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 FISHER 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 Moore & Van Allen 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:
	 	 FISHER BROADCASTING COMPANY,
 a Washington corporation

			
	 	 	 By:
	 	     /s/ David D. Hillard


	 	 	 Name:
	 	 David D. Hillard

	 	 	 Title:
	 	 Assistant Secretary

		
	 GUARANTORS:
	 	 FISHER RADIO REGIONAL GROUP INC.,
 a Washington corporation

		
	 	 	 FISHER BROADCASTING-PORTLAND RADIO, L.L.C.,
 a Delaware limited liability company

		
	 	 	 FISHER BROADCASTING-SEATTLE RADIO, L.L.C.,
 a Delaware limited liability company

		
	 	 	 FISHER BROADCASTING-PORTLAND TV, L.L.C.,

	 	 	 a Delaware limited liability company

		
	 	 	 FISHER BROADCASTING-SEATTLE TV, L.L.C.,

	 	 	 a Delaware limited liability company

		
	 	 	 FISHER BROADCASTING-S.E. IDAHO TV, L.L.C.,

	 	 	 a Delaware limited liability company

		
	 	 	 FISHER BROADCASTING-IDAHO TV, L.L.C.,

	 	 	 a Delaware limited liability company

		
	 	 	 FISHER BROADCASTING-GEORGIA, L.L.C.,

	 	 	 a Delaware limited liability company

		
	 	 	 FISHER BROADCASTING-OREGON TV, L.L.C.,

	 	 	 a Delaware limited liability company

		
	 	 	 FISHER BROADCASTING-WASHINGTON TV, L.L.C.,
 a Delaware limited liability company

			
	 	 	 By:
	 	     /s/ David D. Hillard


	 	 	 Name:
	 	 David D. Hillard

	 	 	 Title:
	 	 Assistant Secretary










					
	 ADMINISTRATIVE AGENT:
	 	 	 	 
		
	 	 	 WACHOVIA BANK, NATIONAL ASSOCIATION
 as Administrative Agent and as a Lender

			
	 	 	 By:
	 	     /s/ Franklin M. Wessinger


	 	 	 Name:
	 	 Franklin M. Wessinger

	 	 	 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/ Mark N. Crawford


	 	 	 Name:
	 	 Mark N. Crawford

	 	 	 Title:
	 	 Senior Vice President

		
	 	 	 BANK OF MONTREAL

			
	 	 	 By:
	 	     /s/ Jan Asaul


	 	 	 Name:
	 	 Jan Asual

	 	 	 Title:
	 	 M.D.

		
	 	 	 THE BANK OF NEW YORK

			
	 	 	 By:
	 	     /s/ Stephen M. Nettler


	 	 	 Name:
	 	 Stephen M. Nettler

	 	 	 Title:
	 	 Vice President










					
	 	 	 BLACK DIAMOND CLO 2001-LTD.

			
	 	 	 By:
	 	     /s/ Alan Corkish


	 	 	 Name:
	 	 Alan Corkish

	 	 	 Title:
	 	 Director

		
	 	 	 TRS 1 LLC

			
	 	 	 By:
	 	     /s/ Deborah O’Keeffe


	 	 	 Name:
	 	 Deborah O’Keeffe

	 	 	 Title:
	 	 Vice President

		
	 	 	BLACK DIAMOND INTERNATIONAL FUNDING, LTD.
			
	 	 	 By:
	 	     /s/ Alan Corkish


	 	 	 Name:
	 	 Alan Corkish

	 	 	 Title:
	 	 Director

		
	 	 	 STANWICH LOAN FUNDING LLC

			
	 	 	 By:
	 	     /s/ Kelly W. Warnement


	 	 	 Name:
	 	 Kelly W. Warnement

	 	 	 Title:
	 	 Vice President

		
	 	 	 SIERRA CLO 1

			
	 	 	 By:
	 	     /s/ John M. Casparian


	 	 	 Name:
	 	 John M. Casparian

	 	 	 Title:
	 	 Chief Operating Officer
 Centre Pacific, Manager

		
	 	 	 BRYN MAWR CLO, LTD.

