FIRST AMENDMENT TO
LLC AGREEMENT OF
ACME TELEVISION HOLDINGS, LLC
This First Amendment is made as of September 30, 1997 by ACME Television
Holdings, LLC (the "Company"), the Management Members, the Seller Member, the
Class A Founder Member, the Class B Founder Members and the Investor Members,
each as listed on SCHEDULE A hereto, for the purpose of amending the LLC
Agreement of the Company dated as of June 17, 1997, (the "LLC Agreement"). All
capitalized terms used herein and not defined shall have the respective meanings
ascribed to them in the LLC Agreement.
WHEREAS, the parties hereto desire to amend the LLC Agreement to, among
other things, increase the number of Membership Units authorized for issuance,
admit new Members to the Company and change the composition and the voting
rights of the Board of Advisors of the Company;
WHEREAS, Section 11.06 of the LLC Agreement provides that amendments to
the LLC Agreement may be made with the consent of the holders of at least 60% of
the Class B Founder Units; and
WHEREAS, the undersigned holders of all of the Class B Founder Units
desire to amend the LLC Agreement pursuant to this First Amendment.
NOW, THEREFORE, the parties hereto agree as follows:
1. AMENDMENTS.
(a) Article 1 of the LLC Agreement is hereby amended to add the
following defined terms:
"St. Louis Acquisition" shall mean the transactions contemplated
by that certain Stock Purchase Agreement among the Company, Koplar
Communications, Inc. and its stockholders pursuant to which the Company or a
subsidiary formed for the purpose has agreed to acquire for $146.0 million all
of the outstanding capital stock of Koplar Communications, Inc. upon the terms
and conditions set forth therein, and the Time Brokerage Agreement and Escrow
Agreement, each dated September 8, 1997 among the Company, Koplar
Communications, Inc. and its stockholders.
"Salt Lake City Acquisition" shall mean the transactions
contemplated by that certain agreement among the Company and the members of
▇▇▇▇▇▇▇ Broadcasting of Salt Lake City, L.L.C., pursuant to which the Company or
a subsidiary formed for the purpose has agreed to acquire for $14.0 million all
of the ownership interest in ▇▇▇▇▇▇▇ Broadcasting of Salt Lake City, L.L.C.
"Media Enterprise" shall mean any Person that, directly or
indirectly, owns, controls, or operates a broadcast radio or television station,
cable or wireless cable television system, daily newspaper or any communications
facility operated pursuant to a license granted by the FCC.
(b) Subparagraph (d) of Section 3.02 of the LLC Agreement is amended
and restated to read as follows:
"FOUNDER UNITS. The Company hereby authorizes for issuance
1,475.83 Founder Units, each of which shall represent a Capital
Contribution of $1,000 and have a Preferential Return Amount of
$1,500. 942.5 of such Founder Units shall be designated Class A
Founder Units and 533.33 of such Founder Units shall be
designated Class B Founder Units. As of the date hereof, the
Company shall have issued all of the Class A Founder Units to the
Class A Founder Members, as set forth on SCHEDULE A hereto, and
all of the Class B Founder Units to the Class B Founder Members,
as set forth on SCHEDULE A hereto. Except for the voting and
consensual rights applicable to the Class B Founder Units as
expressly provided herein, the holders of each class of Founder
Units shall have the identical rights and preferences under this
Agreement."
(c) Subparagraph (b) of Section 3.03 of the LLC Agreement is hereby
amended and restated to read as follows:
"Notwithstanding anything herein which may be construed to the
contrary and so long as no Voting Event has occurred that has
not been waived in writing, the holders of the Management Carry
Units shall have the sole right to elect and remove the members
of the Board of Advisors. The size of the Board of Advisors
shall be set at three (3) members who shall initially be ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇ and ▇▇▇▇ ▇▇▇▇▇ (the "Management Members");
provided, however, that upon the consummation of the St. Louis
Acquisition the Board of Advisors may be increased to four (4)
members and the vacancy created thereby shall be filled by an
individual appointed by ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ or his assigns
(together with the Management Members, the "Initial Advisors").
