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EXHIBIT 10.27
SEVENTH AMENDMENT TO CREDIT AGREEMENT
THIS SEVENTH AMENDMENT TO CREDIT AGREEMENT (this "Amendment") is dated
as of December 29, 2000 by and among ACME TELEVISION, LLC, a Delaware limited
liability company (the "Borrower"); the financial institutions which are now, or
in accordance with ARTICLE XIII of the Credit Agreement (hereinafter described)
are hereafter, parties to the Credit Agreement by execution of the signature
pages thereto or otherwise (collectively, the "Lenders" and each individually, a
"Lender"); CANADIAN IMPERIAL BANK OF COMMERCE ("CIBC"), as administrative agent
for the Lenders (in such capacity as Agent, together with its successors and
assigns in such capacity, the "Agent"); and BANKERS TRUST COMPANY, as
syndication agent for the Lenders (together with its successors and assigns in
such capacity, the "Syndication Agent").
RECITALS
A. The Borrower, certain "Lenders" named therein, including CIBC in
its individual capacity (such "Lenders," excluding CIBC, being referred to
herein as the "Former 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, the Fifth Amendment to Credit
Agreement dated as of September 2, 1999 and the Sixth Amendment to Credit
Agreement dated as of December 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 has voluntarily reduced the Commitments to
$30,000,000 under the Credit Agreement. There are currently no Loans outstanding
under the Commitments.
C. Concurrently with the execution and delivery of this Amendment,
and as a condition thereto, CIBC, in its individual capacity, and Bankers Trust
Company ("BT") have purchased the Commitments of the Former Lenders pursuant to
an Assignment and Acceptance Agreement by and between the Former Lenders, as
assignors, and CIBC and BT, as assignees (the "Assignment Agreement").
D. The willingness of CIBC and BT to enter into the Assignment
Agreement is subject to certain further amendments of the Credit Agreement set
forth herein.
E. The Borrower has also requested certain amendments to the Credit
Agreement. In addition, the Borrower seeks the consent of CIBC and BT, upon the
effectiveness of the Assignment Agreement, to the purchase (either directly, or
by contribution by its parent company, Acme Communications, Inc. (the "Parent"))
of certain new FCC construction permits serving the markets of Flint, Michigan,
Richmond, Virginia, Portland, Oregon, and Lexington, Kentucky (the "New CPs")
and the related FCC Licenses.
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F. The Lenders are willing to agree to such amendments and provide
their consent to the purchase of the New CPs subject to the conditions set forth
herein.
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. REDUCTION OF COMMITMENTS. SECTION 1.01 is hereby amended by
deleting the character and number "$40,000,000" and substituting therefor
"$30,000,000".
B. SCHEDULED REDUCTIONS OF COMMITMENT. SECTION 1.02 of the Credit
Agreement is hereby amended by deleting the Table set forth therein and
replacing it with the following:
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Aggregate Amount of Automatic Maximum Commitments
Quarterly Date Permanent Reduction
--------------------------------------------------------------------------------
December 31, 2000 $0 $30,000,000
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March 31, 2001 $0 $30,000,000
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June 30, 2001 $0 $30,000,000
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September 30, 2001 $1,000,000 $29,000,000
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December 31, 2001 $1,000,000 $28,000,000
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March 31, 2002 $1,000,000 $27,000,000
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June 30, 2002 $1,000,000 $26,000,000
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September 30, 2002 $26,000,000 $0
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C. INTEREST. SECTION 1.03(b)(II) is hereby amended by revising the
top tier of the Table set forth therein, which establishes the Applicable Margin
for Pricing Periods during which the Pricing Ratio equals or exceeds 6.00:1.00,
to increase the Applicable Margin from 2.00% to 2.50% for Prime Rate Loans and
3.00% to 3.50% for LIBOR Loans.
D. PREPAYMENTS OUT OF LIQUID ASSETS; DISPOSITIONS OF ASSETS. SECTION
1.06 of the Credit Agreement is hereby amended as follows:
(1) By amending the subtitle of subsection (d) to read as follows:
"MANDATORY REDUCTIONS OF COMMITMENTS; DEBT ISSUANCES; PREPAYMENTS FROM LIQUID
ASSETS"; and
(2) By adding at the end of such Section the following:
From and after December 29, 2000, commencing on the tenth day following the last
day of the first full calendar quarter during which the first Advances are made
under the Commitments and continuing thereafter on the tenth day after the last
day of each subsequent calendar quarter, the Borrower shall prepay any
outstanding principal under the Notes, and reduce the Commitments accordingly,
in an aggregate amount equal to one hundred percent (100%) of Liquid Assets in
excess of $2,000,000 as of such quarter-end as provided in SECTION 1.09(f).
