Exhibit 10.6
[Execution Copy]
SEVENTH AMENDMENT TO LOAN AGREEMENT AND AMENDMENT TO NOTES
THIS SEVENTH AMENDMENT TO LOAN AGREEMENT AND AMENDMENT TO NOTES (herein
called the "Amendment") is entered into as of April 17, 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.
W I T N E S S E T H:
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, as amended to the date hereof,
the "Original Notes");
WHEREAS, Borrower and Majority Lenders previously entered into (i) that
certain Fifth Amendment to Loan Agreement and Amendment to Notes dated as of
January 31, 2001 (the "Fifth Amendment"), and (ii) that certain Sixth Amendment
to Loan Agreement dated as of February 7, 2001 (the "Sixth Amendment"; the Fifth
Amendment and the Sixth Amendment are herein collectively called the
"Restructuring Amendments"), pursuant to which Borrower and Majority Lenders
restructured the Original Loan Agreement;
WHEREAS, the facts surrounding the terms of the Restructuring
Amendments have changed and the Original Loan Agreement and Original Notes
require additional restructuring;
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 Seventh 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. Sections 2.5(b) through (e) of the
Original Loan Agreement are hereby deleted in their entirety and replaced with
the following:
"(b) The Company shall make the following prepayments to the
Lenders (pro rata in accordance with Section 2.4), each such prepayment
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:
(i) On or before April 30, 2001, an amount equal to at
least $1,000,000;
(ii) On or before May 31, 2001, an additional amount
equal to at least $1,000,000;
(iii) On or before June 30, 2001, an additional amount
equal to at least $500,000; and
(iv) On or before July 31, 2001, an additional amount
equal to at least $500,000.
(c) The Company shall prepay to the Lenders (pro rata in
accordance with Section 2.4) twenty-five percent (25%) of all equity
(net of actual expenses incurred with respect thereof) raised by the
Company which is in excess of the equity payments required to be raised
by the Company in the definition of "Maturity Date", 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 proceeds described
herein, and is in addition to amounts required to be prepaid to Lenders
pursuant to Section 2.5(b).
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(d) 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 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, (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 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. DEFINITIONS. The following definitions in Article 7 of the
Original Loan Agreement are hereby deleted in their entirety and replaced with
the following:
"Maturity Date" shall mean the following:
(a) April 30, 2001, if the following clause (b) is not
satisfied to Lenders' satisfaction;
(b) May 31, 2001, if, on or before April 30, 2001:
(i) the Company raises an amount equal to or
greater than $1,500,000 in equity (net of actual expenses
incurred with respect thereof) and the Company provides
evidence of the Company's receipt of such equity payment
in form satisfactory to Lenders, and
(ii) the Company has made all prepayments of
principal and interest required pursuant to Sections
2.5(b)(i) and 2.5(c) of this Agreement, and
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(iii) the Company has delivered to Bank of
America, N.A. or such other institution as reasonably
satisfactory to Majority Lenders, an amount equal to all
outstanding principal, accrued and unpaid interest and
other Obligations payable to Lenders to be held in escrow
by Bank of America, N.A. or such other institution, and
(iii) 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;
(c) June 30, 2001, if:
(i) the Company satisfied section (b) of this
definition, and
(ii) on or before May 31, 2001, (A) the Company
raises an additional amount equal to or greater than
$1,500,000 in equity (net of actual expenses incurred
with respect thereof) and the Company provides evidence
of the Company's receipt of such equity payment in form
satisfactory to Lenders and (B) the Company has made all
prepayments of principal and interest required pursuant
to Sections 25(b)(ii) and 2.5(c) of this Agreement;
(d) July 31, 2001, if:
(i) the Company satisfied section (c) of this
definition, and
(ii) on or before June 30, 2001, (A) the
Company raises an additional amount equal to or greater
than $1,000,000 in equity (net of actual expenses
incurred with respect thereof) and the Company provides
evidence of the Company's receipt of such equity payment
to Lenders in form satisfactory to Lenders and (B) the
Company has made all prepayments of principal and
interest required pursuant to Sections 2.5(b)(iii) and
2.5(c) of this Agreement;
(e) August 31, 2001, if:
(i) the Company satisfied section (d) of this
definition, and
(ii) on or before July 31, 2001, (A) the
Company raises an additional amount equal to or greater
than $1,000,000 in equity (net of actual expenses
incurred with respect thereof) and the Company provides
evidence of the Company's receipt of such equity payment
to Lenders in form satisfactory to Lenders and (B) the
Company has made all
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prepayments of principal and interest required pursuant
to Sections 2.5(b)(iv) and 2.5(c) of this Agreement;
In no event shall the Maturity Date exceed August 31, 2001.
