lysn_10-4






Exhibit 10.4



Execution Version










 



FIRST AMENDMENT TO LOAN AGREEMENT AND



 REAFFIRMATION


 

 


THIS
FIRST AMENDMENT TO LOAN AGREEMENT AND REAFFIRMATION (this
“Amendment”), effective as
of June 4, 2021, is between LIBERATED SYNDICATION INC., a Nevada
corporation (“Libsyn”), WEBMAYHEM, INC., a Pennsylvania
corporation (“Webmayhem”), PAIR NETWORKS, INC., a Pennsylvania
corporation (“Pair
Networks” and together with Libsyn and Webmayhem, the
“Borrowers”), ADVERTISECAST, INC., a Delaware
corporation (“AC Holdings”), and ADVERTISECAST, LLC, a Wisconsin limited
liability company (“AdvertiseCast” and together with AC
Holdings, the “AdvertiseCast Parties”), and
FIRST
COMMONWEALTH BANK, a Pennsylvania bank and trust company
(the “Bank”).

 



BACKGROUND:

 


A.            Pursuant
to that certain Loan Agreement effective as of December 27, 2017
among the Borrowers and the Bank (the “Original Loan
Agreement”), the Bank extended certain credit
facilities to the Borrowers consisting of a revolving credit loan
in the maximum principal amount of $2,000,000.00 and a term loan in
the initial principal amount of $8,000,000. Capitalized terms used
in this Amendment but not defined herein shall have the meanings
assigned to them in the Original Loan Agreement. The Original Loan
Agreement, as amended by this Amendment, is sometimes referred to
in this Amendment as the “Loan
Agreement.”

 

B. The indebtedness
and obligations of the Borrowers pursuant to the Original Loan
Agreement are secured by duly perfected, first priority security
interests in and liens on substantially all of the personal
property assets of the Borrowers, as such property and assets are
more fully identified and described in those certain Security
Agreements dated as of December 27, 2017 made by each Borrower in
favor of the Bank.

 

C. The Borrowers have
requested an amendment to the Loan Agreement, in connection with
Libsyn’s acquisition of all of the membership interests of
AdvertiseCast, which membership interests of AdvertiseCast will be
held by a newly formed subsidiary of Libsyn, AC Holdings, to add
the AdvertiseCast Parties as guarantors of the Loans, and the Bank
is willing to make the requested amendment, on the terms and
subject to the conditions set forth in this Amendment.

 

D.  NOW,
THEREFORE, in consideration of the premises and of the mutual
covenants contained in this Amendment, the receipt and sufficiency
of which are hereby acknowledged, and intending to be legally bound
hereby, the parties hereto agree as follows:

 

1. Affirmation
of Recitals. The recitals set forth above are true and
correct, are incorporated herein by reference, are being relied
upon by the Bank and are acknowledged by the Borrowers to be a
material part of this Amendment.

 

2. Amendments
to Loan Agreement. The Original Loan Agreement is hereby
amended as follows:

 

(a) New Defined Terms. Section 1.01
of the Original Loan Agreement is hereby amended by the addition of
the following defined terms:

 

(i) “AdvertiseCast
Purchase Agreement” means the Membership Interest Purchase
Agreement by and among Libsyn, AdvertiseCast, Dave Hanley and Trevr
Smithlin, as Member Representative dated March 29, 2021, as the
same may be amended, modified, supplemented or restated from time
to time, pursuant to which Libsyn is acquiring the Equity Interests
of AdvertiseCast.


 







 








 






 

(ii) “Closing
Date” means December 27, 2017.

 

(iii) “First
Amendment” means the First Amendment to Loan Agreement,
effective as of the First Amendment Closing Date, between the
Borrowers and the Bank.

 

(iv) “First
Amendment Closing Date” means June 4, 2021.

 

(v) “Loan
Party” or “Loan Parties” means, singularly or
collectively, as the context may require, the Borrowers and
Guarantors.