Notwithstanding the
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provisions of SECTION 1.06(E) below, mandatory reductions of the Commitments
made in conjunction with any such mandatory prepayments shall be applied to
automatic reductions in the order in which they are due under SECTION 1.02.
(c) By adding at the end of subsection (c) thereof, the following:
Notwithstanding the following, the provisions of this SECTION 1.06(c)
permitting reinvestment of Adjusted Net Cash Proceeds shall not apply to any
Disposition of the assets and properties of Television Station KPLR, licensed to
St. Louis, Missouri.
E. CONDITIONS TO LOANS. SECTION 3.03 of the Credit Agreement is
hereby amended by adding at the end thereof a new paragraph (e) thereto reading
as follows:
(e) After giving effect to such Loans, no event shall have occurred and
no circumstance shall exist that has had, or could reasonably be expected to
have, a Material Adverse Effect.
F. FINANCIAL COVENANTS. ARTICLE V of the Credit Agreement is hereby
amended as follows:
1. MINIMUM EBITDA. SECTION 5.01 of the Credit Agreement is hereby
amended for all periods after the date hereof by deleting the Table set forth
therein and substituting therefor the following:
FOUR FISCAL
QUARTERS ENDING MINIMUM EBITDA
--------------- --------------
September 30, 2000 $16,000,000
December 31, 2000 $18,000,000
March 31, 2001 $19,000,000
June 30, 2001 $19,500,000
September 30, 2001 $22,000,000
December 31, 2001 $24,000,000
March 31, 2002 $26,000,000
June 30, 2002 $28,000,000
September 30, 2002 $31,000,000
2. MAXIMUM TOTAL DEBT LEVERAGE. SECTION 5.02 of the Credit Agreement
is hereby amended for all periods after the date hereof by deleting the Table
set forth therein and substituting therefor the following:
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MAXIMUM RATIO OF TOTAL DEBT TO
QUARTERLY DATE(S) ADJUSTED EBITDA
----------------- ---------------
December 31, 2001 8.75:1.00
March 31, 2002 8.25:1.00
June 30, 2002 7.75:1.00
September 30, 2002 7.50:1.00
3. CASH INTEREST COVERAGE. SECTION 5.04 of the Credit Agreement is
hereby amended for all periods after the date hereof by deleting the Table set
forth therein and substituting therefor the following:
MINIMUM RATIO OF EBITDA TO
QUARTERLY DATE(S) CASH INTEREST EXPENSE
----------------- ---------------------
September 30, 2000 and December 31, 2000 2.50:1.00
March 31, 2001 1.50:1.00
June 30, 2001 1.15:1.00
September 30, 2001 1.05:1.00
December 31, 2001 1.10:1.00
March 31, 2002 1.15:1.00
June 30, 2002 1.20:1.00
September 30, 2002 1.25:1.00
4. MAXIMUM NEW STATION EBITDA LOSSES. Adding a new covenant thereto,
following SECTION 5.05 and reading in its entirety as follows hereby amends
Article V of the Credit Agreement:
SECTION 5.06 MAXIMUM NEW STATION EBITDA LOSSES. The New Stations shall
not incur EBITDA losses in excess of (a) $6,000,000 in the aggregate during the
term of this Agreement or (b) $4,000,000 for any period of four (4) consecutive
fiscal quarters.
5. NEW STATION CAPITAL EXPENDITURES ARTICLE V of the Credit Agreement is
hereby amended by adding an additional covenant thereto, following new SECTION
5.06 and reading in its entirety as follows:
SECTION 5.07. NEW STATION CAPITAL EXPENDITURES. Not make or incur
Capital Expenditures through September 30, 2002 in excess of (a) $18,000,000 in
the aggregate for all of the New Stations or (b) $4,500,000 in respect of any
one New Station.
