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EXHIBIT 10.5
THIRD AMENDMENT TO CREDIT AGREEMENT
THIS THIRD AMENDMENT TO CREDIT AGREEMENT, dated as of June 5, 2000
(this "AGREEMENT") is between CTN MEDIA GROUP, INC., a Delaware corporation
f/k/a College Television Network, Inc. (the "BORROWER"), and LASALLE BANK
NATIONAL ASSOCIATION ("LENDER").
W I T N E S S E T H
WHEREAS, the Borrower and Lender are pates to that certain Credit
Agreement dated as of July 26, 1999, as amended by that certain First Amendment
to Credit Agreement dated as of August 31, 1999 and as further amended by that
certain Second Amendment to Credit Agreement dated as of October 15, 1999 (as so
amended and from time to time hereafter amended, restated, supplemented and in
effect, the "CREDIT AGREEMENT" capitalized terms not otherwise defined herein
shall have the definition provided THEREFOR IN the Credit Agreement) and to
certain other documents executed in connection with the Credit Agreement.
WHEREAS, an Event of Default occurred as a result of Borrower's failure
to meet the minimum EBITDA level pursuant to Section 10.6.1 of the Credit
Agreement for the measurement period ending March 31, 2000 and Lender has
heretofore waived such default, and only such default, in a certain waiver
letter dated May 9, 2000;
WHEREAS, Section 10.21 of the Credit Agreement provides that the
Borrower and its Subsidiaries (which term excludes MPM) may not make or permit
to exist any Investment in any Person, except as expressly permitted thereunder
or as consented to in writing by Lender.
WHEREAS, the Borrower desires to invest aggregate amounts of up to
$3,000,000 from time to time in youth oriented internet companies, which
investments would, at such time, represent a minority interest of the aggregate
issued and outstanding capital stock of such companies on a fully diluted basis.
WHEREAS, Borrower intends to enter into new or replacement leases in
connection with its New York and its Atlanta offices, for amounts in excess of
the limits set forth in Section 10.9 of the Credit Agreement,
WHEREAS, Borrower has requested that Lender (i) increase the Operating
Lease limit set forth in Section 10.9 of the Credit Agreement, (ii) permit and
issue, separately and apart from the Revolving Commitment under the Credit
Agreement, a standby letter of credit on behalf of Borrower in connection with
entering into a new lease by Borrower for its Atlanta operations, (iii) reset
the minimum EBITDA financial performance covenant set forth in Section 10.6.1 of
the Credit Agreement based on revised financial projections of Borrower, and
(iv) waive the provisions of Section 10.21 of the Credit Agreement in order to
permit the aforesaid investments by Borrower (the foregoing being referred to
collectively as the "Requested Modifications").
WHEREAS, the parties wish to amend the Credit Agreement as provided
herein.
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NOW, THEREFORE, in of the foregoing premises (which are incorporated
herein by this reference thereto), to induce Lender to consent to the Requested
Modifications, and for other valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the parties hereto agree as follows:
1. AMENDMENTS TO THE CREDIT AGREEMENT. Effective upon satisfaction of
the conditions precedent set forth in Section 6 below, and in reliance upon the
representations and warranties of the Borrower set forth in the Credit Agreement
and in this Agreement, the Credit Agreement is hereby amended and the Borrower
and Lender agree as follows:
(A) Section 10.6.1 of the Credit Agreement is hereby amended by
deleting said Section in its entirety and substituting the following new Section
10. 6. 1 therefor:
"EBITDA. Not permit EBITDA for any measurement period
indicated below to be less than the applicable amount
set forth below for such measurement period:
<TABLE>
<CAPTION>
MEASUREMENT
PERIOD ENDING EBITDA
------------- ------
<S> <C>
Calendar quarter ending June 30, 2000 -$4,600,000
Calendar quarter ending September 30, 2000 -$1,100,000
Calendar quarter ending December 31, 2000 $3,100,0001"
</TABLE>
(B) Section 10.7 of the Credit Agreement is hereby amended by (i) by
striking the word "and" at the end of subsection (g) thereof and adding the word
"and" at the end of subsection (h) thereof, and (ii) by inserting the following
new subsection (i) after subsection (h) thereof
"(i) the Letter of Credit."