 

(b) Amendment to Certain
Definitions. The definitions in Section 1.01 of the Original
Loan Agreement of the defined terms set forth below are hereby
amended and restated in their entirety, as follows:

 

(i) “Borrower”
or “Borrowers” means, singularly or collectively, as
the context may require, Liberated Syndication, Inc., a Nevada
corporation, Webmayhem, Inc., a Pennsylvania corporation, Pair
Networks, Inc., a Pennsylvania corporation, and any other Person
that executes and delivers to the Bank a joinder to the Loan
Agreement on or after the date hereof, in form and substance
satisfactory to the Bank.

 

(ii) “Guarantor”
or “Guarantors” means, singularly or collectively, as
the context may require, AdvertiseCast, LLC, a Wisconsin limited
liability company, AdvertiseCast, Inc. a Delaware corporation, and
any other Person that executes and delivers to the Bank a Guaranty
Agreement on or after the date hereof.

 

(iii) “Pledge
Agreements” means, collectively, (i) the Pledge Agreement
effective as of the Closing Date made by Libsyn for the benefit of
the Bank, as amended, modified, supplemented or restated from time
to time; and (ii) the Pledge Agreement effective as of the First
Amendment Closing Date made by AC Holdings for the benefit of the
Bank, as amended, modified, supplemented or restated from time to
time.

 

(iv) “Security
Agreements” means, collectively, (i) the Security Agreements
made by the Borrowers for the benefit of the Bank dated as of the
Closing Date; (ii) the Security Agreements made by the Guarantors
for the benefit of the Bank dated as of the First Amendment Closing
Date, (iii) the Pledge Agreements; and (iv) each other agreement
securing the Obligations or granting a Lien in favor of the Bank in
respect of such Obligations, and each as amended, modified,
supplemented or restated from time to time.

 

(c) Sections 3.02,
through 3.04, 3.09 through 3.13, 3.15, 3.20 through 3.24, 5.02
through 5.08, 5.11, 5.12, 5.15, 6.01 through 6.09, 6.11 through
6.13, 6.16, 6.17, 7.01(b), 7.01(c), 7.01(e), 7.01(f), 7.01(g),
7.01(h), 7.01(k), 7.01(m) through 7.01(s), and 7.03 of the Original
Loan Agreement are hereby amended to replace the terms Borrower or
Borrowers, with Loan Party or Loan Parties as the context may
require; provided that the representations and warranties made by
each of the AdvertiseCast Parties pursuant to Sections 3.04(c),
3.09, 3.10, 3.11, 3.12, 3.20 and 3.24 of the Loan Agreement made on
and as of the date hereof are made to the knowledge of the
Borrowers based on representations and warranties made to the
Borrowers by the seller under the AdvertiseCast Purchase Agreement
and on that certain Confirmation Certificate, a copy of which has
been provided to the Bank. The Borrowers are not aware of facts or
other information inconsistent with such representation and
warranties or statements made in such certificate.


 






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(d) Section 2.04(f) is
hereby deleted and replaced with the following:

 


(f)            LIBOR
Replacement/Successor Rate. In the event that Bank
determines in its sole discretion that:

 

(i) LIBOR, or any
replacement thereof, is suspended, discontinued, not published, or
otherwise no longer available, and adequate and reasonable means do
not exist for ascertaining LIBOR,

 

(ii) LIBOR
is no longer a reliable market indicator, even if it continues to
be published, or

 

(iii) Another
market-accepted index is more suitable to reflect the applicable
adjustable-rate loan’s economic terms, considering
Bank’s underlying funding and related derivative
transactions, other market factors, and Bank’s regulatory
requirements,

 


Then,
Bank shall have the right, from time
to time, in good faith, to (1) substitute an alternative benchmark
index for LIBOR, which itself may or may not be an interim index,
and (2) adjust the Applicable Margin, as may have been previously
adjusted, to maintain the current yield on the applicable
adjustable-rate loan or make the new rate as economically neutral
as practicable, in the sole determination of Bank, and which, at a
minimum, complies with Bank's regulatory requirements. In
connection with the foregoing, Bank may also determine the day
count convention, the lookback days, and the rate reset frequency
to be used, and any other relevant methodology for calculation of
the substitute rate in a manner consistent with the foregoing. Bank
shall provide Borrowers with notice of any determination made as
set forth above and the effective date of any substitutions,
adjustments, or other changes.