G. ADDITIONAL EQUITY. ARTICLE VI of the Credit Agreement is hereby
amended by adding an additional affirmative covenant thereto, following SECTION
6.11 and reading in its entirety as follows:
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SECTION 6.12. EQUITY CONTRIBUTIONS. For the purposes set forth below,
maintain, as provided under the Contribution Agreement, at least $5,000,000 in
available cash equity contributions, minus any equity funded as required
hereunder; and, if and to the extent that the Borrower is unable to obtain lease
or vendor financing (as permitted under SECTIONS 7.01(G) and 7.02(G)) to finance
Adjusted Capital Expenditures for any calendar quarter for the Original Stations
equal to (a) 63% of quarterly Adjusted Capital Expenditures for the Original
Stations in 2001 and (b) 85% of quarterly Adjusted Capital Expenditures for the
Original Stations in 2002, call for such equity funding and apply such funds to
finance the shortfall, up to a maximum aggregate amount equal to (i) $5,000,000
minus (ii) the combined Interest Coverage Remedy Deductions, if any, for the two
(2) fiscal quarters ending September 30 and December 31, 2001, with payments to
be made under the Contribution Agreement within thirty (30) days after the end
of such quarter. Notwithstanding the foregoing, the Borrower shall not be
required to maintain such equity capital from and after the date as of which it
shall enter into capital equipment financing agreements sufficient, in the
reasonable judgment of the Required Lenders, to fund Capital Expenditures for
the Original Stations from and after such date through September 30, 2002.
H. DISPOSITIONS OF ASSETS. SECTION 7.03 of the Credit Agreement is
hereby amended by adding at the end thereof the following:
Notwithstanding the foregoing, in the event of the Disposition of Television
Station KPLR-TV, licensed to St. Louis, Missouri, whether by sale of stock or
assets, (1) the provisions of SECTION 1.06(c) permitting the redeployment of the
Adjusted Net Cash Proceeds thereof to acquire additional assets shall not apply,
(2) such Adjusted Net Cash Proceeds shall be applied to repay the Notes in full
and (3) the Commitments shall be permanently reduced in such amount, whether or
not any Loans are then outstanding, all as of the date such proceeds are
received.
I. EVENTS OF DEFAULT. ARTICLE VIII of the Credit Agreement is hereby
amended by adding at the end of paragraph (p) thereof the following: ",of if
any material default shall occur under the Contribution Agreement or if the
Parent shall disavow its obligations thereunder".
J. DEFINITIONS. ARTICLE IX of the Credit Agreement is hereby amended
as follows:
1. By adding at the end of the definition of "EBITDA" the following:
For purposes of determining covenant compliance, under SECTIONS 5.01,
5.02, 5.03 and 5.04, the calculation of EBITDA will exclude the losses
arising from the operation or construction of (a) the New Stations
during the term of this Agreement and (b) the Xxxxxx Stations through
September 30, 2001.
2. By adding at the end of the definition of "INTEREST EXPENSE" the
following:
For purposes of determining compliance with SECTION 5.04, for
each of the two fiscal quarters ending September 30, 2001 and December
31, 2001, the Borrower may elect to apply up to $2,000,000 in cash
equity contributions made by the Parent during or
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within thirty (30) days after the end of such fiscal quarter to the
reduction of Total Interest Expense; provided that such funds are
retained by the Borrower and used for Capital Expenditures, working
capital and other general corporate purposes. The Borrower may make such
election by notice to the Agent given in the applicable Compliance
Report, which shall include a line item designation of such equity
contributions in the determination of Cash Interest Coverage in the
Compliance Report. Such equity funds are referred to herein for any
quarter as such quarter's "Interest Coverage Remedy Deduction".
3. By amending the first introductory paragraph of the definition of
"PERMITTED ACQUISITION" to read as follows:
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 (including through a contribution from
the Borrower's parent entity), of substantially all of the assets
of or ownership interests in a television broadcast property
(each, an "Acquisition"), which Acquisition shall have been
approved in writing by the Required Lenders in their sole and
absolute discretion prior to the execution of the Acquisition
Agreement relating thereto. 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
will also be subject to the fulfillment of the following
conditions:"
4. By deleting the definition of "REQUIRED LENDERS" and substituting
therefor the following:
REQUIRED LENDERS. At any time Lenders (excluding Defaulting
Lenders) holding at least fifty-one percent (51%) of the sum of the
aggregate outstanding principal amount of the Loans and the aggregate
amount of the unused Commitments.
5. By adding, in alphabetical order, the following new definitions:
(a) ADJUSTED CAPITAL EXPENDITURES. For any calendar quarter,
(a) Capital Expenditures made by the Companies in respect of the
Original Stations in such quarter minus (b) any such amounts paid for
deposits or construction in progress relating to capital assets not
completed by the end of such quarter.
(b) CONTRIBUTION AGREEMENT. The Contribution Agreement of
dated as of December 29, 2000 between the Parent and the Borrower, as
originally executed and delivered.
