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EXHIBIT 10.43
FOURTH AMENDMENT TO CREDIT AGREEMENT
THIS FOURTH AMENDMENT TO CREDIT AGREEMENT (this "Amendment") is dated as
of April 23, 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 and the Third Amendment to Credit Agreement (the "Third Amendment")
dated as of March 31, 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 acquisition in two stages (collectively, the "Xxxxxx
Acquisitions") of the following broadcast television stations;
WDPX-TV, serving the Springfield and Dayton, Ohio markets,
WPXG-TV, serving the Suring and Green Bay, Wisconsin markets, and
WPXU-TV, serving the Decatur and Champaign, Illinois markets,
from Xxxxxx Communications Corporation and its operating subsidiaries
(collectively, "PCC"), pursuant to (a) the acquisition of all assets
other than FCC Licenses and FAA authorizations for an initial payment of
$32,000,000, (b) the execution and delivery of time brokerage
agreements, concurrently with such initial payment, pending receipt of
the necessary FCC approvals for the transfer of such FCC Licenses ("FCC
Transfer Approvals") and (c) payment of $8,000,000 as the balance of the
aggregate purchase price for the acquired Stations upon receipt of the
FCC Transfer Approvals, all consistent with the terms and conditions of
a certain letter of intent dated as of March 22, 1999 (the "Xxxxxx
Letter of Intent");
(2) the execution and delivery by a PCC subsidiary and ACME
Television of Tennessee, LLC of a Joint Sales Agreement with respect to
WPXK-TV, serving the Jellico and Knoxville, Tennessee markets (the
"Xxxxxx JSA") ; and
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(3) arrangement by the Borrower of a secondary programming
distribution agreement between The WB Television Network ("WB") and D P
Media of Battle Creek, Inc. ("D P Media") providing that WZPX-TV,
serving the Grand Rapids and Battle Creek, Michigan markets, will
broadcast programming distributed by WB, which will be provided by a
designated Subsidiary of the Borrower, all consistent with the terms and
conditions of a certain letter of intent dated as of March 22, 1999 (the
"D P Media Letter of Intent").
C. Under the D P Media Letter of Intent, Acme Holdings has agreed to
enter into, or cause to be executed, (1) a Joint Sales Agreement with D P Media
and ACME Television of Michigan, LLC, a Subsidiary of Borrower relating to
WZPX-TV and (2) an option agreement (the "D P Option Agreement") providing a
right by D P Media to require Acme Television of Michigan, LLC to purchase the
assets and properties constituting WZPX-TV at any time prior to April, 2004 and
a right on the part of Acme Television of Michigan, LLC to purchase such assets
if D P Media elects to sell WZPX-TV, at an aggregate purchase price of
$30,000,000, in each case also to be exercised in two stages (the "D P Media
Acquisition"), which D P Option Agreement will not be binding upon the Borrower
or any of its Subsidiaries; all consistent with the terms and conditions of the
D P Media Letter of Intent.
D. The Borrower wishes to cause ACME Television of Michigan, LLC, to
enter into an assignment agreement with Acme Holdings providing for the
assignment to the Borrower of all of the rights and obligations of Acme Holdings
under the D P JSA (as hereinafter defined), (the "D P JSA Assignment").
E. The Borrower wishes to obtain the consent of the Required Lenders to
the transactions described in Recitals B and D (the "Transactions") and to
certain related financial covenant amendments. 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, and effective on the date of the First
Closing under the Xxxxxx Acquisition Agreement (as hereinafter defined), the
Lenders hereby agree with the Borrower that the Credit Agreement shall be
amended as follows:
A. MINIMUM EBITDA.
(1) SECTION 5.01 of the Credit Agreement is hereby amended by
inserting the letter and characters "(a)" at the beginning of the first
sentence thereof and by adding at the end of such designated SECTION
5.01(a) the following:
For purposes of calculating EBITDA for the periods of four (4) fiscal
quarters ending on June 30, 1999 and September 30, 1999, Net Income
shall not include the net income or
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loss of, or attributable to, WDPX-TV, WPXG-TV, WPXU-TV or WZPX-TV the
Xxxxxx Stations or the D P Station.