 

(e) Section 2.04(g) is
hereby deleted and replaced with [Intentionally
Omitted].

 

(f) Section 3.01 of the
Original Loan Agreement is hereby amended and restated in its
entirety, as follows:

 


3.01           Organization
and Qualification; No Subsidiaries.

 


Each
Loan Party is duly organized, validly existing and in good standing
under the laws of its State of organization, and is duly qualified
or licensed to do business, and is in good standing in, all
jurisdictions in which the ownership of its properties or the
nature of its activities, or both, makes such qualification
necessary, except where the failure to be so qualified or license
could not reasonably be expected to have a Material Adverse Effect.
As of the First Amendment Closing Date, except as set forth on
Schedule 3.01: (i) neither Webmayhem nor Pair Networks has any
subsidiaries, and neither holds any Equity Interest in any other
Person; (ii) Libsyn has no subsidiaries and holds no Equity
Interest in any other Person other than Webmayhem, Pair Networks
and AC Holdings; (iii) AC Holdings has no subsidiaries and holds no
Equity Interest in any other Person other than AdvertiseCast; and
(iv) AdvertiseCast has no subsidiaries and holds no Equity Interest
in any other Person.


 






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(g) Section 3.06 of the
Original Loan Agreement is hereby amended and restated in its
entirety, as follows:

 



3.06            

Ownership and
Control.





 


Schedule 3.06 sets forth the
authorized and outstanding equity capital of each Loan Party and,
for all Loan Parties other than Libsyn a complete list of each
holder of equity securities of each Loan Party and each such
holder’s respective ownership interest in each Loan Party.
All of the issued and outstanding Equity Interests in each Loan
Party are fully paid and nonassessable. Except as set forth on
Schedule 3.06,
there are no other Equity Interests outstanding of any Loan Party,
there is no obligation of any Loan Party to issue any such Equity
Interest, and there are no other options, warrants or other rights
outstanding to purchase any Equity Interest in any Loan Party, or
any other instrument convertible into an Equity Interest in any
Loan Party. Webmayhem, Pair Networks and AC Holdings are
wholly-owned subsidiaries of Libsyn. The stock of Libsyn is
publicly-traded in the over-the-counter market.

 

(h) Section 3.07 of the
Original Loan Agreement is hereby amended and restated in its
entirety, as follows:

 



3.07            

Officers, Directors and
Business.





 


Schedule 3.07 sets forth as of
the First Amendment Closing Date (i) the names of all officers,
directors and/or managers of each Loan Party, and (ii) a
description of the business of each Loan Party as presently
conducted and as presently planned to be conducted.

 

(i) Section 5.13 of the
Original Loan Agreement is hereby amended to apply not only to the
Borrowers, but also to the AdvertiseCast Parties. If the
AdvertiseCast Parties shall not have closed all of their accounts
at other banks within six (6) months after the First Amendment
Closing Date, then the AdvertiseCast Parties shall use commercially
reasonable efforts to put in place with respect to any such
remaining account a deposit account control agreement in form and
substance reasonably satisfactory to the Bank, and such other
agreements and instruments as the Bank may reasonable request in
order to create and perfect a lien on such accounts and the amounts
on deposit therein in favor of the Bank.

 

(j) A new Section
6.04(vii) is hereby added to the Loan Agreement as
follows:

 


(vii)
Investment, capital contributions or loans to any other Loan
Party.

 

(k) Section 6.14 of the
Original Loan Agreement is amended and restated in its entirety, as
follows:

 



6.14            

Ownership and
Control.





 


The
Loan Parties shall not cause or permit, directly or indirectly, any
change in the control of the AdvertiseCast Parties, Webmayhem or
Pair Networks. For purposes of this Section (a) a change in control
of the AdvertiseCast Parties means: (i) the failure of AC Holdings
to own, directly or indirectly, all of the outstanding Equity
Interests in AdvertiseCast, or (ii) the failure of AC Holdings to
be the sole managing member of AdvertiseCast or to be able to elect
or appoint a majority of the directors or managers (or other
governing body) of AdvertiseCast; and (b) a change in control of
Webmayhem, Pair Networks or AC Holdings means: (i) the failure of
Libsyn to own, directly or indirectly, all of the outstanding
Equity Interests in such entity; or (ii) the failure of Libsyn to
be able to elect or appoint a majority of the directors or managers
(or other governing body) of such entities.

