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EXHIBIT 10.41
AMENDMENT NO. 2
THIS AMENDMENT NO. 2 is dated as of June 30, 1998 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
CIBC 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 dated as of June 30, 1998, 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 certain financial covenant levels be
amended in the Credit Agreement.
C. Subject to certain terms and conditions set forth herein, the Agent
and the 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:
1. AMENDMENTS TO CREDIT AGREEMENT.
Subject to the satisfaction of each of the conditions set forth in
SECTION 4, the Lenders hereby agree with the Borrower that the Credit Agreement
shall be amended as follows:
A. MINIMUM EBITDA. The minimum EBITDA level in Section 5.01 of the
Credit Agreement is amended for the periods ending June 30, 1998 and September
30, 1998 to be $3,600,000 and $5,500,000, respectively. All of the other levels
of minimum EBITDA set forth in Section 5.01 shall remain unchanged.
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.
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2. 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 Agreement, 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.
3. 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 Agreement 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 Agreement 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 from that disclosed in the
financial statements most recently furnished to the Lenders. No Event of
Default, or condition or event which would, with notice or the lapse of time or
both, result in an Event of Default, has occurred and is continuing.
C. Neither the Borrower nor any Affiliate 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 Agreement or the other Documents.
D. This Agreement 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
4.
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4. CONDITIONS.
The willingness of the Agent and the Lenders to amend the Credit
Agreement, is subject to the following conditions precedent and subsequent:
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 Agreement.
(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 Agreement 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.
5. 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 Agreement and the
other Documents.
B. This Agreement shall be governed by and construed in accordance with
the laws of the State of New York.
C. This Agreement 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 Agreement 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 Agreement 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: Executive Vice President and
Chief Financial Officer
CANADIAN IMPERIAL BANK OF
COMMERCE, AS AGENT
By /s/ Xxxxxx Xxxx
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Xxxxxx Xxxx, Director
CIBC Xxxxxxxxxxx Corp., as agent
CIBC INC.
By /s/ Xxxxxx Xxxx
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Xxxxxx Xxxx, Director
CIBC Xxxxxxxxxxx Corp., as agent
NATIONSBANK, N.A.
By /s/ Xxxx X. Xxxxxxx
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Xxxx Xxxxxxx, Vice President
UNION BANK OF CALIFORNIA, N.A.
By /s/ Xxxxxxxxx X. Xxxx
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Xxxxxxxxx Xxxx, Vice President
(signatures continued)
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BANK OF MONTREAL, CHICAGO BRANCH
By /s/ X. X. Xxxxxx
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Xxx Xxxxxx, Director
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JOINDER BY GUARANTORS
The undersigned hereby jointly and severally join in the execution of the
foregoing Amendment No. 2 dated as of [June 30, 1998] (the "Agreement") to which
this Joinder is attached to confirm their respective consents to all of the
transactions contemplated by the Agreement 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 Holdings of Oregon, LLC
ACME Television of Oregon, LLC
ACME Television Licenses of Oregon, LLC
ACME Television Holdings of Tennessee, LLC
ACME Television of Tennessee, LLC
ACME Television Licenses of Tennessee, LLC
ACME Television Holdings of Utah, LLC
ACME Television of Utah, LLC
ACME Television Licenses of Utah, LLC
ACME Television Holdings of New Mexico, LLC
ACME Television of New Mexico, LLC
ACME Television Licenses of New Mexico, LLC
ACME Subsidiary Holdings III, LLC
ACME Television Holdings of Missouri, Inc.
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