(c) INTEREST COVERAGE REMEDY DEDUCTION. See the definition of
"Interest Expense".
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(d) LIQUID ASSETS. As of any date, cash on hand and Permitted
Investments of the Borrower and the Subsidiaries of the type referred to
in clauses (d), (e) and (f) of the definition of such term set forth
below.
(e) NEW STATIONS. The FCC construction permits and related FCC
Licenses for new broadcast television stations serving the markets of
(a) Flint, Michigan; (b) Richmond, Virginia; (c) Portland, Oregon; and
(d) Lexington, Kentucky, including the fully built Stations.
(f) ORIGINAL STATIONS. All of the Stations owned, operated and
under construction by the Companies, other than the New Stations.
(g) PARENT. ACME Communications, Inc., a Delaware corporation.
(h) XXXXXX STATIONS. Broadcast television stations WBDT-TV,
serving the Springfield and Dayton, Ohio, markets; WIWB-TV, serving the
Suring and Green Bay, Wisconsin, markets; and WBUI-TV, serving the
Decatur and Champaign, Illinois, markets.
K. SCHEDULES. The Credit Agreement is hereby amended by deleting
SCHEDULES 1.01(a) and 6.05 and substituting therefor the attached SCHEDULEs
1.01(a) and 6.05.
L. 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 ACQUISITIONS.
A. CONSENTS. Subject to the conditions set forth in SECTION II (B)
below, the Lenders hereby consent to (1) the execution and delivery of binding
agreements providing for the Acquisition of the New CPs and the related FCC
Licenses (which shall constitute "Permitted Acquisitions" for all purposes of
the Credit Agreement), as described in the Recitals to this Amendment and
otherwise in a manner reasonably satisfactory to the Lenders, and (2) the
consummation of such Permitted Acquisitions substantially in accordance with
such agreements.
B. CONDITIONS TO CONSENTS. The foregoing consents are subject to the
following express conditions:
(1) The Acquisition Documents relating to such Permitted
Acquisitions shall be in form and substance reasonable satisfactory to
the Lenders and shall be collaterally assigned by the Borrower to the
Agent and the Lenders to secure the Obligations, with the written
consent of all other parties thereto, as required under SECTION 2.01 of
the Credit Agreement.
(2) 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
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thereof, in a timely manner, unless otherwise permitted by the Agent.
Without limitation of the foregoing, the Borrower shall deliver to the
Agent a fully completed Acquisition Compliance Checklist, together with
appropriate Officer's Compliance Certificate, as 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 B
thereto).
(3) If the purchase is effected directly by the Borrower, the
Borrower's parent companies shall make capital contributions to fund the
full amount of the purchase price therefor.
(4) 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 Agent and
the Lenders that:
A. The execution and delivery of this Amendment and the other Loan
Documents contemplated hereby, including without limitation the Contribution
Agreement (collectively, the "Documents"), have been duly authorized by all
requisite corporate action on the part of the Borrower, the Subsidiaries and the
Parent.
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. Since the Closing Date (and, without limitation thereof, since
December 31, 1999), no event or circumstance has occurred or existed which could
reasonably be expected to have Material Adverse Effect. As of the date hereof
and after giving effect to this Amendment, no Default has occurred and is
continuing.
C. Without limiting the generality of the Borrower's representation
of no Default set forth in paragraph B above, the Borrower hereby confirms that
its audited and unaudited financial statements for the year ended December 31,
1999 and the fiscal quarter ended September 30, 2000 delivered as required under
SECTION 6.05(a) and SECTION 6.05(b) of the Credit Agreement have been prepared
in accordance with GAAP and fairly present the financial condition of the
Companies as of the dates thereof and for the periods ended on such dates, and
none of the Companies has any contingent obligations, liabilities for taxes or
unusual forward or long-term commitments except as specified in such financial
statements. All financial
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projections submitted to the Lenders by the Borrower (including all projections
set forth in the Budget) are believed by the Borrower to be reasonable in light
of all information presently known by the Borrower.
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 Authority (including any
Specified Authority), or any other Person in connection with or as a condition
to the execution, delivery or performance of this Amendment or any of the other
Documents, other than FCC consents necessary in connection with the acquisition
of the New CPs and the formation of License Subsidiaries to hold the related FCC
Licenses.
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) The attached Joinder, duly authorized, executed and delivered
by the Borrower's Subsidiaries.
(c) The Contribution Agreement.