 


 



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(l) Section 8.04 of the
Original Loan Agreement is hereby amended to replace
Borrowers’ counsel and to update the address for the Bank
with the following:

 


Pietragallo,
Gordon, Alfano, Bosick & Raspanti, LLP


One
Oxford Centre


301
Grant Street, 38th Floor


Pittsburgh, PA
15219


Attn:
Lee van Egmond, Esq.


 


First
Commonwealth Bank


501
Grant Street, Suite 250


Pittsburgh, PA
15219


Attn:
Kevin Koerbel


 

(m) Amendments to Schedules.
Schedules 3.06 and 3.07 attached to the Original Loan Agreement are
hereby deleted and replaced with Schedules 3.06 and 3.07 attached
to this Amendment.

 

3. Joinder
of AdvertiseCast Parties. For purposes of the
representations and warranties set forth in Section 2(c) of this
Amendment, the AdvertiseCast Parties are joined as signatories to
this Amendment.

 

4. Consent
to Merger of AdvertiseCast Parties. The Loan Parties have
advised the Bank that, following the closing of Libsyn’s
purchase of AdvertiseCast pursuant to the terms of the
AdvertiseCast Purchase Agreement, the AdvertiseCast Parties intend
to consummate a merger (the “Merger”) pursuant to which
one of the AdvertiseCast Parties will be the surviving entity (the
“Surviving Entity”). The Bank hereby consent to the
consummation of the Merger and waives any breach of any of the
representations, warranties or covenants contained in this
Agreement that could be deemed to be violated as a result of the
Merger, subject to the following conditions:

 

(a)    No later than five (5)
Business Days prior to the intended effective date
thereof:

 




(i)

 The Loan Parties shall deliver to
the Bank true and complete copies of the articles of merger, the
plan of merger, and any amendment, modification, supplement to or
restatement of the Bylaws, Operating Agreement, Certificate of
Incorporation or Certificate of Organization, as applicable, of the
Surviving Entity that is intended to be effected in connection with
the Merger, and each such instrument shall be determined by the
Bank to be in form and substance reasonably satisfactory to the
Bank;





 




(ii)

The Loan Parties
shall have delivered to the Bank an opinion of counsel to the Loan
Parties, to the effect that (A) the Loan Documents to which the
Surviving Entity is a party remain legal, valid and binding
obligations of the Surviving Entity, enforceable against the
Surviving Entity in accordance with their respective terms, subject
to the effect of applicable bankruptcy, reorganization, insolvency,
receivership, fraudulent conveyance or transfer, moratorium and
other similar laws affecting the rights and remedies of creditors
generally, and (B) the security interest in favor of the Bank in
that portion of the Collateral of the Surviving Entity in which a
security interest was perfected by filing will remain perfected
after the Merger, to the extent a security interest in such
collateral can be perfected by filing; and





 


 



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(iii)

The Surviving
Entity, at its own cost and expense, shall cause to be promptly and
duly taken, executed, acknowledged and delivered, all such further
acts, documents and assurances as the Bank may request in order to
cause the Liens granted under the Security Agreements or any other
Loan Document to be, at all times, valid, perfected and enforceable
against the Surviving Entity and all third parties after giving
effect to the Merger. All expenses of such filings and recordings,
and refilings and rerecordings, shall be borne by the Surviving
Entity.





 

5. No
Satisfaction; Effect of Amendment. Nothing in this Amendment
shall be understood or construed to be a satisfaction or release,
in whole or in part, of any obligation of the Borrowers under any
of the Loan Documents. Except as otherwise specifically provided in
this Amendment, the Original Loan Agreement and the other Loan
Documents previously executed and delivered in connection with the
Original Loan Agreement will remain unchanged and fully enforceable
according to the original terms and conditions. The Borrowers are
bound by, and shall comply with, all of the terms and provisions
thereof, as amended or modified by this Amendment.

