Exhibit 10.36
[Execution Copy]
THIRD AMENDMENT TO LOAN AGREEMENT AND AGREEMENT
THIS THIRD AMENDMENT TO LOAN AGREEMENT AND AGREEMENT (herein called
the "Amendment") dated as of December 15, 2000 (the "Amendment Closing
Date"), by and among Hispanic Television Network, Inc., a Delaware
corporation ("Borrower") and Xxxx Xxxxx Strategic Partners, L.P. and GAINSCO,
Inc., representing Majority 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, and
have most recently entered into that certain Second Amendment to Loan Agreement
and Agreement dated as of November 6, 2000 (the "Second Amendment") (such
Agreement, as amended (including by virtue of the Second Amendment),
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;
WHEREAS, Borrower executed those certain Warrants in favor of each
Lender, pursuant to the terms of the Original Loan Agreement (herein referred to
collectively as the "Warrants" and individually as a "Warrant");
WHEREAS, pursuant to the terms of the Original Loan Agreement, Borrower
executed certain Security Documents in favor of each Lender, including that
certain Pledge Agreement dated as of July 25, 2000, for the benefit of each
Lender (the "Pledge Agreement); and
WHEREAS, Borrower and Majority Lenders desire to amend the Original
Loan Agreement for the purposes as 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. 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. 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 Third Amendment to Loan Agreement.
"LOAN AGREEMENT" means the Original Loan Agreement as
amended hereby.
ARTICLE II.
AMENDMENTS TO ORIGINAL LOAN AGREEMENT AND CONSENT
Section 2. FUNDING OF THE ESCROWED FUNDS. The last sentence of
Section 1.2 of the Original Loan Agreement is hereby deleted in its entirety
and replaced with the following:
"The funding of the Escrowed Funds to the Company shall occur
as follows: (i) $1,000,000 of the Escrowed Funds (herein referred to as
the "Initial Escrow Amount"), not including interest which has accrued
on the Escrowed Funds while being held in escrow, shall be funded to
the Company on or before November 6, 2000, and (ii) $387,400 of the
Escrowed Funds (herein referred to as the "Second Escrow Amount"), not
including interest which has accrued on the Escrowed Funds while being
held in escrow, shallbe funded to the Company on or before December 15,
2000. The Company shall not be entitled to receive any other Escrowed
Funds, and the parties agree that those Escrowed Funds remaining after
the funding of the Initial Escrow Amount and the Second EscrowAmount
(herein referred to as the "Remaining Escrowed Funds") shall be
returned PRO RATA to each Lender. The Initial Escrow Amount and the
Second Escrow Amount shall be applied PRO RATA to each Lender, in
accordance with the Percentage Shares at the time of the release of the
Initial Escrow Amount and the Second Escrow Amount to the Company,
respectively."
Section 2. DISTRIBUTION OF REMAINING ESCROWED FUNDS TO LENDERS. The
parties agree that upon the funding of the Second Escrow Amount to the Company,
Lenders shall have no additional obligation to lend any Remaining Escrowed Funds
to the Company, and the Remaining Escrowed Funds shall be returned to Lenders.
Therefore, the Company and Majority Lenders hereby agree and covenant to
promptly execute a certificate in the form prescribed in the Escrow Agreement
for the purpose of instructing the Escrow Agent to distribute (i) the Second
Escrow Amount to the Company, and (ii) the Remaining Escrowed Funds to Lenders
as required pursuant to the terms of Section 1.2 and this Amendment.
As a consequence of the agreement set forth in this Section 2.2,
Article 4A. of the Original Loan Agreement is hereby deleted in its entirety.
2
ARTICLE II.A.
AGREEMENTS RELATING TO THE WARRANTS
Section 2.1A. EXERCISE PRICE. Notwithstanding anything to the
contrary in the Warrants, Borrower hereby agrees that the Exercise Price (as
such term is defined in the Warrants) shall not exceed $0.75. Therefore, in
the event that pursuant to the operation of clauses (a) through (e) of the
definition of Exercise Price, the Exercise Price is determined to be an
amount which exceeds $0.75, such amount shall be disregarded and the Exercise
Price shall equal $0.75, in lieu thereof. Such Exercise Price, as determined
pursuant to clauses (a) through (e) of the definition of Exercise Price and
this Section 2.1A, shall be applied to the determination of the number of
Shares.