(d) True and complete copies of any stockholders' consents and/or
resolutions of the board of directors or other governing body of each
company (provided that delivery of the resolutions from the Parent's
board may be deferred until no later than January 6, 2001), authorizing
the execution and delivery of this Amendment and the Acquisition
Documents the execution and delivery of any and all other Documents
contemplated hereby and all documents contemplated thereby, in each case
certified by the Manager or Secretary of the appropriate Company, as
appropriate.
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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 Agent and the Lenders shall have received the favorable
opinion of general counsel to the Borrower, its Subsidiaries and the Parent as
to the due authorization, execution and delivery of this Amendment and the other
Documents, the enforceability thereof, the absence of conflict thereof with
material contracts and such other matters as may be reasonably requested by the
Agent.
C. In consideration for the amendments and consents provided herein,
the Borrower shall have paid (1) to CIBC, a non-refundable amendment fee of
$54,625, and (2) to the Agent, a non-refundable facility fee in the amount of
$61,125, for CIBC's account, and $225,000, for Bankers Trust Company's account.
D. 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 internal laws of the State of New York (excluding the laws applicable
to conflicts or choice of laws).
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.
[The next pages are the signature pages.]
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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.
BORROWER:
ACME TELEVISION, LLC
By: /s/ Xxxxxx X. Xxxxx
-----------------------------------------
Xxxxxx X. Xxxxx, Executive Vice President
AGENT:
CANADIAN IMPERIAL BANK OF
COMMERCE, AS AGENT
By: /s/ Xxxxxx Xxxx
-----------------------------------------
Xxxxxx Xxxx, Executive Director
CIBC World Markets Corp., as Agent
SYNDICATION AGENT:
BANKERS TRUST COMPANY,
AS SYNDICATION AGENT
By: /s/ Xxxxxxx Xxxxxxx
-----------------------------------------
Xxxxxxx Xxxxxxx, Director
Bankers Trust Company
LENDER:
CIBC INC.
By: /s/ Xxxxxx Xxxx
-----------------------------------------
Xxxxxx Xxxx, Executive Director
CIBC World Markets Corp., as Agent
LENDER:
BANKERS TRUST COMPANY
By: /s/ Xxxxxxx Xxxxxxx
-----------------------------------------
Xxxxxxx Xxxxxxx, Director
Bankers Trust Company
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JOINDER BY GUARANTORS
The undersigned hereby jointly and severally join in the execution of
the foregoing Seventh Amendment to Credit Agreement dated as of December 29,
2000 (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 (a) the Sixth Amendment to
Credit Agreement dated as of December 31, 1999, (b) the respective Guarantees of
the undersigned and (c) 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 Licenses of Illinois, LLC
ACME Television of Illinois, LLC
ACME Television Licenses of Ohio, LLC
ACME Television of Ohio, LLC
ACME Television Licenses of Wisconsin, LLC
ACME Television of Wisconsin, LLC
By /s/ Xxxxxx X. Xxxxx
----------------------------------------
Duly authorized signatory as to all
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ASSIGNMENT AND ACCEPTANCE
THIS ASSIGNMENT AND ACCEPTANCE ("this Agreement") is made this 29th day
of December, 2000, by and between the undersigned parties designated as
Assignors (the "Assignors") and the undersigned parties designated as Assignees
(the "Assignees").
1. RECITALS.
(a) The Assignors are parties to that certain First Amended and
Restated Credit Agreement dated as of December 2, 1997 among ACME TELEVISION,
LLC (the "Borrower"), certain Persons named therein as "Lenders" and CANADIAN
IMPERIAL BANK OF COMMERCE, as Agent for the Lenders (the "Agent") (as the same
has been and may from time to time be amended, restated, renewed, supplemented
or otherwise modified from time to time, is hereinafter called the "Credit
Agreement").
(b) Capitalized terms used herein and not otherwise defined herein
shall have the meanings assigned to such terms in the Credit Agreement.
(c) Immediately prior to the assignments and assumptions provided
herein, each Assignor's Commitment and its outstanding Loans, if any, are as
specified in PART A of Schedule A attached hereto. Such Schedule, for the
convenience of the parties, sets forth the Commitments and outstanding Loans, if
any, of all of the Lenders under the Credit Agreement, whether or not such
Lenders are Assignors hereunder. Each Assignor desires to assign and delegate to
each Assignee, and each Assignee desires to acquire and assume from each
Assignor, a portion of such Assignor's Commitment and outstanding Loans (for all
of the Assignors, collectively, the "Purchased Percentage") and all related
claims for interest and fees after the Effective Date (as defined in PART C of
SCHEDULE A), such that such Assignor's and such Assignee's percentage of the
aggregate Commitments and the outstanding Loans shall be as set forth in PART B
of such SCHEDULE A. As of the Effective Date, the Assignors will hold no
Commitments and will no longer be Lenders under the Credit Agreement or any of
the other Loan Documents.