 

6. Reaffirmation
and Ratification by Borrowers. Borrowers hereby reaffirm and
confirm the Liens and security interests granted by them to the
Bank, and hereby acknowledge and agree that such Liens and security
interests shall continue to secure the Obligations of the Borrowers
in connection with the Loan Agreement. Without limiting the
generality of the foregoing, the Borrowers hereby acknowledge and
agree that the Liens granted by them to the Bank pursuant to the
Security Agreements shall secure the Revolving Credit Loan and the
Term Loan, as amended by this Amendment, as well as any other Loan
extended by the Bank to the Borrowers pursuant to the Loan
Agreement. Borrowers hereby reaffirm the execution and delivery of
the Security Agreements, reaffirm the Security Agreements in their
entirety, including their obligations thereunder, and acknowledge
and agree that the Security Agreements are and shall continue to
remain in full force and effect, and the Liens and security
interests granted thereunder continue in effect as security for the
obligations of the Borrowers in connection with the Loan Agreement.
As of the date hereof, Borrowers hereby certify that they have no
set-offs, claims or defenses of any kind or nature against the Bank
that would reduce any of the Borrowers’ obligations under the
Loan Agreement or any other Loan Document. Borrowers hereby release
the Bank from any and all such set-offs, claims and defenses,
whether known or unknown, that they now have or hereafter may
discover, to the extent arising from or in connection with events
occurring on or prior to the date of this Amendment. Original
Borrowers hereby reaffirm and ratify the CONFESSION OF JUDGMENT
provisions set forth in the Loan Documents and acknowledge that
such remedy is available to the Bank for the full amount of the
Loans.

 

7. Expenses
and Attorneys’ Fees. Borrowers agree to pay or cause
to be paid, and agree to save the Bank harmless against liability
for the payment of, all reasonable and documented out-of-pocket
expenses, including, but not limited to, reasonable fees and
expenses of outside counsel and paralegals for the Bank, incurred
by the Bank in connection with the preparation, execution, delivery
and performance of this Amendment.

 

8. Representations
and Warranties of Borrowers. The Borrowers hereby represent
and warrant to the Bank as follows:

 

(a) The Loan Documents
are in full force and effect and continue to constitute legal and
enforceable obligations of the Loan Parties and there are no
defenses, offsets or counterclaims of any kind or nature whatsoever
against such enforceability, including, without limitation, the
enforceability of the amounts owed by Borrowers;

 


 



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(b) To each
Borrower’s actual knowledge, the Bank is in full compliance
with all of its obligations under the Loan Documents and the Bank
has no obligation to extend or renew any loans or other financial
accommodations in favor of the Loan Parties except as expressly set
forth in the Loan Documents;

 

(c) Except as set forth
in that certain Reservation of Rights letter dated April 12, 2021,
and on Schedule 7(c) hereto, no event has occurred and is
continuing that constitutes an Event of Default, and all of Loan
Parties’ representations and warranties contained in the Loan
Documents are true, accurate and complete on and as of the date
hereof with the same force and effect as if made on and as of the
date hereof, except to the extent such representations and
warranties relate to an earlier date, in which case they shall be
true and correct as of such earlier date; and

 

(d) This Amendment
constitutes the legal, valid and binding agreement of the Borrowers
enforceable against the Borrowers in accordance with its terms,
except as such enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or other similar
laws affecting the enforcement of creditors’ rights generally
and except as such enforceability may be limited by the
availability of equitable remedies, and all consents or approvals
necessary or desirable for the Borrowers to obtain in connection
with this Amendment have been obtained.