(C) Section 10.9 of the Credit Agreement is hereby amended by deleting
the amount of "$600,000 appearing in the third line thereof and substituting the
amount "$900,000" therefor.
(D) Section 10.21 of the Credit Agreement is hereby amended (i) by
striking the word "and" at the end of subsection (f) thereof and adding the word
"and" at the end of subsection (g) thereof, and (ii) by inserting the following
new subsection (h) after subsection (g) thereof:
"(h) Borrower may make Permitted Equity Investments;
(E) Section 1. 1 is hereby amended by inserting the following new
defined terms in their appropriate alphabetic order:
"Letter of Credit" shall mean that certain standby letter of
credit, Number S524518, in the maximum original face amount of $125,000
issued by Lender, under and pursuant to that certain Application for
Standby Letter of Credit and Master Letter of
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Credit Agreement (the "L/C Applications"), for the account of Borrower
and for the benefit of ML-Capital City, L.L.C. and Lakes-Capital City,
L.L.C., as landlord in connection with that certain lease entered into
by Borrower for premises known as One Capital City Plaza located in
Atlanta, Georgia, which Letter of Credit expires on June 1, 2001."
"Permitted Equity Investment" mean an Investment by Borrower in a
Person which satisfies all of the following conditions:
(i) such Investment is funded entirely by cash equity
contributed by stockholders of Borrower and not from THE
operations or as of Borrower or by Borrower directly or
indirectly incurring any additional Debt;
(ii) the aggregate amount of such investment shall not
exceed, and Borrower shall not commit to invest more than an
aggregate of $3,000,000 in any one Person or related
Persons, and Borrower shall not enter into any capital
call obligations, open commitment to fund additional
equity or like arrangement;
(iii) such Investment represents, in its entirety, a minority
interest in the aggregate issued and outstanding capital
stock of such Person on a fully diluted basis;
(iv) such Investment is a purely passive investment of
equity by Borrower, conferring onto Borrower no rights to
participate (other than to vote such capital stock in the
normal course in accordance with such Person's organizational
and governance documents) and Borrower shall not
participate, in the active day to day management of such
Person;
(iv) such Investments shall be only in youth oriented
internet companies; and
(v) such Person undertakes or commits to advertise its
products or services with Borrower for an aggregate fee to
Borrower in amount substantially equivalent to the amount
invested by Borrower in such Person, and an terms and
conditions that do not deviate substantially from
Borrower's standard, market based rates, terms and
conditions. "
3. CONSENT AND WAIVER. Effective upon satisfaction of the conditions
precedent set forth in Section 6 below, and in reliance upon the representations
and warranties of the Borrower set forth in the Credit Agreement and in this
Agreement, Lender hereby consents to (i) the purchase by Borrower of 100 Class A
Management Units of U-C Holdings, LLC, a Delaware limited liability company ("UC
Holdings"), from Peter Kauff ("Kauff") pursuant to and in accordance with that
certain Purchase and Reaffirmation Agreement by and between Kauff and Borrower
dated as of May 24, 2000, for a maximum aggregate purchase price of $275,000,
and (ii) to the subsequent transfer of such Units to other management employees
of Borrower as part of Borrower's management incentive plans, notwithstanding
the provisions of Sections 10.10, 10.15 or 10.21 of the Credit Agreement to the
contrary, which provisions are hereby waived to the extent, and only to the
extent, the same may be construed to prohibit the foregoing transactions. This
is a consent and one time waiver with respect to the foregoing transactions
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only and is not intended as, nor should it be construed as being, a waiver of
any other provision of the Credit Agreement or of any other Loan Document or as
constituting a course of dealing or conduct as between the parties.