(2) SECTION 5.01 is further amended by adding a new subsection
(b) thereof reading in its entirety as follows:
(b) Not permit EBITDA allocable to WDPX-TV, WPXG-TV, WPXU-TV and
WZPX-TV to be less than (i) ($1,100,000) in the fiscal quarter ended
June 30, 1999 or (ii) ($1,400,000) in the fiscal quarter ended September
30, 1999.
B. MAXIMUM SECURED DEBT LEVERAGE.
(1) SECTION 5.03 of the Credit Agreement is hereby amended by
deleting the table set forth therein and substituting therefor the
following:
MAXIMUM RATIO OF SECURED
QUARTERLY DATE(S) DEBT TO ADJUSTED EBITDA
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March 31, 1999 3.50:1.00
June 30, 1999 and September 30, 1999 5.25:1.00
December 31, 1999 3.50:1.00
March 31, 2000 and thereafter 3.00:1.00
(2) SECTION 5.03 of the Credit Agreement is hereby amended adding
at the end thereof the following:
For purposes of calculating Adjusted EBITDA for the periods of four (4)
fiscal quarters ending on June 30, 1999 and September 30, 1999, Net
Income shall not include the net income or loss of WDPX-TV, WPXG-TV,
WPXU-TV or WZPX-TV.
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. CONSENTS TO TRANSACTIONS.
A. KASY AND RELATED CONSENTS AMENDED. The consents set forth in SECTION
II of the Third Amendment permitting the consummation of the KASY Acquisition
(as a "Permitted Acquisition"), the KWBQ Sale and the KWBQ LMA are hereby
amended to provide that the Borrower has withdrawn its request to consummate
such transactions and that such transactions will not be effected until consent
is again sought and obtained from the Lenders. The Borrower hereby represents
and warrants that the maximum liability of the Borrower and its Subsidiaries
under the agreements entered into to date with respect to such transactions, in
the event the Borrower fails to close thereunder, is $500,000, which is
currently on deposit with the escrow agent designated by the parties. The
Borrower's counsel shall provide an opinion in connection with this Fourth
Amendment and the Xxxxxx Acquisitions providing such additional legal
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assurances as the Agent shall reasonably request with respect to the
Borrower's liability in the event the Borrower fails to close
thereunder.
B. CONSENTS TO TRANSACTIONS. Subject to the conditions set forth in
SECTION II(C) below, the Required Lenders hereby consent to the following:
(1) the execution and delivery of an Asset Purchase Agreement
dated as of the date hereof by and among (a) Xxxxxx Communications
Corporation, Xxxxxx Communications License Company, LLC, Xxxxxx
Communications of Green Bay-14, Inc. , Xxxxxx Communications of
Dayton-26, Inc., Xxxxxx Xxxxxx License, Inc., Xxxxxx Communications of
Decatur -23, Inc. and Xxxxxx Decatur License, Inc. and (b) Acme
Television of Ohio, LLC, Acme Television Licenses of Ohio, LLC, Acme
Television of Wisconsin, LLC, Acme Television Licenses of Wisconsin,
LLC, Acme Television of Illinois, LLC, and Acme Television Licenses of
Illinois, LLC, (all Subsidiaries of the Borrower formed for the purpose
of acquiring the Stations referred to therein) (the "Xxxxxx Acquisition
Agreement"), providing for the Xxxxxx Acquisitions (each of which shall
constitute a "Permitted Acquisition" for all purposes of the Credit
Agreement);
(2) in connection with the Xxxxxx Acquisitions and as required
under the Xxxxxx Acquisition Agreement, the execution and delivery of
(a) each of the Time Brokerage Agreements referred to therein (each of
which constitutes a "Permitted LMA" since it is being executed in
anticipation of a Permitted Acquisition), in the form called for therein
(the "Xxxxxx LMAs") and (b) each of the Secondary Affiliation Agreements
(as defined in the Xxxxxx Acquisition Agreement) to be entered into
after the "Second Closing" thereunder;
(3) the execution and delivery of the Xxxxxx JSA;
(4) the execution and delivery of the Joint Sales Agreement dated
as of the date hereof by and between D P Media of Battle Creek, Inc. and
Acme Television of Michigan, LLC (the "D P JSA"), together with the D P
JSA Assignment as described in the Recitals to this Amendment; and
(5) the consummation of such Transactions substantially in
accordance with the foregoing agreements.