"Permitted" Indebtedness" means the following: (a) the Obligations.
(b) unsecured Indebtedness between the Company and its
Subsidiaries arising in the ordinary course of business.
(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."
Section 2.5. DELETED DEFINITIONS. The definitions of "CN", "CN
Acquisition", "Extension Conditions", "Gorriti", "Initial $500,000 Payment" and
"Initial Gorriti Payment" are hereby deleted from Article VII of the Original
Loan Agreement.
Section 2.6. ACKNOWLEDGMENT OF RATE OF INTEREST. Borrower hereby
acknowledges and agrees that, since February 1, 2001, interest on the Notes has
accrued at a rate of thirteen percent (13%) per annum.
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 thirteen percent
(13%) per annum, calculated
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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 sixteen percent (16%) 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 Amendment to Warrant in favor of each Lender, in the form
of Exhibit A hereto; and
(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 April 30, 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 are true and correct at and as of the
date hereof, except to the extent that (i) the facts on which such
representations and warranties are based have been changed by the extension of
credit under the Loan Agreement or (ii) with respect to Section 3.6 of the Loan
Agreement, the Company has incurred certain trade debt in the ordinary course of
its business, which trade debt has been outstanding for periods that
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may be in excess of regular aging limits, and which trade debt will be paid by
the Company within 90 days of the date hereof.
(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 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. RELEASE OF CLAIMS. Borrower hereby represents and warrants
that there are no liabilities, claims, suits, debts, liens, losses, causes of
action, demands, rights, damages or costs, or expenses of any kind, character or
nature whatsoever, known or unknown, fixed or contingent (collectively, the
"Claims"), which Borrower or any of its Subsidiaries may have or
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claim to have against Lenders or any of their affiliates, agents, employees,
officers, directors, representatives, attorneys, successors, or assigns
(collectively, the "Lender Released Parties"), which might arise out of or be
connected with any act of commission or omission of the Lender Released Parties
existing or occurring on or prior to the date of this Amendment, including
without limitation any Claims arising with respect to the Obligations, the Loan
Agreement or any Loan Documents. Borrower hereby releases, acquits, and forever
discharges the Lender Released Parties from any and all Claims that Borrower or
any such Subsidiary may have or claim to have, relating to or arising out of or
in connection with the Obligations, the Loan Agreement or any Loan Documents or
any other agreement or transaction contemplated hereby or any action taken in
connection therewith from the beginning of time up to and including the date of
the execution and delivery of this Amendment. Borrower further agrees forever to
refrain and to cause each of its Subsidiaries to refrain from commencing,
instituting, or prosecuting any lawsuit, action, or other proceeding against any
Lender Released Parties with respect to any and all Claims.
Section 5.3. 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 and all obligations under the Loan
Documents are performed 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.
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.]
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IN WITNESS WHEREOF, this Amendment is executed as of the date first above
written.
BORROWER:
HISPANIC TELEVISION NETWORK, INC.
By:
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Name:
Title:
MAJORITY LENDERS:
XXXX XXXXX STRATEGIC PARTNERS, L.P.
By: GMSP Operating Partners, L.P., its
general partner
By: GMSP, L.L.C.
By:
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J. Xxxxxxx Xxxxxxx, Principal
GAINSCO, INC.
By:
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Name:
Title:
