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EXECUTION COPY
EXHIBIT 10.40
AMENDMENT NO. 1
THIS AMENDMENT NO. 1 is dated as of June 30, 1998 by and among ACME
TELEVISION, LLC, a Delaware limited liability company (the "Borrower"); CIBC
INC., UNION BANK OF CALIFORNIA, N.A., BANK OF MONTREAL, CHICAGO BRANCH, and
NATIONSBANK, N.A. as Lenders under the Credit Agreement referred to below (the
"Lenders"); and CANADIAN IMPERIAL BANK OF COMMERCE, as Agent (the "Agent") for
CIBC and such other financial institutions as are or as become Lenders under,
and as defined in the Credit Agreement referred to below.
RECITALS
A. The Borrower, the Lenders and the Agent are parties to a First
Amended and Restated Credit Agreement dated as of December 2, 1997 (the "Credit
Agreement"). Capitalized terms used herein without definition have the meanings
assigned to them in the Credit Agreement, unless otherwise provided.
B. The Borrower has requested that certain amendments be made to the
Credit Agreement.
C. Subject to certain terms and conditions set forth herein, the Agent
and the Lenders are willing to agree to such request.
NOW THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto agree as
follows:
1. AMENDMENTS TO CREDIT AGREEMENT.
Subject to the satisfaction of each of the conditions set forth in
SECTION 6, the Lenders hereby agree with the Borrower that the Credit Agreement
shall be amended as follows:
A. RECITALS: The first sentence of clause C of the Recitals is deleted
in its entirety and substituted with the following to reflect correct facts
relating to the Senior Notes:
"On September 24, 1997, the Borrower and ACME Finance Corporation, a
Delaware corporation wholly-owned by the Borrower ("ACME Finance" and,
together with the Borrower, the "Issuers"), offered (the "Offering") as
their joint and several obligation $175,000,000 in 10.875% Senior
Discount Notes due 2004, Series A which are issued pursuant to an
Indenture dated as of September 30, 1997 between the Issuers, the
Borrower's Subsidiaries (as guarantors) and Wilmington Trust Company, as
trustee (the "Indenture"), and were exchanged for $175,000,000 in
10.875% Senior Discount Notes due 2004, Series B pursuant to an Exchange
Offer effected by ACME Television, LLC and ACME Finance Corporation on
February 11, 1998 (the "Senior Notes")."
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B. SECTION 6.05(a). ANNUAL FINANCIAL STATEMENTS AND REPORTS. Section
6.05(a) of the Credit Agreement is amended by inserting immediately after the
words "Within one hundred twenty (120) days after the end of fiscal year 1997
and within ninety (90) days after the end of each subsequent fiscal year, the
consolidated (or, if applicable, combined) balance sheets and statements of
income, equity and cash flows of the Borrower and each Holding Company," the
following:
"Operating Company and License Company, together with consolidating
balance sheets and income statements for each Holding Company and each
Operating Company and License Company owned directly by the Borrower,"
C. SECTION 6.05(b). QUARTERLY FINANCIAL STATEMENTS AND REPORTS. With
respect to each fiscal quarter ending on or after December 31, 1997 for which
the Borrower is required to file Form 10-Q reports with the SEC, if the Borrower
timely files the same with the SEC (as required by applicable law) and timely
provides to the Agent copies thereof as required by Section 6.05(j) of the
Credit Agreement, unless the Agent requests otherwise in writing, the Borrower
shall not be required to furnish to the Agent the quarterly financial statements
required under Section 6.05(b) of the Credit Agreement, provided, however, the
Borrower shall nevertheless be required to furnish the quarterly schedule of
Capital Expenditures otherwise required thereunder. In addition, the Borrower
and each Holding Company (and if a Holding Company does not exist for any
Station, each Operating Company and License Company related to such Station)
agree to provide to the Agent (with copies for each Lender) within 45 days after
the end of each month, consolidated balance sheets and statements of income for
the Borrower and each Holding Company, together with supporting schedules,
prepared in accordance with GAAP (except for the absence of notes) and certified
by an authorized representative of the Borrower, such balance sheets to be as
the end of such month and such income statements to be for the month then ended
and for the period from the beginning of the then current fiscal year to the end
of such month (subject to normal audit and year-end adjustments), with a
comparison of month to month actual results to results for the comparable period
of the preceding fiscal year and projected results set forth in the Budget for
such period for each Station on the air.