2. ASSIGNMENT. For and in consideration of the assumption of
obligations by the Assignees and the other consideration set forth herein, as of
the Effective Date, each Assignor does hereby sell, assign, transfer and convey
all of its right, title and interest in and to, and does hereby delegate its
obligations in respect of, the Purchased Percentage as indicated in SCHEDULE A
owned by such Assignor and outstanding on the Effective Date and the Credit
Agreement and other Loan Documents (other than any Rate Hedging Agreements).
Pursuant to ARTICLE XIII of the Credit Agreement, on and after the Effective
Date, each Assignee shall have the rights, benefits and obligations of a Lender
under the Loan Documents with respect to the Purchased Percentage. After giving
effect to the assignment and delegation provided herein, the Commitment and
outstanding Loans, if any, of each Assignee shall be as indicated in PART B of
SCHEDULE A.
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3. ASSUMPTION. For and in consideration of the assignment of rights
by the Assignor set forth in SECTION 2 hereof and the other consideration set
forth herein, and effective as of the Effective Date, each Assignee does hereby
accept the foregoing assignment of rights and delegation of obligations, and
does hereby assume and covenant and agree fully, completely and timely to
perform, comply with and discharge, each and all of the obligations, duties and
liabilities of the Assignors under the Credit Agreement, which are assigned and
delegated to the Assignees hereunder, which assumption includes, without
limitation, the obligation to fund the unfunded portion of each Assignee's
purchased Commitment in accordance with the provisions set forth in the Credit
Agreement. Each Assignee agrees to be bound by all provisions relating to the
Lenders under, and as defined in, the Credit Agreement, including, without
limitation, provisions relating to the dissemination of information and the
payment of indemnification. From and after the Effective Date, each Assignor is
released from the obligations of such Assignor with respect to its portion of
the Purchased Percentage, and the Borrower is released from further obligations
to the Assignors after the Effective Date with respect to the Purchased
Percentage.
4. FEES; ETC. The Assignors and the Assignees have made arrangements
with respect to any fees to be paid in connection with this assignment or any
fee or interest adjustments to be made from and after the Effective Date.
5. PAYMENT OBLIGATIONS. On and after the Effective Date, each
Assignee shall be entitled to receive from the Agent all payments of principal,
interest and fees with respect to its Commitment and Loans, if any. The
Assignors and Assignees shall make all appropriate adjustments in payments under
the Credit Agreement for periods prior to the Effective Date between themselves.
In the event that either party hereto receives any payment to which the other
party hereto is entitled under this Agreement, then the party receiving such
amount shall promptly remit it to the other party hereto.
6. REPRESENTATIONS AND CERTAIN AGREEMENTS.
(a) REPRESENTATIONS, WARRANTIES AND AGREEMENTS OF ASSIGNEES. Each
Assignee represents, warrants and agrees to and with the Assignor as follows:
(i) Such Assignee has full power and authority, and has taken
all action necessary, to execute and deliver this Agreement and to
fulfill its obligations under, and consummate the transactions
contemplated by, this Agreement;
(ii) the making and performance by such Assignee of this
Agreement and all documents required to be executed and delivered by it
hereunder do not and will not violate any law or regulation of the
jurisdiction of its organization or any other law or regulation
applicable to it;
(iii) this Agreement has been duly executed and delivered by it
and constitutes the legal, valid and binding obligations of such
Assignee, enforceable against it in accordance with its terms;
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(iv) all approvals and authorizations of, all filings with and
all actions by any governmental or other administrative or judicial
authority necessary for the validity or enforceability of such
Assignee's obligations under this Agreement have been obtained;
(v) such Assignee has received a copy of the Credit Agreement
and the other Loan Documents, together with copies of the most recent
financial statements and Compliance Report delivered pursuant to
SECTIONS 6.05(a), (b) and (c) thereof and such other documents and
information as it has deemed appropriate to make its own credit analysis
and decision to enter into this Agreement;
(vi) such Assignee appoints and authorizes the Agent to take
such action as agent on its behalf and to exercise such powers under the
Credit Agreement and the other Loan Documents as are delegated to the
Agent by the terms thereof, together with such powers as are reasonably
incidental thereto; and
(vii) such Assignee agrees that it will perform in accordance
with their terms all the obligations which by the terms of the Credit
Agreement are required to be performed by it as a Lender.