 

9. Conditions
to Effectiveness. This Amendment shall not become effective
until each of the following conditions shall have been
satisfied:

 

(a) The AdvertiseCast
Parties shall have executed and delivered to the Bank a Security
Agreement, Guaranty Agreement and Disclosure for Confession of
Judgment, each in form and substance reasonably satisfactory to the
Bank;

 

(b) Libsyn shall have
executed and delivered to the Bank a Stock Pledge Agreement, in
form and substance reasonably satisfactory to the
Bank;

 

(c) AC Holdings shall
have executed and delivered to the Bank a Pledge Agreement and an
Issuer Control Agreement, each in form and substance reasonably
satisfactory to the Bank;

 

(d) AdvertiseCast shall
have executed and delivered to the Bank an Issuer Control Agreement
and Intellectual Property Security Agreement, each in form and
substance reasonably satisfactory to the Bank;

 

(e) The Bank shall have
received a certificate, in form and substance reasonably
satisfactory to the Bank, of an authorized officer of each Loan
Party, certifying as to: (i) resolutions of the managers, members
or directors, as the case may be, of such Loan Party authorizing
such Loan Party to enter into this Amendment and the other Loan
Documents to which it is a party, as applicable; (ii) incumbency;
and (iii) no amendments to the Certificate of Organization,
Operating Agreement, Articles of Incorporation or Bylaws, as
applicable, of such Loan Party since the Closing Date, or, in the
case of the AdvertiseCast Parties, true and correct copes of their
organizational documents. The Bank may conclusively rely on such
certification unless and until a later certificate revising a prior
certificate has been furnished to the Bank;

 

(f) Loan Parties shall
have reimbursed to the Bank, or paid directly to the Bank’s
counsel, the Bank’s legal fees and costs in connection with
the negotiation, preparation, execution and delivery of this
Amendment and the documents to be executed and delivered in
connection herewith.

 


 



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10. Post-Closing
Obligations. Within 30 days after the First Amendment
Closing Date, the Loan Parties shall: (a) deliver an opinion of
counsel to the Loan Parties, in form and substance satisfactory to
the Bank in its sole discretion; (b) deliver to the Bank evidence
that the AdvertiseCast Parties are duly qualified or licensed to do
business, and are in good standing, in all jurisdictions in which
the ownership of their properties, or the nature of their
activities, or both, make such qualification necessary; and (c) the
subsidiaries of Pair Networks identified on Schedule 3.01: (i)
Ryousha Kokusai, LLC, a Pennsylvania limited liability company; and
(ii) 66083NB, Inc., a company incorporated in New Brunswick,
Canada, shall be added as Guarantors of the Loans and shall each
have executed and delivered to the Bank such documents as the Bank
may reasonably request, including but not limited to, a Guaranty
Agreement and Security Agreement, each in form and substance
reasonably satisfactory to the Bank.

 

11. General.

 

(a) All notices,
requests, demands, directions and other communications under the
provisions of this Amendment shall be given in accordance with
Section 8.04 of the Loan Agreement, as amended by this
Amendment.

 

(b) This Amendment will
be deemed to be a contract under the Laws of the Commonwealth of
Pennsylvania and for all purposes shall be governed by and
construed and enforced in accordance with the substantive Laws, and
not the laws of conflicts, of said Commonwealth. Each Loan Party
consents to the exclusive jurisdiction and venue of the federal and
state courts located in the Commonwealth of Pennsylvania, in any
action on, relating to or mentioning this Amendment, the Notes, the
other Loan Documents, or any one or more of them.

 

(c) This Amendment
supersedes all prior understandings and agreements, whether written
or oral, between the parties relating to the transactions
contemplated to occur pursuant to this Amendment.

 

(d) This Amendment may
be executed in any number of counterparts and by the different
parties to this Amendment on separate counterparts each of which,
when so executed, will be deemed an original, but all such
counterparts will constitute but one and the same
instrument.

 

(e) This Amendment will
be binding upon and inure to the benefit of the Bank, the Loan
Parties and their respective successors and assigns, except that
the Loan Parties may not assign or transfer any of their rights
under this Amendment.

 

(f) The rights and
benefits of this Amendment and the other Loan Documents are not
intended to, and shall not, inure to the benefit of any third
party.