Upon the consummation of the Salt Lake City Acquisition the
Board of Advisors may be further increased by one member and the
vacancy created thereby shall be filled by an individual
appointed by ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ or his assigns. No later than
December 17, 1997 the size of the Board of Advisors shall be
increased and two additional individuals (the "Outside
Advisors") shall be elected by the holders of the Management
Carry Units to the Board of Advisors who are unaffiliated with
the Management Members and who are reasonably acceptable to both
(i) the holders of a majority in interest of the Management Carry
Units and (ii) the holders of at least 60% in interest of the
Class B Founder Units. So long as no
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Voting Event has occurred that has not been waived in writing,
at each meeting of the Board of Advisors, each Initial Advisor,
regardless of the number of members of the Board of Advisors as
of the date of such meeting or the number of members of the
Board of Advisors in attendance at such meeting, shall be
entitled to two (2) votes on each matter to be voted on at such
meeting and each other member of the Board of Advisors shall be
entitled to one (1) vote on each matter to be voted on at such
meeting.
(d) Subparagraph (c) of Section 3.03 of the LLC Agreement is hereby
amended to add the following to the beginning of the first sentence in
place of the first word of such sentence:
"Notwithstanding anything to the contrary in subparagraph (b)
herein and so..."
(e) The following new section is hereby added to the LLC Agreement:
3.12 MEMBER INSULATION.
(a) For so long as, and only during periods from time to time in
which the Company shall directly or indirectly hold (or otherwise be
attributed with) an ownership or other interest in a Media Enterprise
that is "attributed" to the Company under the FCC Rules relating to the
particular FCC service in which the Media Enterprise operates, no
provision of this Agreement shall be construed to permit any Member
(other than an Excluded Member (as hereinafter defined)), or any person
or entity that is a director, officer, partner, employee, or 5% or
greater shareholder or other owner of a Member (an "INSULATED MEMBER
AFFILIATE"), to do any of the following:
(i) act as an employee of the Company if such Members
or Member Affiliate's functions, directly or indirectly, relate
to such Media Enterprise;
(ii) serve, in any material capacity, as an independent
contractor or agent of the Partnership with respect to such Media
Enterprise;
(iii) communicate with the Media Enterprise on matters
pertaining to the day-to-day operations of such Media Enterprise;
(iv) vote to admit any additional Member to the Company;
(v) vote to amend or modify this section of the LLC
Agreement;
(vi) perform any services for the Company materially
relating to such Media Enterprise, with the exception of making
loans to, or acting as a surety for, such Media Enterprise or the
Partnership; or
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(vii) become actively involved in the management or
operation of such Media Enterprise.
(b) Notwithstanding any other provision of this LLC Agreement to
the contrary: (i) a Member that would otherwise be subject to the
restrictions set forth in Section 3.12(a) may elect to be treated as an
excluded member (an "Excluded Member") for purposes of this Section 3.12
by giving notice thereof in writing to the other Members and (ii)
nothing in this Section 3.12 shall be deemed to prevent the Class B
Founder Members or any other Members from exercising any of their rights
specified under this LLC Agreement.
(f) Section 4.03 of the LLC Agreement is hereby amended to revise the
first sentence of such section to read as follows:
"All actions to be taken by the Board of Advisors
of the Company shall be taken by vote or written consent of a
majority of the votes held by Members of the Board of Advisors
then in office."
(g) Subparagraph (b) of Section 6.04 of the LLC Agreement is hereby
amended and restated to read as follows:
"Holders of Investor Units, Seller Units and Class B Founder
Units may Transfer such Investor Units, Seller Units and Class B
Founder Units to any other Investor Member, Seller Member or
Class B Founder Member or to a partner or Affiliate of such
Investor Member, Seller Member or Class B Founder Member or to
any other investment fund or other entity for which such Investor
Member, Seller Member or Class B Founder Member and/or one or
more partners, managers, advisers or Affiliates thereof, directly
or indirectly through one or more intermediaries, serve as
general partner or manager or in a like capacity."
(h) SCHEDULE A to the LLC Agreement is hereby amended and restated as
attached hereto.
2. EFFECT. Except as amended hereby, the LLC Agreement shall remain in
full force and effect in accordance with its terms. By signing this First
Amendment to the LLC Agreement each signatory shall become a party to the LLC
Agreement, and shall be subject to all provisions of the LLC Agreement
3. GOVERNING LAW. This Amendment and the rights and obligations of the
parties hereunder shall be governed by and construed in accordance with the laws
of the State of Delaware.
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4. COUNTERPARTS. This Amendment may be executed in any number of
counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument.