(b) REPRESENTATIONS AND WARRANTIES OF ASSIGNORS. Each Assignor
represents and warrants to the Assignees as follows:
(i) Such Assignor has full power and authority, and has taken
all action necessary, to execute and deliver this Agreement and to
fulfill its obligations under, and consummate the transactions
contemplated by, this Agreement;
(ii) the making and performance by such Assignor of this
Agreement and all documents required to be executed and delivered by it
hereunder do not and will not violate any law or regulation of the
jurisdiction of its organization or any other law or regulation
applicable to it;
(iii) this Agreement has been duly executed and delivered by it
and constitutes the legal, valid and binding obligations of such
Assignor, enforceable against it in accordance with its terms;
(iv) all approvals and authorizations of, all filings with and
all actions by any governmental or other administrative or judicial
authority necessary for the validity or enforceability of such
Assignor's obligations under this Agreement have been obtained;
(v) immediately prior to giving effect to the sale, assignment
and transfer contemplated by SECTION 2, such Assignor has good title to,
and is the sole legal and beneficial owner of, the Purchased Percentage,
free and clear of all liens, security interests, participations and
other encumbrances.
7. CREDIT DETERMINATION; LIMITATIONS ON THE ASSIGNOR'S LIABILITY. It
is understood and agreed that each Assignee has independently made its
own credit determination and analysis
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based upon such information as such Assignee deems sufficient to enter
into the transaction contemplated hereby and not based on any statements
or representations by any Assignor and that it will, independently and
without reliance upon any Assignor, any other Lender or the Agent and
based on such documents and information as it shall deem appropriate at
the time, continue to make its own credit decisions in taking or not
taking action under the Credit Agreement. It is understood and agreed
that the assignment and assumption hereunder are made WITHOUT RECOURSE
to any Assignor and that no Assignor makes any representation or
warranty of any kind to any Assignee (except as set forth in SECTION
6(b) above) and shall not be responsible for (a) the due execution,
legality, validity, enforceability, genuineness, sufficiency, value or
collectibility of the Credit Agreement or any other Loan Document,
including without limitation, documents granting the Assignees and other
Lenders a security interest in assets of the Borrower or any Subsidiary,
(b) any representation, warranty or statement made in or in connection
with any of the Loan Documents, (c) the financial condition or
creditworthiness of the Borrower or any Subsidiary, (d) the performance
or compliance with any of the terms or provisions of any of the Loan
Documents, (e) inspecting any of the property, books or records of the
Borrower or any Subsidiary or (f) the validity, enforceability,
perfection, priority, condition, value or sufficiency of any collateral
securing or purporting to secure the Loans. None of the Assignors nor
any of their respective officers, directors, employees, agents or
attorneys shall be liable for any mistake, error of judgment, or action
taken or omitted to be taken in connection with the Loans or the Loan
Documents, except for its or their own respective gross negligence or
willful misconduct.
8. SUBSEQUENT ASSIGNMENTS. After the Effective Date, each Assignee
shall have the right to assign the rights which are assigned to such Assignee
hereunder to any entity or person, provided that (a) any such subsequent
assignment does not violate any of the terms and conditions of the Loan
Documents or any law, rule, regulation, order, writ, judgment, injunction or
decree and that any consent required under the terms of the Loan Documents has
been obtained and (b) such Assignee is not thereby released from any of its
obligations to the Assignors hereunder.
9. GOVERNING LAW. This Agreement shall be governed by the internal
law, and not the law of conflicts, of The State of New York.
10. NOTICES. Notices shall be given under this Agreement in the
manner set forth in the Credit Agreement. For the purpose hereof, the addresses
of the parties hereto (until notice of a change is delivered) shall be the
addresses set forth under the parties' respective name(s) on the signature pages
hereto.
11. FURTHER ASSURANCES. Each of the Assignors and the Assignees
hereby agree to execute and deliver such other instruments, and take such other
actions, as any party may reasonably request in connection with the transactions
contemplated by this Agreement.
12. EXPENSES. Each party hereto shall bear its own expenses in
connection with the execution, delivery and performance of this Agreement.
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13. AMENDMENT, MODIFICATION OR WAIVER. No provision of this Agreement
may be amended, modified or waived except by an instrument in writing signed by
the Assignor and/or Assignors and the Assignee and/or Assignees affected
thereby.
