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EXHIBIT 10.43A
FIFTH AMENDMENT TO CREDIT AGREEMENT
THIS FIFTH AMENDMENT TO CREDIT AGREEMENT (this "Amendment") is dated as of
September __, 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 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 1, 1999 and the Fourth
Amendment to Credit Agreement dated as of April 23, 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 wishes to enter into various agreements providing for the
following:
(1) the purchase from Ramar Communications II, Ltd. ("Ramar") for
$25,400,000 (with an initial deposit of $1,500,000) of KASY-TV (the "KASY
Acquisition") licensed to Albuquerque, New Mexico ("KASY"), which is
currently subject to an LMA in favor of Xxx Enterprises (the "Xxx LMA")
and broadcasts as a UPN affiliate;
(2) the sale to Ramar, in a related transaction, of KWBQ-TV (the
"KWBQ Sale") licensed to Santa Fe, New Mexico ("KWBQ") for $100,000,
simultaneously with the grant by Ramar to Montecito Broadcasting
Corporation (a corporation wholly owned by Xxxx Xxxxx, Xxx Xxxxx and Xxxxx
Xxxxxxx) ("Montecito") of an option to repurchase KWBQ for $100,000 (the
"KWBQ Buy-Back Option"), which option will be assigned to the Borrower;
and
(3) an LMA between Ramar and the Borrower pursuant to which the
Borrower will program KWBQ (the "KWBQ LMA") and will pay Ramar an annual
fee of $370,000 for five years, with payments to be accelerated if the
KWBQ Buy-Back Option is exercised.
C. The Borrower wishes to obtain the consent of the Required Lenders to
the foregoing transactions (the "Transactions") and to certain waivers related
to Permitted
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Investments. Subject to certain terms and conditions set forth herein, the Agent
and 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. WAIVER OF LIMITATION FOR PERMITTED INVESTMENTS WITH RESPECT TO THE KASY
ACQUISITION. Subject to the satisfaction of each of the conditions set forth in
SECTION V, the Lenders hereby agree with the Borrower as follows:
A. PERMITTED INVESTMENTS. Solely with respect to the KASY Acquisition,
Subparagraph (o) of the definition of "Permitted Investments" shall be waived
and the Borrower shall be permitted to make a deposit to the Seller of KASY in
the maximum amount of $1,500,000. In all other respects, Subparagraph (o) of the
definition of Permitted Investments shall remain in full force and effect.
B. 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. CONSENTS TO TRANSACTIONS.
A. CONSENTS. Subject to the conditions set forth in SECTION II(B) below,
the Required Lenders hereby consent to (1) the execution and delivery of binding
agreements providing for the KASY Acquisition (which shall constitute a
"Permitted Acquisition" for all purposes of the Credit Agreement), the KWBQ Sale
and the KWBQ LMA (which shall constitute a "Permitted LMA" under the Credit
Agreement), as described in the Recitals to this Amendment and otherwise in a
manner reasonably satisfactory to the Required Lenders, and (2) the consummation
of such Transactions substantially in accordance with such agreements. In
addition, the Required Lenders hereby waive any requirement that the Notes be
repaid or the Commitments reduced from the net proceeds of the KWBQ Sale.
B. CONDITIONS TO CONSENTS. The foregoing consents are subject to the
following express conditions:
(1) The KWBQ Buy-Back Option shall be assigned to the Borrower and
collaterally assigned by the Borrower to the Agent and the Lenders (with
full rights to reassign as necessary upon assignment of the Obligations or
in connection with a foreclosure) to secure the Obligations, with the
written consent of all other parties thereto in form and substance
satisfactory to the Agent, as required by SECTION 2.01 of the Credit
Agreement.
(2) The Acquisition Documents relating to the KASY Acquisition shall
be collaterally assigned by the Borrower to the Agent and the Lenders
(with full rights to reassign as necessary upon assignment of the
Obligation or in connection with a
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foreclosure) to secure the Obligations, with the written consent of all
other parties thereto, as required under SECTION 2.01 of the Credit
Agreement.
(3) The Borrower and its Subsidiaries shall satisfy all of the
conditions to Permitted Acquisitions set forth in the definition of such
term, after the first paragraph thereof in a timely manner unless
otherwise permitted by the Agent. Without limitation of the foregoing, the
Borrower shall (i) deliver to the Agent a fully completed Acquisition
Compliance Checklist together with the Officer's Compliance Certificate
required to be delivered prior to or concurrently with the closing of such
Permitted Acquisition (see SCHEDULE 11.02(A) and SCHEDULE 1 thereto), and
(ii) cause the acquiring Subsidiaries to enter into all Security Documents
required under SECTION 2.01 of the Credit Agreement.
(4) The Borrower shall have received sufficient additional cash
equity from its initial public offering, or from other equity
contributions on terms acceptable to the Required Lenders, the proceeds of
which shall be applied to finance the balance of the KASY Acquisition.
(5) Any Loans requested in connection with the foregoing shall be
subject to the conditions applicable thereto set forth in ARTICLE II of
the Credit Agreement.
(6) The KASY Acquisition shall occur no later than December 31,
1999.
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.
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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 other Loan Documents contemplated
hereby, if any (the "Documents").
D. This Amendment 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 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:
1. On or before the date hereof:
(a) This Amendment.
(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 Amendment 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. 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.
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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
agreement. 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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Name: Xxxxxx X. Xxxxx
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Title: Executive Vice President
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CANADIAN IMPERIAL BANK OF
COMMERCE, AS AGENT
By /s/ [ILLEGIBLE SIGNATURE]
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[ILLEGIBLE] , Executive Director
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CIBC World Markets Corp., as Agent
CIBC INC.
By /s/ [ILLEGIBLE SIGNATURE]
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[ILLEGIBLE] , Executive Director
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CIBC Xxxxxxxxxxx Corp., as Agent
NATIONSBANK, N.A.
By /s/ XXXXX XXXXXXX
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Xxxxx Xxxxxxx, Vice President
UNION BANK OF CALIFORNIA, N.A.
By /s/ [ILLEGIBLE SIGNATURE]
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[ILLEGIBLE], Vice President
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(signatures continued)
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BANK OF MONTREAL, CHICAGO BRANCH
By /s/ X.X. XXXXXX
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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 Fourth Amendment to Credit Agreement dated as of September __, 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
ACME Television of Illinois, LLC
ACME Television Licenses of Illinois, LLC
ACME Television of Ohio, LLC
ACME Television Licenses of Ohio, LLC
ACME Television of Wisconsin, LLC
ACME Television Licenses of Wisconsin, LLC
By:
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Duly authorized signatory as to all
