Exhibit 10.36
ACME TELEVISION, LLC
ACME FINANCE CORPORATION
$175,000,000 Principal Amount at Maturity
10-7/8% Senior Discount Notes due 2004
PURCHASE AGREEMENT
September 24, 1997
CIBC WOOD GUNDY SECURITIES CORP.
▇▇▇▇▇▇▇ ▇▇▇▇▇ & CO.
▇▇▇▇▇▇▇ LYNCH, ▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇
INCORPORATED
c/o CIBC Wood Gundy Securities Corp.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
ACME Television, LLC, a Delaware limited liability company (the
"Company"), ACME Finance Corporation, a Delaware corporation ("Finance" and,
together with the Company, the "Issuers"), and each of the Company's
subsidiaries listed in EXHIBIT A-1 hereto (each, a "Guarantor" and,
collectively, the "Guarantors" and, together with the Issuers, the "Obligors"),
hereby confirm their agreement with you (the "Initial Purchasers"), as set forth
below.
1. THE SECURITIES. Subject to the terms and conditions herein
contained, the Issuers propose to issue and sell to the Initial Purchasers
$175,000,000 aggregate principal amount at maturity of their 10-7/8% Senior
Discount Notes due 2004 (the "Notes"). The obligations of the Issuers under the
Indenture (as hereinafter defined) and the Notes will be unconditionally
guaranteed (the "Guarantees"), on a joint and several basis, by each Guarantor.
The Notes and the Guarantees are to be issued pursuant to the Indenture (the
"Indenture"), dated as of September 30, 1997, among the Issuers, the Guarantors
and Wilmington Trust Company, as trustee (the "Trustee"). The Notes and the
Guarantees are hereinafter referred to collectively as the "Securities."
The Securities will be offered and sold to the Initial Purchasers
without such offers and sales being registered under the Securities Act of 1933,
as amended (together with the
rules and regulations of the Securities and Exchange Commission (the
"Commission") promulgated thereunder, the "Securities Act"), in reliance on
exemptions therefrom.
In connection with the sale of the Securities, the Issuers have
prepared a preliminary offering memorandum dated September 5, 1997, the
"Preliminary Memorandum") and a final offering memorandum dated September 24,
1997 (the "Final Memorandum"; the Preliminary Memorandum and the Final
Memorandum each herein being referred to as a "Memorandum"), each setting forth
or including a description of the terms of the Securities, the terms of the
offering of the Securities, a description of the Company and its subsidiaries
and any material developments relating to the Company and its subsidiaries
occurring after the date of the most recent historical financial statements
included therein.
The Issuers and the Guarantors understand that the Initial
Purchasers propose to make an offering of the Securities only on the terms and
in the manner set forth in the Memorandum and Section 9 hereof as soon as the
Initial Purchasers deem advisable after this Agreement has been executed and
delivered, to persons in the United States whom the Initial Purchasers
reasonably believe to be qualified institutional buyers ("QIBs") as defined in
Rule 144A under the Securities Act, as such rule may be amended from time to
time ("Rule 144A"), in transactions under Rule 144A, and to a limited number of
institutional "accredited investors" ("Accredited Investors"), as defined in
Rule 501(a)(1), (2), (3) and (7) under Regulation D of the Securities Act, in
private sales exempt from registration under the Securities Act, and outside the
United States to certain persons in reliance on Regulation S under the
Securities Act.
The Initial Purchasers and their direct and indirect transferees of
the Notes will be entitled to the benefits of the Registration Rights Agreement
dated as of the Closing Date among the parties hereto (the "Registration Rights
Agreement") pursuant to which the Obligors have agreed, among other things, to
file (i) a registration statement (the "Registration Statement") with the
Commission registering the Notes or the Exchange Notes (as defined in the
Registration Rights Agreement) under the Securities Act or (ii) a shelf
registration statement pursuant to Rule 415 under the Securities Act relating to
the resale of the Notes by holders thereof or, if applicable, relating to the
resale of Private Exchange Notes (as defined in the Registration Rights
Agreement) by the Initial Purchasers
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pursuant to an exchange of the Notes for Private Exchange Notes.
The Securities, the Indenture, the Registration Rights Agreement and
this Agreement are herein collectively referred to as the "Basic Documents".