The Borrower has not submitted a request for the consent of the Required
Lenders to the D P Acquisition, nor is any such consent contemplated at this
time.
C. CONDITIONS TO CONSENTS. The foregoing consents are subject to the
following express conditions:
(1) The Xxxxxx LMAs, the Xxxxxx Acquisition Agreement, the Xxxxxx
JSA, the D P JSA and all agreements and instruments related thereto or
executed from time to time thereunder (collectively, the "Xxxxxx and D P
Media Transaction Documents") shall be collaterally assigned to the
Agent and the Lenders (with full rights to reassign as
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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 under SECTION 2.01 of the Credit Agreement.
(2) The rights and obligations of ACME Holdings under the D P JSA
shall be freely assignable by Acme Holdings to Borrower.
(3) The aggregate monthly LMA payments due and payable under the
Xxxxxx LMAs shall not exceed the amounts set forth in the Xxxxxx Letter
of Intent.
(4) 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 (it being understood that:
(a) certain real estate collateral requirements may be
deferred in the Agent's discretion for full satisfaction on or
before May 22, 1999,
(b) the updated Projections submitted in connection
therewith may not reflect full future compliance with financial
covenants (but no waiver of such compliance shall be implied
therefrom) and
(c) the Companies shall be permitted to consummate the
Xxxxxx Acquisitions and the D P Acquisition upon receipt of the
applicable FCC Transfer Approvals and prior to so-called "Final
Orders" if required under the Xxxxxx Acquisition Agreement.
(5) 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 (with all
attachments) required to be delivered prior to or concurrently with the
closing of such Permitted Acquisition (see SCHEDULE 11.02(a) to the
Credit Agreement and EXHIBIT A thereto), and (ii) cause the acquiring
Subsidiaries to enter into all Security Documents required under SECTION
2.01 of the Credit Agreement.
(6) Prior to the First Closing under (and as defined in) the
Xxxxxx Acquisition Agreement, the Borrower shall have received at least
$7,000,000 in additional cash equity contributions, the proceeds of
which shall be applied to finance a portion of the Xxxxxx Acquisitions,
and shall have obtained a commitment for an additional $8,000,000 in
cash equity to finance the balance of the purchase price, which
commitment shall be evidenced by documents satisfactory in from and
substance to the Agent.
(7) Prior to the Second Closing under (and as defined in) the
Xxxxxx Acquisition Agreement, the Borrower shall have received at least
$8,000,000 in additional cash equity contributions, the proceeds of
which shall be applied to finance a portion of the Xxxxxx Acquisitions.
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(8) 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.
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, including
each of the Subsidiaries party to the Xxxxxx Acquisition Documents, 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, (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.
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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; and
(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, 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 Xxxxx
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Name: Xxxxxx Xxxxx
Title:
CANADIAN IMPERIAL BANK OF
COMMERCE, AS AGENT
By /s/ Xxxxxx Xxxx
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Xxxxxx Xxxx, Executive Director
CIBC Xxxxxxxxxxx Corp., as Agent
CIBC INC.
By /s/ Xxxxxx Xxxx
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Xxxxxx Xxxx, Executive Director
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
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Xxxxxxxxx Xxxx, Vice President
(signatures continued)
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BANK OF MONTREAL, CHICAGO BRANCH
By /s/ C.T. Young
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Xxxxxxxxxxx X. Xxxxx, 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 April 23, 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 Xxxxx
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Duly authorized signatory as to all