4. REAFFIRMATION. The Borrower and each of its respective
Subsidiaries (other than MPM), as guarantors, debtors, grantors, pledgors
(including in connection with any negative pledges), assignors, or in other
similar capacities in which such parties guarantee the Obligations, grant liens
or security interests in their properties or otherwise act as accommodation
parties, as the case may be, in any case under the Loan Documents, hereby each
ratifies and reaffirms all of its payment and performance obligations,
contingent or otherwise, affirmative or negative under each of such existing
Loan Documents to which it is a party and, to the extent such party granted Hens
on or security interests in any of its properties pursuant to any such existing
Loan Documents as security for the Borrower's obligations under or with respect
to the Credit Agreement, each hereby ratifies and reaffirms such grant of liens
and security interests and confirms and agrees that such liens and security
interests hereafter secure all of the Obligations, in each cue as if each
reference in such existing Loan Documents to the obligations secured thereby are
construed to hereafter mean and refer to such Obligations under the Credit
Agreement and other Loan Documents as hereby amended. Each of the foregoing
hereby acknowledges that each of the Loan Documents remains in full force and
effect and is hereby ratified and confirmed. The execution of this Agreement
shall not operate as a novation, waiver of any right, power or remedy of Lender
nor constitute a waiver of any provision of any of the Loan Documents, except as
expressly set forth herein and shall be limited to the particular instance
expressly set forth. The Borrower and each of the foregoing Persons confirm and
agree that the Guaranty and the Security Agreement and each and every covenant,
condition, obligation, representation (except those representations which relate
only to a specific date, which are confirmed as of such date only), warranty and
provision set forth therein are, and shall continue to be in full force and
effect and are hereby confirmed, reaffirmed and ratified in all respects.
5. REPRESENTATIONS AND WARRANTIES. To induce Lender to enter into
this Agreement, the Borrower represents and warrants to Lender that the
execution, delivery and performance by such Person of this Agreement are within
its corporate power, have been duly authorized by all necessary corporate action
and do not and will not contravene or conflict with any provision of law
applicable to such Person, the Certificate of Incorporation or By-laws of such
Person, or any order, judgment or decree of any court or other agency of
government or any contractual obligation binding upon such Person; and the
Credit Agreement as amended as of the date hereof is the legal, valid and
binding obligation of the Borrower enforceable against the Borrower in
accordance with its terms.
6. CONDITIONS. The effectiveness of the amendments and consents
stated in the Agreement is subject to each of the following conditions precedent
or concurrent:
(a) NO DEFAULT. No Default or Event of Default under the Credit
Agreement, as amended hereby, shall have occurred and be continuing;
(b) WARRANTIES AND REPRESENTATIONS. The warranties and representations
of the Borrower contained in this Agreement, the Credit Agreement, as amended
hereby, and the other
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Loan Documents, shall be true and correct as of the effective date hereof, with
the same effect as though made on such date, except for the revisions to the
schedule to the Credit Agreement attached hereto as Exhibits and except those
representations which relate only to a specific date, which are confirmed as of
such date only;
(C) DELIVERY OF THIRD AMENDMENT. The Borrower, UC Holdings and Willis
Stein & Partners, L.P. shall have executed and delivered this Agreement and any
Joinders hereto, to Lender;
(D) AUTHORIZATION. A copy, duly certified by the secretary or an
assistant secretary of each such Person, of (i) resolutions of such Person's
Board of Directors (or like authority), authorizing or ratifying the execution
and delivery of this Amendment (which copies may be delivered to Lender within
60 days of the date hereof), (ii) all documents evidencing other necessary
corporate action, and (iii) all approvals or consents, if any, with respect to
this Agreement shall have been delivered to Lender;
(E) OTHER. Such other documents as the Lender may reasonably require;
and
(F) PAYMENT OF FEES AND EXPENSES. Payment by the Borrower of fees and
expenses of Lender incurred in connection with the negotiation and documentation
of this Agreement, including, without limitation, all reasonable attorneys'
fees.
7. MISCELLANEOUS.
(a) CAPTIONS. Section captions used in this Agreement are for
convenience only, and shall not affect the construction of this Agreement.