[Remainder of page intentionally left blank]
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IN WITNESS WHEREOF, the parties have executed this Amendment as of the
date first above written.
ALTA ACME, INC.
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
BY:___________________________________________
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: President
CEA ACME, INC.
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
BY:____________________________________________
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: President
BANCBOSTON VENTURES INC.
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
BY:____________________________________________
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
ACME TELEVISION HOLDINGS, LLC
/S/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
BY:____________________________________________
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: President & COO
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/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
___________________________________________
▇▇▇▇▇ ▇▇▇▇▇▇▇
/s/ ▇▇▇▇ ▇▇▇▇▇
___________________________________________
▇▇▇▇ ▇▇▇▇▇
/s/ ▇▇▇ ▇▇▇▇▇
___________________________________________
▇▇▇ ▇▇▇▇▇
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CHANNEL 32 INCORPORATED
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
BY:____________________________________________
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Executive Vice President
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TCW SHARED OPPORTUNITY FUND II, L.P.
By TCW Investment Management Company,
as General Partner
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
BY:____________________________________________
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Managing Director
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
BY:____________________________________________
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Senior Vice President
TCW LEVERAGED INCOME TRUST, L.P.
By TCW Investment Management Company,
its Investment Manager
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
BY:____________________________________________
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Managing Director
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
BY:____________________________________________
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Senior Vice President
TCW Advisers (Bermuda), Ltd., as General
Partner
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
BY:____________________________________________
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Group Managing Director
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LINC ACME, Corporation
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
BY:____________________________________________
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Managing Director
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
BY:____________________________________________
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Senior Vice President
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POST TOTAL RETURN FUND, L.P.
By Post Advisory Group, Inc.,
as General Partner
/s/ ▇▇▇▇▇▇▇▇ ▇. Post
BY:____________________________________________
Name: ▇▇▇▇▇▇▇▇ ▇. Post
Title: President
CANYON PARTNERS
The Canyon Value Realization Fund
(Cayman), Ltd.
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
BY:____________________________________________
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Director
CANYON PARTNERS
The Value Realization Fund, L.P.
Canpartners Investments III, L.P.
BY:____________________________________________
` Canyon Capital Management, L.P.
BY:____________________________________________
Canpartners Incorporated
BY:____________________________________________
/s/ ▇▇▇▇▇▇▇▇ ▇. Julls
BY:____________________________________________
Name: ▇▇▇▇▇▇▇▇ ▇. Julls
Title: Vice President
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CONTINENTAL CASUALTY COMPANY
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
BY:____________________________________________
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President
CONTINENTAL CASUALTY COMPANY,
on behalf of its Designated High Yield
Subaccount
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
BY:____________________________________________
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President
THE LINCOLN NATIONAL LIFE INSURANCE COMPANY
By its Attorney-in-fact
Lincoln Investment Management
/s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
BY:____________________________________________
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Vice President
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CAPITAL RESEARCH AND MANAGEMENT COMPANY,
on behalf of American High-Income Trust
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
BY:____________________________________________
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title:
CAPITAL RESEARCH AND MANAGEMENT COMPANY,
on behalf of American Variable Insurance
Series - High Yield Bond Fund
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
BY:____________________________________________
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title:
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ACME TELEVISION HOLDINGS, LLC
SCHEDULE A
INVESTOR UNITS NO. OF UNITS
BancBoston Ventures Inc 8,491.67
TCW Shared Opportunity Fund II, L.P. 1,590.88
Capital Research and Management Company 1,087.53
Continental Casualty Company 1,685.62
Lincoln National Life Insurance Company 543.74
Canyon Partners 163.11
Post Advisory Group, Inc. 54.41
CIBC Wood Gundy 4,593.75
SELLER UNITS
Channel 32 Incorporated 4,400
MANAGEMENT CAPITAL UNITS
▇▇▇▇▇ 160
▇▇▇▇▇ 150
▇▇▇▇▇▇▇ 290
CLASS A FOUNDER UNITS
ACME Capital Partners 942.5
CLASS B FOUNDER UNITS
Alta ACME, Inc. 133.34
CEA ACME, Inc. 133.34
BancBoston Ventures Inc. 133.34
TCW Shared Opportunity Fund II, L.P. 33.34
LINC ACME, Corporation 100.00
MANAGEMENT CARRY UNITS
▇▇▇▇▇ 30
▇▇▇▇▇ 30
▇▇▇▇▇▇▇ 40