D. SECTION 6.11. PERMITTED RESTRUCTURING; ACQUISITION RESTRUCTURINGS.
(i) Clause (b) of Section 6.11 of the Credit Agreement is amended to
read in its entirety as follows:
"(b) Within forty-five (45) days following the consummation of
the transactions contemplated by the ▇▇▇▇▇▇▇ Member Agreement,
cause (i) the FCC Licenses held by ▇▇▇▇▇▇▇ Broadcasting (which
shall either be for KUWB-TV if the ▇▇▇▇▇▇▇ Asset Exchange
Agreement has been consummated, or for KUPX-TV if the ▇▇▇▇▇▇▇
Asset Exchange has not been consummated) to be transferred from
▇▇▇▇▇▇▇ Broadcasting to ACME Utah, (ii) the assets used in
operating such Station to be transferred from ▇▇▇▇▇▇▇
Broadcasting to ACME Television of Utah, LLC, and (iii) the
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concurrent dissolution of ▇▇▇▇▇▇▇ Broadcasting, and provide to
the Agent satisfactory evidence thereof; provided that, in the
event the transactions contemplated by the ▇▇▇▇▇▇▇ Asset Exchange
Agreement have not occurred before or simultaneously with the
consummation of the transactions contemplated by the ▇▇▇▇▇▇▇
Member Agreement, the requirements hereunder shall be suspended
pending consummation of the transactions contemplated by the
▇▇▇▇▇▇▇ Asset Exchange Agreement, but in any event suspended for
no longer than one hundred twenty (120) days following the
consummation of the transactions under the ▇▇▇▇▇▇▇ Member
Agreement."
(ii) Clause (c)(iii) of Section 6.11 of the Credit Agreement is amended
by deleting the date "December 15, 1997" therein and substituting in its place
the date "January 15, 1998".
E. ARTICLE VIII. DEFAULTS/NO NEED OF HOLDING COMPANY.
(i) Clause (m)(iii) of Article VIII of the Credit Agreement is amended
by adding at the end thereof the following:
"of each of the Operating Companies and License Companies for
each Station where no Holding Company exists for such Station or"
(ii) Clause (m)(iv) of Article VIII of the Credit Agreement is amended
by revising the parenthetical phrase at the end thereof and adding a proviso
thereafter as follows:
"(in each case except for de minimus membership interests in
limited liability companies held by other Companies, excluding
ACME Finance, as specified in SCHEDULE 4.19, for purposes of
avoiding being treated for tax purposes as a single member
limited liability company); provided, however, for all
acquisitions closing on or after June 5, 1998, the Borrower shall
not be required to form Holding Companies in connection therewith
but shall cause Operating Companies which are wholly-owned direct
Subsidiaries of Borrower to own all Station assets (other than
FCC Licenses) and License Companies which are wholly-owned direct
Subsidiaries of the Borrower to hold FCC Licenses relating to
such Stations, and, in such cases, the Borrower shall be in
default hereunder if it shall cease to own and control, directly
or indirectly, all of the issued and outstanding equity interests
of each of such License Companies and Operating Companies (in
each case except for de minimus membership interests in limited
liability companies held by other Companies, excluding ACME
Finance, as specified in SCHEDULE 4.19, for purposes of avoiding
being treated for tax purposes as a single member limited
liability companies);"
F. ARTICLE XI. DEFINITIONS.
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(i) The definition of "ACME Subsidiary III" in Article XI of the Credit
Agreement is amended to add "and ACME Television Licenses of Missouri, LLC",
ACME Television of Florida, LLC and ACME Television Licenses of Florida, LLC at
the end thereof. In addition, the structural chart attached to SCHEDULE 4.19
(Capitalization) of the Credit Agreement is hereby amended and restated to read
in its entirety as Exhibit C attached hereto and made a part hereof.
(ii) The definition of "Adjusted EBITDA" in Article XI of the Credit
Agreement is deleted in its entirety and substituted with the following:
"ADJUSTED EBITDA. For any period, EBITDA for such period;
adjusted during any such period during which the Borrower or its
Subsidiaries acquired or disposed of any Station or other
property (including, for purposes hereof, acquisitions of cash
flow accomplished through LMAs permitted under clause (a) of the
definition of "Permitted LMA" set forth below) other than in the
ordinary course, as permitted under this Agreement, by (a)
excluding therefrom the portion thereof attributable to any
Station or other property sold or disposed of by any Company
other than in the ordinary course of business during such period
as if such Station or other property were not owned at any time
by the Companies during such period, and (b) including therein
the portion thereof attributable to any Station or other property
(by Permitted Acquisition or Permitted LMA) acquired by any
Company other than in the ordinary course of business during such
period as if such Station or property were owned by the Companies
at all times during such period, such portion to include pro
forma adjustments for any net cost and expense reductions
relating to such Station specified in the related Schedule of
Cost Reductions provided prior to the consummation of such
Acquisition or under SECTION 3.01(l), as applicable, provided
that the Required Lenders shall have consented to such
adjustments in writing. For purposes of this definition, the
portion of EBITDA attributable to any Station or other property
for any period shall be determined in a manner consistent in all
relevant respects with the method used to determine EBITDA, but
on a non-consolidated basis. The determination of EBITDA of any
Station shall account for only those items included in the
definition of EBITDA that are directly attributable to such
Station and the operation thereof and shall not include, for any
period prior to the acquisition thereof by any Company thereof,
any corporate overhead or similar charges of the prior owner of
such Station."
(iii) The definition of "Cash Interest Expense" in Article IX of the
Credit Agreement is deleted in its entirety and substituted with the following:
"CASH INTEREST EXPENSE. For any period Interest Expense for such
period which is payable, or currently paid, in cash, plus to the
extent added back to Net Income in the determination of EBITDA,
LMA fees payable or currently paid for such period for each
Station under an Acquisition Agreement (as originally executed)
to be purchased within 12 months after the date such Acquisition
Agreement was entered into with respect to such Station."
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(iv) The definition of "EBITDA" in Article IX of the Credit Agreement is
deleted in its entirety and substituted with the following:
"EBITDA. For any period, Net Income for such period plus, to the
extent deducted in the determination of such Net Income and not
restored in accordance with the definition of such term, (a)
Interest Expense, (b) depreciation, (c) amortization, (d) taxes
in respect of income and profits expensed during such period, (e)
the recognition of expenses related to the amortization of
program license and rental fees, (f) LMA fees for each Station
under contract to be purchased within 12-months after the date
the Acquisition Agreement was entered into with respect to such
Station (up to an aggregate of $300,000 for all Stations in any
consecutive 12-month period) and (g) other non-cash expenses; in
each case, for such period and determined on a consolidated
basis, after eliminating intercompany items, in accordance with
GAAP, minus Programming Payments made during such period, but
excluding therefrom any payments made in respect of restructured
programming liabilities in connection with the KPLR Acquisition,
but not in excess of those listed on SCHEDULE 11.01."
(v) The definition of "License Companies" in Article XI of the Credit
Agreement is deleted in its entirety and substituted with the following:
"LICENSE COMPANIES. Collectively, the wholly-owned Subsidiaries
of each of the Holding Companies or of the Borrower (in each case
except for de minimus membership interests held by another Person
for the sole purpose of avoiding being treated for tax purposes
as a single member limited liability company), formed for the
sole purpose of holding one or more FCC Licenses."
(vi) The definition of "Operating Companies" in Article XI of the Credit
Agreement is deleted in its entirety and substituted with the following:
"OPERATING COMPANIES. Collectively, the wholly-owned Subsidiaries
of each of the Holding Companies or of the Borrower (in each
case, except for de minimus membership interests held by another
Person for the sole purpose of avoiding being treated for tax
purposes as a single member limited liability company), formed
for the sole purpose of owning all assets of and operating a
Station."
(vii) The first introductory paragraph to the definition of "Permitted
Acquisition" is amended to read as follows:
"PERMITTED ACQUISITION. The acquisition by the Borrower, or any
Operating Company and License Company (in each case owned
directly by the Borrower), whether by way of the purchase of
assets or stock, by merger or consolidation or otherwise, of
substantially all of the assets of or ownership interests in a
television
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broadcast property (each, an "Acquisition"), which Acquisition
shall have either (1) been approved in writing by the Required
Lenders in their sole and absolute discretion prior to the
execution of the Acquisition Agreement relating thereto or (2)
been one of no more than two acquisitions consummated in any
consecutive 12-month period pursuant to this clause (2), with (A)
the total Purchase Price for either acquisition consummated
pursuant to this clause (2) in such 12-month period not exceeding
$15,000,000, (B) the Purchase Price of all acquisitions
consummated pursuant to this clause (2) in such period not
exceeding $20,000,000 in the aggregate, and (C) each Station
acquired in such period pursuant to this clause (2) having not
greater than ($500,000) in negative EBITDA for the most recent
consecutive 12-month period prior to the consummation of such
acquisition for which financial statements are available. Without
in any way limiting the discretion of the Required Lenders if
their consent is required or other criteria set forth above, all
Permitted Acquisitions (whether pursuant to clause (1) or (2)
above) also will be subject to the fulfillment of the following
conditions:"
(viii) Subparagraph (o) of the definition of "Permitted Investments" is
amended to read as follows:
"(o) Deposits made pursuant to letters of intent (if refundable)
or legally binding agreements (if non-refundable) to acquire
television broadcast station licenses and related assets (or
capital stock of Persons owning such assets), which acquisitions
when consummated will constitute "Permitted Acquisitions"
hereunder, in an amount not to exceed five percent (5%) of the
Purchase Price; provided that the Station to be acquired will be
operated and its assets owned by an Operating Company and its FCC
license held by a License Company upon consummation of the
contemplated Acquisition."
(ix) The definition of "Permitted Restructurings" is deleted in its
entirety and substituted with the following:
"PERMITTED RESTRUCTURINGS. (a) The formation of new Delaware
limited liability companies ("the Delaware Entities") with names
and functions identical to those of the respective existing
Oregon Subsidiaries and Tennessee Subsidiaries and the merger of
each existing Oregon Subsidiary and each existing Tennessee
Subsidiary into the new Delaware Entity of the same name, in each
case with such Delaware Entity being the surviving company, and
(b) the merger of any existing Holding Company into the Borrower
in each case with the Borrower being the surviving company."
(x) A new definition of "Purchase Price" in Article XI of the Credit
Agreement is added to read as follows:
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"PURCHASE PRICE. Shall mean with respect to any acquisition, an
amount equal to the sum of (i) the aggregate consideration,
whether cash, property or securities paid or delivered and to be
paid or delivered by any Company in connection with such
acquisition, plus (ii) the aggregate amount of liabilities of the
acquired business (net of current assets of the acquired
business) that would be reflected on a balance sheet (if such
were to be prepared) of the Companies after giving affect to such
acquisition."
(xi) The definition of "Utah Acquisition" in Article XI of the Credit
Agreement is deleted in its entirety and substituted with the following:
"UTAH ACQUISITION. The acquisition of KUWB Assets pursuant to, and as
defined in, the Asset Exchange Agreement by and among ▇▇▇▇▇▇ Salt Lake
City License, Inc., ▇▇▇▇▇▇ Communications of Salt Lake City-30, Inc. and
▇▇▇▇▇▇▇ Broadcasting of Salt Lake City, L.L.C., dated as of April 20,
1998 (as originally executed, the "▇▇▇▇▇▇▇ Asset Exchange Agreement"),
such acquisition to occur in exchange for certain of the assets of
▇▇▇▇▇▇▇ Broadcasting of Salt Lake City, L.L.C. ("▇▇▇▇▇▇▇ Broadcasting"),
which holds a license from the FCC for Station KUPX-TV (formerly
KZAR-TV, Channel 16), licensed to Salt Lake City, Utah. Pursuant to the
Membership Contribution Agreement dated as of August 22, 1997 by and
among ▇▇▇▇▇▇▇ Broadcasting, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ and
ACME Television Holdings of Utah, LLC (as originally executed, the
"▇▇▇▇▇▇▇ Member Agreement"), ACME Television Licenses of Utah, LLC
("ACME Utah"), as assignee of ACME Television Holdings, L.L.C., has
obtained a forty-nine percent (49%) membership interest in ▇▇▇▇▇▇▇
Broadcasting, and exercised its Option, as defined in the Option
Agreement referred to in the foregoing Membership Contribution
Agreement, providing for the transfer to ACME Utah of the remaining
fifty-one percent (51%) in membership interests in ▇▇▇▇▇▇▇ Broadcasting,
in the first quarter of 1999."
G. SCHEDULE 6.05. Exhibit A to Schedule 6.05 (Compliance Certificate) is
hereby deleted in its entirety and substituted with Exhibit A to Schedule 6.05
attached hereto as Exhibit A.
H. SCHEDULE 11.02(a): Schedule 11.02(a) of the Credit Agreement is
amended by appending Exhibit B attached hereto ("Acquisition Compliance
Checklist") to Schedule 11.02(a).
2. NO FURTHER AMENDMENTS.
Except as specifically amended or waived hereby, the text of the Credit
Agreement and all other Loan Documents shall remain unchanged and in full force
and effect.
3. REFERENCES IN SECURITY DOCUMENTS; CONFIRMATION OF SECURITY.
All references to the "Credit Agreement" in all Security Documents, and
in any other Loan Documents shall, from and after the date hereof, refer to the
Credit Agreement, as amended by this Agreement, and all obligations of the
Borrower under the Credit Agreement, as amended, shall be
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secured by and be entitled to the benefits of said Security Documents and such
other Loan Documents. All Security Documents heretofore executed by the Borrower
and its Subsidiaries shall remain in full force and effect and such Security
Documents, as amended hereby, are hereby ratified and affirmed.
4. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE BORROWER.
The Borrower hereby represents and warrants to, and covenants and agrees
with, the Lenders that:
A. The execution and delivery of this Agreement have been duly
authorized by all requisite corporate action on the part of the Borrower.
B. The representations and warranties contained in the Credit Agreement
and the other Loan Documents are true and correct in all material respects on
and as of the date of this Agreement as though made at and as of such date. No
material adverse change has occurred in the assets, liabilities, financial
condition, business or prospects of the Borrower from that disclosed in the
financial statements most recently furnished to the Lenders. No Event of
Default, or condition or event which would, with notice or the lapse of time or
both, result in an Event of Default, has occurred and is continuing.
C. Neither the Borrower nor any Affiliate is required to obtain any
consent, approval or authorization from, or to file any declaration or statement
with, any governmental instrumentality or other agency or any other person or
entity in connection with or as a condition to the execution, delivery or
performance of this Agreement or the other Documents.
D. This Agreement and the other Documents constitute the legal, valid
and binding obligations of the Borrower and its Affiliates enforceable against
them, jointly and severally, in accordance with their respective terms, subject
to bankruptcy, insolvency, reorganization, moratorium and similar laws affecting
the rights and remedies of creditors generally or the application of principles
of equity, whether in any action at law or proceeding in equity, and subject to
the availability of the remedy of specific performance or of any other equitable
remedy or relief to enforce any right thereunder.
E. The Borrower will satisfy all of the conditions set forth in SECTION
5.
5. CONDITIONS.
The willingness of the Agent and the Lenders to amend the Credit
Agreement, is subject to the following conditions precedent and subsequent:
A. The Borrower shall have executed and delivered to the Agent (or shall
have caused to be executed and delivered to the Agent by the appropriate
persons) the following:
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1. On or before the date hereof:
(a) This Agreement.
(b) True and complete copies of any required managers', members',
stockholders' and/or directors' consents and/or resolutions,
authorizing the execution and delivery of this Agreement and the
other Documents contemplated hereby, certified by the Manager or
Secretary of the appropriate Company, if needed.
2. Such other supporting documents and certificates as the Agent or
its counsel may reasonably request, within the time period(s)
reasonably designated by the Agent or its counsel.
B. The Borrower shall have provided to the Agent and the Lenders
opinions of the Borrower's counsel in form and substance satisfactory to the
Agent with respect to this Agreement (delivered as of the date hereof).
C. All legal matters incident to the transactions hereby contemplated
shall be reasonably satisfactory to the Agent's counsel.
D. Payment by the Borrower of all outstanding fees due to ▇▇▇▇▇▇▇ &
▇▇▇▇▇▇, LLP.
6. MISCELLANEOUS.
A. As provided in the Credit Agreement, the Borrower agrees to reimburse
the Agent upon demand for all reasonable fees and disbursements of counsel to
the Agent incurred in connection with the preparation of this Agreement and the
other Documents.
B. This Agreement shall be governed by and construed in accordance with
the laws of the State of New York.
C. This Agreement may be executed by the parties hereto in several
counterparts hereof and by the different parties hereto on separate counterparts
hereof, all of which counterparts shall together constitute one and the same
agreement. Delivery of an executed signature page of this Agreement by facsimile
transmission shall be effective as an in hand delivery of an original executed
counterpart hereof.
*THE NEXT PAGES ARE THE SIGNATURE PAGES*
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EXECUTION COPY
IN WITNESS WHEREOF, the Agent, the Borrower and the Lenders have caused
this Agreement to be duly executed as a sealed instrument by their duly
authorized representatives, all as of the day and year first above written.
ACME TELEVISION, LLC
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Exec. V.P.
CANADIAN IMPERIAL BANK OF
COMMERCE, AS AGENT
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇
-------------------------------------
▇▇▇▇▇▇ ▇.▇▇▇▇▇
Authorized Signatory
CIBC INC.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇
-------------------------------------
▇▇▇▇▇▇ ▇.▇▇▇▇▇
Authorized Signatory
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NATIONSBANK, N.A.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------------
▇▇▇▇ ▇▇▇▇▇▇▇, Vice President
UNION BANK OF CALIFORNIA, N.A.
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
-------------------------------------
▇▇▇▇▇▇▇▇▇ ▇▇▇▇, Vice President
BANK OF MONTREAL, CHICAGO BRANCH
By: /s/ ▇.▇.▇▇▇▇▇▇
-------------------------------------
▇▇▇ ▇▇▇▇▇▇, Director
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JOINDER BY GUARANTORS
The undersigned hereby jointly and severally join in the execution of the
foregoing First Amendment No. 1 dated as of June __, 1998 (the "Agreement") to
which this Joinder is attached to confirm their respective consents to all of
the transactions contemplated by the Agreement and all agreements and
instruments executed and delivered in connection therewith and hereby jointly
and severally reaffirm and ratify their respective Guarantees and all agreements
securing such Guarantees, all of which shall in all respects remain in full
force and effect and shall continue to guarantee any and all indebtedness,
obligations and liabilities of the Borrower to the Agent and the Lenders,
whether now existing or hereafter arising, on the same terms and conditions as
are set forth in their respective Guarantees.
ACME Television Holdings of Oregon, LLC
ACME Television of Oregon, LLC
ACME Television Licenses of Oregon, LLC
ACME Television Holdings of Tennessee, LLC
ACME Television of Tennessee, LLC
ACME Television Licenses of Tennessee, LLC
ACME Television Holdings of Utah, LLC
ACME Television of Utah, LLC
ACME Television Licenses of Utah, LLC
ACME Television Holdings of New Mexico, LLC
ACME Television of New Mexico, LLC
ACME Television Licenses of New Mexico, LLC
ACME Subsidiary Holdings III, LLC
ACME Television Holdings of Missouri, Inc.
ACME Television of Missouri, Inc.
ACME Television Licenses of Missouri, LLC
ACME Television of Florida, LLC
ACME Television Licenses of Florida, LLC
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇
------------------------------------
Duly authorized signatory as to all
The following Exhibits have been intentionally omitted by the Registrant
List of Exhibits
Exhibit A Financial Exhibits
Exhibit B Officers Certificate
Exhibit C Capitalization
A copy of any omitted Exhibit will be provided to the Securities and Exchange
Commission upon request.