 

(g) Loan Parties agree
to indemnify, pay and hold the Bank and the officers, directors,
employees, agents, consultants, auditors, affiliates and attorneys
of the Bank (collectively called the “Indemnitees”),
harmless from and against any and all liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, claims,
costs, expenses and disbursements of any kind or nature whatsoever
(including the reasonable fees and disbursements of counsel for
such Indemnitees in connection with any investigative,
administrative or judicial proceeding commenced or threatened,
whether or not such Indemnitee shall be designated a party thereto)
that is imposed on, incurred by, or asserted against that
Indemnitee, in any manner relating to or arising out of this
Amendment or the other Loan Documents, the consummation of the
transactions contemplated by this Amendment, the statements
contained in the commitment letters, if any, delivered by the Bank,
the Bank’s agreement to make Loans, the use or intended use
of the proceeds of any Loan or the exercise of any right or remedy
hereunder or under any of the other Loan Documents, any error,
failure or delay in the performance of any of the Bank’s
obligations under this Amendment caused by natural disaster, fire,
war, strike, civil unrest, error or inoperability of communication
equipment or lines or any other circumstances beyond the control of
the Bank or actions taken by the Bank which were reasonably
believed by the Bank to be taken pursuant to and in compliance with
this Amendment including, but not limited to, actions taken by the
Bank to amend or cancel any funds transfer instructions or any
decision by the Bank to effect or not to effect the transfer as
provided in this Amendment, or any other such action taken by the
Bank in good faith pursuant to its responsibilities under this
Amendment (the “Indemnified Liabilities”); provided,
however, that the Loan Parties shall have no obligation to an
Indemnitee hereunder with respect to Indemnified Liabilities
arising from the fraud, gross negligence or willful misconduct of
that or another Indemnitee as finally determined by a court of
competent jurisdiction.

 


 



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(h) To the fullest
extent permitted by Law, no claim may be made by Loan Parties
against the Bank or any affiliate, director, officer, employee,
attorney or agent of the Bank for any special, incidental,
consequential or punitive damages in respect of any claim arising
from or relating to this Amendment or any other Loan Document or
any statement, course of conduct, act, omission or event occurring
in connection herewith or therewith (whether for breach of
contract, tort or any other theory of liability). Loan Parties
hereby waive, release and agree not to sue upon any claim for any
such damages, whether such claim presently exists or arises
hereafter and whether or not such claim is known or is suspected to
exist in its favor. This provision shall not limit any rights of
Loan Parties arising solely out of willful misconduct as finally
determined by a court of competent jurisdiction.

 

(i) LOAN PARTIES
EXPRESSLY, KNOWINGLY AND VOLUNTARILY WAIVE ALL BENEFIT AND
ADVANTAGE OF ANY RIGHT TO A TRIAL BY JURY, AND WILL NOT AT ANY TIME
INSIST UPON, OR PLEAD OR IN ANY MANNER WHATSOEVER CLAIM OR TAKE THE
BENEFIT OR ADVANTAGE OF A TRIAL BY JURY IN ANY ACTION ARISING IN
CONNECTION WITH THIS AMENDMENT OR ANY OF THE OTHER LOAN
DOCUMENTS.

 


[Signature
page follows]

 



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IN
WITNESS WHEREOF, the parties hereto, intending to be legally bound,
have executed and delivered this Amendment as of the date first set
forth above.

 


LIBERATED
SYNDICATION, INC.


 


By:
/s/ Laurie
Sims


Name:
Laurie Sims


Title:
President


 


 


WEBMAYHEM,
INC.


 


By:
/s/ Laurie
Sims


Name:
Laurie Sims


Title:
President


 


 


PAIR
NETWORKS, INC.


 




By: /s/ Laurie
Sims


Name:
Laurie Sims


Title:
President


 


 


ADVERTISECAST,
INC.


 



By:
/s/ Laurie
Sims


Name:
Laurie Sims


Title:
President








ADVERTISECAST,
LLC


 


By:
AdvertiseCast, Inc., its Manager


 


By:
/s/ Laurie
Sims


Name:
Laurie Sims


Title:
President


 


 


FIRST
COMMONWEALTH BANK


 




By:
/s/ Kevin
Koerbel


Name:
Kevin Koerbel


Title:Vice-President


 


 [First Amendment to
Loan Agreement and Reaffirmation Signature
Page]