	 	 	 By: Deerfield Capital Management LLC as its
 Collateral Manager

			
	 	 	 By:
	 	     /s/ Scott Morrison


	 	 	 Name:
	 	 Scott Morrison

	 	 	 Title:
	 	 Vice President










					
	 	 	 OLYMPIC FUNDING TRUST, SERIES 1999-1

			
	 	 	 By:
	 	     Kelly W. Warnement


	 	 	 Name:
	 	 Kelly W. Warnement

	 	 	 Title:
	 	 Authorized Agent

		
	 	 	 ROSEMONT CLO, LTD.

	 	 	By: Deerfield Capital Management LLC as its Collateral Manager
			
	 	 	 By:
	 	     /s/ Scott Morrison


	 	 	 Name:
	 	 Scott Morrison

	 	 	 Title:
	 	 Vice President

		
	 	 	 APEX (IDM) CDO I, LTD.

	 	 	By: David L. Babson & Company Inc. as Collateral Manager
			
	 	 	 By:
	 	     /s/ Adrienne Musgnug


	 	 	 Name:
	 	 Adrienne Musgnug

	 	 	 Title:
	 	 Managing Director

		
	 	 	 FLAGSHIP CLO 2001 - 1

	 	 	 By: Flagship Capital Management, Inc.

			
	 	 	 By:
	 	     /s/ Eric S. Meyer


	 	 	 Name:
	 	 Eric S. Meyer

	 	 	 Title:
	 	 Director

		
	 	 	 FLAGSHIP CLO 2001 – 1

	 	 	 By: Flagship Capital Management, Inc.

			
	 	 	 By:
	 	     /s/ Eric S. Meyer


	 	 	 Name:
	 	 Eric S. Meyer

	 	 	 Title:
	 	 Director

		
	 	 	 GENERAL ELECTRIC CAPITAL CORPORATION

			
	 	 	 By:
	 	     /s/ Todd Anderson


	 	 	 Name:
	 	 Todd Anderson

	 	 	 Title:
	 	 Assistant Vice President










					
	 	 	 ING PRIME RATE TRUST

	 	 	By: Aeltus Investment Management, Inc. as its investment manager
			
	 	 	 By:
	 	     /s/ Mohamed Basma


	 	 	 Name:
	 	 Mohamed Basma

	 	 	 Title:
	 	 Vice President

		
	 	 	 ING SENIOR INCOME FUND

	 	 	By: Aeltus Investment Management, Inc. as its investment manager
			
	 	 	 By:
	 	     /s/ Mohamed Basma


	 	 	 Name:
	 	 Mohamed Basma

	 	 	 Title:
	 	 Vice President

		
	 	 	 PILGRIM CLO 1999 – 1 LTD.

	 	 	By: ING Unvestments, LLC as its investment manager
			
	 	 	 By:
	 	     /s/ Mohamed Basma


	 	 	 Name:
	 	 Mohamed Basma

	 	 	 Title:
	 	 Vice President

		
	 	 	 NATIONAL CITY BANK

			
	 	 	 By:
	 	     /s/ Timothy J. Ambrose


	 	 	 Name:
	 	 Timothy J. Ambrose

	 	 	 Title:
	 	 Vice President

		
	 	 	 HARBOURVIEW CLO IV, LTD.

			
	 	 	 By:
	 	     /s/ Lisa Chaffee


	 	 	 Name:
	 	 Lisa Chaffee

	 	 	 Title:
	 	 Manager

		
	 	 	 HARBOURVIEW CLO V, LTD.

			
	 	 	 By:
	 	     /s/ Lisa Chaffee


	 	 	 Name:
	 	 Lisa Chaffee

	 	 	 Title:
	 	 Manager










					
	 	 	 OPPENHEIMER SENIOR FLOATING RATE FUND

			
	 	 	 By:
	 	     /s/ Lisa Chaffee


	 	 	 Name:
	 	 Lisa Chaffee

	 	 	 Title:
	 	 Manager

		
	 	 	 WASHINGTON MUTUAL BANK

			
	 	 	 By:
	 	     /s/ Vance Gledhill


	 	 	 Name:
	 	 Vance Gledhill

	 	 	 Title:
	 	 Vice President