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EXHIBIT 10.26
SIXTH AMENDMENT TO CREDIT AGREEMENT
THIS SIXTH AMENDMENT TO CREDIT AGREEMENT (this "Amendment") is dated as
of December 31, 1999 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 BANK OF AMERICA, N.A. (successor to
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
the Lenders 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, as
previously amended by Amendment No. 1 and Amendment No. 2, each dated as of June
30, 1998, the Third Amendment to Credit Agreement dated as of March 31, 1999,
the Fourth Amendment to Credit Agreement dated as of April 23, 1999 and the
Fifth Amendment to Credit Agreement dated as of September 2, 1999 (as so
amended, 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 the Required Lenders enter into
this Amendment to amend certain provisions of the Credit Agreement and to
provide their consent to certain transactions described herein. Subject to
certain terms and conditions set forth herein, the Required 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:
I. AMENDMENTS TO CREDIT AGREEMENT. Subject to the satisfaction of each of
the conditions set forth in SECTION V, the Lenders hereby agree with the
Borrower that the Credit Agreement shall be amended as follows:
A. MINIMUM EBITDA. SECTION 5.01(a) of the Credit Agreement is hereby
amended by (1) deleting the paragraph reference "(a)" at the beginning thereof
and (2) deleting the last sentence thereof. In addition, SECTION 5.01(b) is
hereby deleted.
B. DEFINITION OF EBITDA. The definition of "EBITDA" in ARTICLE IX of
the Credit Agreement is deleted in its entirety and the following substituted
therefor:
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
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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.
Notwithstanding the foregoing,
(i) for each period of four (4) consecutive fiscal quarters ending
December 31, 1999 and March 31, 2000, EBITDA shall be computed by also restoring
to Net Income the lesser of (x) the aggregate net losses attributable to
WDPX-TV, WPXG-TV, WPXU-TV and WZPX-TV or (y) $2,000,000; and
(ii) for any period which includes the fiscal quarter ending September
30, 1999, EBITDA shall be computed by also restoring to Net Income $3,000,000 in
expenses incurred to make bonus payments to managers and equityholders in
connection with, and from the contributed proceeds of, the initial public
offering effected by the Borrower's parent.
C. 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.
II. CONSENT TO SALE/LEASEBACK. The Lenders hereby consent to the sale by
ACME Television of New Mexico, LLC ("ACME New Mexico") of its studio facility
for KASY-TV and KWBQ-TV located at 8341 Washington, N.E., Albuquerque, New
Mexico (the "Studio Site") to Xxxxxxx Brothers Properties III, L.L.C. and to the
release by the Agent of the existing mortgage thereon in favor of the Agent, on
behalf of the Lenders, provided that, concurrently with such sale, and as a
condition thereto:
A. ACME New Mexico shall enter into a written lease of the Studio
Site on terms and conditions reasonably satisfactory to the Agent (the "Studio
Site Lease") and shall record the Studio Site Lease (or an appropriate
Memorandum of Lease with respect thereto) in the records of the appropriate
registry of deeds in New Mexico;
B. ACME New Mexico shall comply in full with the requirements of
SECTIONS 2.01(a)(iv) and 6.09(a) of the Credit Agreement with respect to the
Studio Site Lease, including the delivery and recording of a leasehold mortgage,
landlord consent and other related documents as provided therein and as required
by the Agent (collectively, the "Studio Site Documents");
C. ACME New Mexico shall provide to the Agent, on behalf of the
Lenders, an opinion of local New Mexico counsel, addressed to the Agent and the
Lenders, with respect to the Studio Site Documents, which shall be reasonably
satisfactory in form and substance to the Agent.
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III. 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 Amendment, and all obligations of the Borrower
under the Credit Agreement, as amended, shall be 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.
IV. 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 Amendment 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 Amendment 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 and its Subsidiaries
from that disclosed in the financial statements most recently furnished to the
Lenders. No Default has occurred and is continuing.
C. Neither the Borrower nor any Affiliate of the Borrower 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 Amendment or the Studio Site
Documents contemplated hereby (the "Documents").
D. This Amendment and the other Documents constitute, or will when
executed and delivered 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 V.
V. CONDITIONS. The willingness of the Agent and the Lenders to amend the
Credit Agreement and grant the foregoing consents, is subject to the following
conditions precedent and subsequent (in addition to the conditions set forth or
referred to in SECTION II above):
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. This Amendment; and
2. True and complete copies of any required managers',
members', stockholders' and/or directors' consents and/or resolutions,
authorizing the execution and delivery of this Amendment and the other
Documents contemplated hereby, certified by the Manager or Secretary of
the appropriate Company, if needed.
3. Such other supporting documents, opinions 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. All legal matters incident to the transactions hereby
contemplated shall be reasonably satisfactory to the Agent's counsel.
VI. 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
Amendment and the other Documents.
B. This Amendment shall be governed by and construed in accordance
with the laws of the State of New York.
C. This Amendment 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
Amendment. Delivery of an executed signature page of this Amendment by facsimile
transmission shall be effective as an in-hand delivery of an original executed
counterpart hereof.
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IN WITNESS WHEREOF, the Agent, the Borrower and the Lenders have caused
this Amendment 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/ Xxxxxx X. Xxxxx
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Xxxxxx X. Xxxxx, Executive Vice President
CANADIAN IMPERIAL BANK OF
COMMERCE, AS AGENT
By: /s/ Xxxxxx Xxxx
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Xxxxxx Xxxx, Executive Director
CIBC World Markets, as Agent
CIBC INC.
By: /s/ Xxxxxx Xxxx
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Xxxxxx Xxxx, Executive Director
CIBC World Markets, as Agent
BANK OF AMERICA, N.A.
By: /s/ Xxxxx Xxxxxxx
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Xxxxx Xxxxxxx, Vice President
UNION BANK OF CALIFORNIA, N.A.
By: /s/ Xxxxx Xxxxx
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Xxxxx Xxxxx, Vice President
BANK OF MONTREAL, CHICAGO BRANCH
By: /s/ W.T, Calder
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X.X. Xxxxxx, Managing Director
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JOINDER BY GUARANTORS
The undersigned hereby jointly and severally join in the execution of
the foregoing Sixth Amendment to Credit Agreement dated as of December 31, 1999
(the "Amendment") to which this Joinder is attached to confirm their respective
consents to all of the transactions contemplated by the Amendment 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 of Oregon, LLC
ACME Television Licenses of Oregon, LLC
ACME Television of Tennessee, LLC
ACME Television Licenses of Tennessee, LLC
ACME Television of Utah, LLC
ACME Television Licenses of Utah, LLC
ACME Television of New Mexico, LLC
ACME Television Licenses of New Mexico, LLC
ACME Subsidiary Holdings III, LLC
ACME Television of Missouri, Inc.
ACME Television Licenses of Missouri, LLC
ACME Television of Florida, LLC
ACME Television Licenses of Florida, LLC
By: /s/ Xxxxxx X. Xxxxx
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Duly authorized signatory as to all
