxxx
		Name:		Xxxxx X. Xxxxxxxxx
		Title:		Authorized Agent
		ROSEMONT CLO, LTD.
		By: Deerfield Capital Management LLC as its Collateral Manager
		By:		/s/ Xxxxx Xxxxxxxx
		Name:		Xxxxx Xxxxxxxx
		Title:		Vice President
		APEX (IDM) CDO I, LTD.
		By: Xxxxx X. Xxxxxx & Company Inc. as Collateral Manager
		By:		/s/ Xxxxxxxx Xxxxxxx
		Name:		Xxxxxxxx Xxxxxxx
		Title:		Managing Director
		FLAGSHIP CLO 2001 - 1
		By: Flagship Capital Management, Inc.
		By:		/s/ Xxxx X. Xxxxx
		Name:		Xxxx X. Xxxxx
		Title:		Director
		FLAGSHIP CLO 2001 – 1
		By: Flagship Capital Management, Inc.
		By:		/s/ Xxxx X. Xxxxx
		Name:		Xxxx X. Xxxxx
		Title:		Director
		GENERAL ELECTRIC CAPITAL CORPORATION
		By:		/s/ Xxxx Xxxxxxxx
		Name:		Xxxx Xxxxxxxx
		Title:		Assistant Vice President

		ING PRIME RATE TRUST
		By: Aeltus Investment Management, Inc. as its investment manager
		By:		/s/ Xxxxxxx Xxxxx
		Name:		Xxxxxxx Xxxxx
		Title:		Vice President
		ING SENIOR INCOME FUND
		By: Aeltus Investment Management, Inc. as its investment manager
		By:		/s/ Xxxxxxx Xxxxx
		Name:		Xxxxxxx Xxxxx
		Title:		Vice President
		PILGRIM CLO 1999 – 1 LTD.
		By: ING Unvestments, LLC as its investment manager
		By:		/s/ Xxxxxxx Xxxxx
		Name:		Xxxxxxx Xxxxx
		Title:		Vice President
		NATIONAL CITY BANK
		By:		/s/ Xxxxxxx X. Xxxxxxx
		Name:		Xxxxxxx X. Xxxxxxx
		Title:		Vice President
		HARBOURVIEW CLO IV, LTD.
		By:		/s/ Xxxx Xxxxxxx
		Name:		Xxxx Xxxxxxx
		Title:		Manager
		HARBOURVIEW CLO V, LTD.
		By:		/s/ Xxxx Xxxxxxx
		Name:		Xxxx Xxxxxxx
		Title:		Manager

		XXXXXXXXXXX SENIOR FLOATING RATE FUND
		By:		/s/ Xxxx Xxxxxxx
		Name:		Xxxx Xxxxxxx
		Title:		Manager
		WASHINGTON MUTUAL BANK
		By:		/s/ Xxxxx Xxxxxxxx
		Name:		Xxxxx Xxxxxxxx
		Title:		Vice President