Section 2.2A. ILLUSTRATIVE EXAMPLE. As an illustrative example of
the operation of Section 2.1A of this Amendment andSection 2.2A of the Second
Amendment (which effected an increase in the number of Shares exercisable
pursuant to the Warrant), if without giving effect to this Amendment and the
Second Amendment the clause (c) of the definition of Exercise Price would
have resulted in an Exercise Price of $3.00 per share, such amount shall be
disregarded and the maximum Exercise Price of $0.75 per Share shall apply.
Furthermore, in order to determine the number of Shares pursuant to the
Warrant, if a Purchaser (as definedin the Warrant) loaned $950,000 to the
Company and the interest payable under such loan was $50,000, the total
amount loaned to the Company under the Loan Agreement was $4.75 million and
the interest payable under such loans was $250,000, and the ExercisePrice was
$0.75 per share (pursuant to the application of Section 2.1A), then without
giving effect to Section 2.2A of the Second Amendment (and assuming that the
Company has repaid in full all amounts owing pursuant to the Loan Agreement
on or before January 31, 2001), the Shares would be 1,333,333 (i.e.,
$5,000,000 divided by $0.75, with such quotient (6,666,667) multiplied by
1/5), and after giving effect to Section 2.2A, the Shares would be 1,666,667
(1,333,333 multiplied by 125%). As an additional illustrative example, in the
event that such 1,333,333 Shares (without giving effect to the Second
Amendment) is increased to 2,000,000 because the Company has not repaid in
full all amounts owing pursuant to the Loan Agreement on or prior to March
15, 2001,then Section 2.2A shall operate to increase the number of Shares to
2,500,000 (2,000,000 times 125%). The parties also acknowledge that the
Exercise Price and the determination of the number of Shares (as determined
after giving effect to this Amendment)shall also be subject to adjustment
pursuant to Section 3 of the Warrant.
Section 2.4A. CONFIRMATION OF THIS ARTICLE IIA. Immediately after
the effectiveness of this Amendment, the Company shall issue a supplement for
attachment to each Warrant (in suchform as is reasonably satisfactory to
Majority Lenders) that will set forth the provisions of this Article IIA and
the provisions of Article IIA of the Second Amendment (it being recognized
that this Article IIA shall be effective upon the date of this Amendment
regardless of the date upon which such supplement is delivered to the holders
of Warrants).
ARTICLE III.
CONDITIONS OF EFFECTIVENESS
Section 3. EFFECTIVE DATE. This Amendment shall become effective
when, and only when:
(a) Majority Lenders shall have received, at Majority Lenders'
office, a counterpart of this Amendment executed and delivered by Borrower;
and
(b) Majority Lenders shall have received such other supporting
documents as Majority Lenders may reasonably request; and
Section 3. EXPENSES OF COUNSEL. In connection with this Amendment and
the Second Amendment, the Company shall have the obligation to reimburse the
Majority Lenders for the fees and expenses of their counsel in the amount of
$15,000. The Company shall pay this amount to Majority Lenders on or prior to
January 31, 2001.
ARTICLE IV.
REPRESENTATIONS AND WARRANTIES
Section 4.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 representations and warranties contained in Article III of the
Original Loan Agreement are true and correct at and as of the time of the
effectiveness hereof, 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 V.
MISCELLANEOUS
Section 5. RATIFICATION OF AGREEMENTS. The Original Loan Agreement,
as hereby amended is hereby ratified and confirmed in allrespects. The Loan
Documents and the Escrow Agreement, 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 or in the Escrow
Agreement shall be deemed to be a reference to the Original Loan Agreement 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. 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
containedin 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.]
IN WITNESS WHEREOF, this Amendment is executed as of the date first
above written.
BORROWER:
HISPANIC TELEVISION NETWORK, INC.
By: /s/ Xxxxxxxx Xxxx
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Xxxxxxxx Xxxx
Chief Financial Officer and Secretary
MAJORITY LENDERS:
XXXX XXXXX STRATEGIC PARTNERS, L.P.
By: GMSP Operating Partners, L.P., its
general partner
By: GMSP, L.L.C.
By: /s/ J. Xxxxxxx Xxxxxxx
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J. Xxxxxxx Xxxxxxx, Principal
GAINSCO, INC.
By: /s/ Xxxxxxx X. Xxxxxx
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Name: Xxxxxxx X. Xxxxxx