(b) GOVERNING LAW. This Agreement shall be a contract made under and
governed by the laws of the State of Illinois, without regard to conflict of
laws principals. Whenever possible each provision of this Agreement shall be
interpreted in such manner as to be effective and valid under applicable law,
but if any provision of this Agreement shall be prohibited by or invalid under
such law, such provision shall be ineffective to the extent of such prohibition
or invalidity, without invalidating the remainder of such provision or the
remaining provisions of this Agreement.
(c) COUNTERPARTS. This Agreement may be executed in any number of
counterparts, and each such counterpart shall be deemed to be an original, but
all such counterparts shall together constituted but one and the same Agreement.
(d) SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon the
Borrower (and the Joinders attached hereto shall be binding on UC Holdings) and
on their respective successors and assigns, and shall inure to the sole benefit
of the Lender and its successors and assigns.
(e) REFERENCES. Any reference to the Credit Agreements contained in
any notice, request, certificate, or other document executed concurrently with
or after the execution
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and delivery of this Agreement shall be deemed to include this Agreement unless
the context shall otherwise requires.
(f) CONTINUED EFFECTIVENESS. The Credit Agreement as amended hereby
and each of the other Loan Documents remains in full force and effect.
(g) THE LETTER OF CREDIT. Borrower acknowledges that the Letter of
Credit constitutes Debt, as defined in the Credit Agreement, is issued pursuant
to the L/C Applications and not pursuant to the Credit Agreement, is secured by
a certificate of deposit in the face amount of $125,000, and is cross
collateralized and cross defaulted with the Credit Agreement. Accordingly,
Borrower hereby agrees that any default under the Credit Agreement (so long as
it is in force and effect), and any default under the Credit Agreement shall
constitute a default under the L/C Applications allowing Lender, among other
things, to liquidate and apply any collateral securing Borrower's obligations
under the L/C Applications (including the aforementioned certificate of deposit)
as Lender deems appropriate, subject to the provisions of the Credit Agreement.
(h) COSTS, EXPENSES AND TAXES. The Borrower agrees to pay to Lender
upon demand for all reasonable expenses, including reasonable attorneys' and
legal assistants' fees, all recording fees and charges, or other fees or charges
incurred by Lender in connection with the preparation, negotiation and execution
of this Agreement and all documents related thereto and any document required to
be furnished herewith.
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This Third Amendment to Credit Agreement is executed and delivered at
Chicago, Illinois, as of the day and year first above written.
CTN MEDIA. GROUP, INC., a Delaware
corporation
By:
----------------------------------
Title:
-------------------------------
LASALLE BANK NATIONAL ASSOCIATION,
a national banking association
By:
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Title: First Vice President
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JOINDER
This Joinder to Third Amendment to Credit Agreement dated as of May
___, 2000 between CTN Media Group, Inc. and LaSalle Bank National Association
(the "Third Amendment"). Defined terms not otherwise defined here to the
contrary shall have the respective meanings ascribed to them in the Credit
Agreement as that term is defined in the Third Amendment. The undersigned hereby
acknowledges receipt of a counterpart of the Third Amendment and acknowledges
and confirms that its obligations under that certain Negative Pledge Agreement
dated as of July 26, 1999 made by the undersigned to LaSalle Bank National
Association hereby continue unmodified and in full force and effect,
notwithstanding the execution and delivery of the Third Amendment.
WILLIS STEIN & PARTNERS L.P., a
Delaware limited partnership
By: Willis Stein & Partners, L.L.C., Its
General Partner
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JOINDER
This Joinder to Third Amendment to Credit Agreement dated as of May
___, 2000 between CTN Media Group, Inc. and LaSalle Bank National Association
(the "Third Amendment"). Defined terms not otherwise defined here to the
contrary shall have the respective meanings ascribed to them in the Credit
Agreement as that term is defined in the Third Amendment. The undersigned hereby
acknowledges receipt of a counterpart of the Third Amendment and acknowledges
and confirms that its obligations under that certain Negative Pledge Agreement
dated as of July 26, 1999 made by the undersigned to LaSalle Bank National
Association hereby continue unmodified and in full force and effect,
notwithstanding the execution and delivery of the Third Amendment.
U-C HOLDINGS, LLC., a Delaware limited
company
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