14. JURISDICTION; VENUE. Each of the parties hereto hereby submits to
the nonexclusive jurisdiction of the United States District Court for the
Southern District of New York or of any New York state court for the purposes of
all legal proceedings arising out of or relating to this Agreement or the
transactions contemplated hereby. Each of the parties hereto hereby irrevocably
waives, to the fullest extent permitted by law, any objection which it may now
or hereafter have to the venue of any such proceeding brought in such a court
and any claim that any such proceeding brought in such a court has been brought
in an inconvenient forum.
15. WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETO HEREBY
IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY AND ALL RIGHT TO
TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS
AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
16. COUNTERPARTS. This Agreement may be executed in counterparts,
each of which shall be identical and all of which, taken together, shall
constitute one instrument. 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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IN WITNESS WHEREOF, the parties hereto have executed this Agreement by
their duly authorized officers as of the date first above written.
ASSIGNORS:
BANK OF MONTREAL, CHICAGO BRANCH
By: /s/ X.X. Xxxxxx
------------------------------
X.X. Xxxxxx, Managing Director
UNION BANK OF CALIFORNIA, N.A.
By: /s/ Xxxxx Xxxxx
------------------------------
Xxxxx Xxxxx, Vice President
BANK OF AMERICA, N.A.
By: /s/ Xxxxx X. Xxx
------------------------------
Xxxxx X. Xxx, Vice President
ASSIGNEES:
CIBC INC.
By: /s/ Xxxxxx Xxxx
-------------------------------
Xxxxxx Xxxx, Executive Director
CIBC World Markets Corp., as Agent
BANKERS TRUST COMPANY
By: /s/ Xxxxxxx Xxxxxxx
------------------------------
Xxxxxxx Xxxxxxx, Director
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SCHEDULE A
TO ASSIGNMENT AND ACCEPTANCE AGREEMENT
PART A: ALLOCATION OF COMMITMENTS PRIOR TO ASSIGNMENT
Prior to assignment of the Purchased Percentage, the portions of the respective
Commitments held by the respective Lenders under the Credit Agreement, including
the Assignor, are set forth in the following Table. No Loans are outstanding
under the Commitments.
LENDERS COMMITMENT PERCENTAGE
------- ---------- ----------
CIBC INC. $ 8,625,000.00 28.75%
BANK OF MONTREAL CHICAGO $ 7,125,000.00 23.75%
BRANCH
UNION BANK OF CALIFORNIA, N.A $ 7,125,000.00 23.75%
BANK OF AMERICA, N.A. $ 7,125,000.00 23.75%
------------------------------ -------------- -------
TOTAL: $30,000,000.00 100.0%
20
PART B: ALLOCATION OF COMMITMENTS AFTER ASSIGNMENT
Following assignment of the Purchased Percentage, the Assignors will hold no
Commitments or Loans and the portions of the respective Commitments held by the
Assignees will be as set forth in the following Table. No Loans will be
outstanding as of the Effective Date.
ASSIGNEES COMMITMENT PERCENTAGE
--------- ---------- ----------
CIBC INC. $15,000,000.00 50.0%
BANKERS TRUST COMPANY $15,000,000.00 50.0%
----------------------------- -------------- ------
TOTAL: $30,000,000.00 100.0%
PART C: NOTICE INFORMATION; ETC.
1. Effective Date: December 29, 2000
2. CIBC INC.
(a) Payment Instructions:
Credit Bank: Bank of New York
ABA: 000-000-000
Credit to: Canadian Imperial Bank of Commerce
Acct: 000-0000-000
For Further Credit to: Agented Loans
Acct: 07-09611
Attn: Agency Services
Ref: ACME Television
(b) Notice Instructions:
CIBC World Markets Corp.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx Xxxx
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
Reference: ACME Television
21
3. BANKERS TRUST COMPANY
(a) Payment Instructions:
Credit Bank: Bankers Trust Company
ABA: 000000000
Acct Name: Loan Division
Acct #: 99401268
Ref: ACME Television
(b) Notice Instructions:
Deutsche Bank Securities Inc.
Global Investment Banking
000 Xxxxxxx Xxxxxx
XX XXX00-0000
Xxx Xxxx, XX 00000
Attention: Xxxxxxx Xxxxxxx, Director
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
E-mail: Xxxxxxx.Xxxxxxx@xx.xxx
Reference: ACME Television