ACME Television Holdings, LLC, a Delaware limited liability company
("ACME Parent"), has entered into an acquisition agreement dated July 29, 1997
(the "St. Louis Acquisition Agreement") pursuant to which the Company has agreed
to acquire (the "St. Louis Acquisition") Station KPLR, St. Louis, Missouri (the
"St. Louis Station") and in connection therewith the Company has entered into a
local marketing agreement with respect to the St. Louis Station (the "St. Louis
LMA") (each as described in the Final Memorandum). In addition, the Company or
one of the Guarantors, as the case may be, has entered into (i) an agreement
dated August 22, 1997 (the "Salt Lake City Acquisition Agreement") to construct
and acquire (the "Salt Lake City Acquisition") a new television broadcast
station in Salt Lake City, Utah (the "Salt Lake City Station") (each as
described in the Final Memorandum), (ii) an agreement dated August 22, 1997 (the
"Albuquerque Acquisition Agreement") to construct and acquire (the "Albuquerque
Acquisition") a new television broadcast station in Albuquerque, New Mexico (the
"Albuquerque Station") (each as described in the Final Memorandum) and (iii) an
agreement dated May 28, 1997 (the "Knoxville Acquisition") to upgrade the studio
and transmitting capabilities and acquire (the "Knoxville Acquisition") Station
▇▇▇▇, Knoxville, Tennessee (the "Knoxville Station") (each as described in the
Final Memorandum). The St. Louis Acquisition Agreement, the Salt Lake City
Acquisition Agreement, the Albuquerque Acquisition Agreement and the Knoxville
Acquisition Agreement are collectively referred to herein as the "Acquisition
Agreements." The St. Louis Acquisition, the Salt Lake City Acquisition, the
Albuquerque Acquisition and the Knoxville Acquisition are collectively referred
to herein as the "Acquisitions." The St. Louis Station, the Salt Lake City
Station, the Albuquerque Station and the Knoxville Station are collectively
referred to herein as the "Acquisition Stations."
On the Closing Date, prior to or simultaneously with the closing
hereunder, (i) ACME Parent will make a capital contribution to ACME Intermediate
Holdings, LCC, a Delaware limited liability company ("ACME Intermediate"), of
$21.7 million, which ACME Intermediate will simultaneously contribute to the
capital of the Company (the "Parent Equity Contribution"), and (ii) ACME
Intermediate will make an additional capital contri-
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bution to the Company of $38.2 million (the "Intermediate Equity Contribution").
The offer, purchase and sale of the Securities as contemplated by this
Agreement, the consummation of the Revolving Credit Facility and the Capital
Lease Facilities (each as defined and described in the Final Memorandum), the
Parent Equity Contribution, the Intermediate Equity Contribution, the St. Louis
LMA and the Acquisitions are collectively referred to herein as the
"Transactions."
2. REPRESENTATIONS AND WARRANTIES OF THE OBLIGORS. The
Obligors, jointly and severally, represent and warrant to and agree with each
Initial Purchaser that:
(a) Neither the Preliminary Memorandum as of the date thereof nor
the Final Memorandum nor any amendment or supplement thereto as of the
date thereof and at all times subsequent thereto up to the Closing Date
contained or contains any untrue statement of a material fact or omitted
or omits to state a material fact necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading, except that the representations and warranties set forth in
this Section 2 do not apply to statements or omissions made in reliance
upon and in conformity with information relating to the Initial Purchasers
furnished to the Company in writing by the Initial Purchasers expressly
for use in the Preliminary Memorandum, the Final Memorandum or any
amendment or supplement thereto.
(b) Each of the Company and its subsidiaries set forth in EXHIBIT
A-2 hereto (the "Subsidiaries") has been duly incorporated or otherwise
organized and each of the Company and the Subsidiaries is validly existing
and in good standing as a corporation, limited partnership or limited
liability company, as the case may be, under the laws of its jurisdiction
of incorporation or organization, with the requisite corporate or other
power and authority to own its properties and conduct its business as now
conducted as described in the Final Memorandum and is duly qualified to do
business as a foreign corporation, limited partnership or limited
liability company, as the case may be, in good standing in all other
jurisdictions where the ownership or leasing of its properties or the
conduct of its business requires such qualification, except where the
failure to be so qualified would not, individually or in the aggregate,
have a material adverse effect on the gen-
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eral affairs, management, business, condition (financial or other),
properties, prospects or results of operations of the Company and the
Subsidiaries, taken as a whole, both before and after giving effect to
each of the Acquisitions (any such event, a "Material Adverse Effect"); as
of the Closing Date, the Company will have the authorized, issued and
outstanding capitalization set forth in the Final Memorandum (or, if the
Final Memorandum is not in existence, the most recent Preliminary
Memorandum); except as set forth in EXHIBIT A-2 hereto, the Company does
not have any subsidiaries or own directly or indirectly any of the capital
stock or other equity or long-term debt securities of or have any equity
interest in any other person; all of the outstanding shares of capital
stock, partnership interests or membership units, as the case may be, of
the Company and the Subsidiaries have been duly authorized and validly
issued, are fully paid and nonassessable and were not issued in violation
of any preemptive or similar rights and, except as disclosed in the Final
Memorandum, all of the outstanding shares of capital stock, partnership
interests or membership units, as the case may be, of the Subsidiaries are
owned, directly or indirectly, by the Company free and clear of all liens,
encumbrances, equities and restrictions on transferability (other than
those imposed by the Securities Act and the state securities or "Blue Sky"
laws) or voting; except as set forth in the Final Memorandum, no options,
warrants or other rights to purchase from the Company or any Subsidiary,
agreements or other obligations of the Company or any Subsidiary to issue
or other rights to convert any obligation into, or exchange any securities
for, shares of capital stock, partnership interests or membership units
of, or ownership interests in, the Company or any Subsidiary are
outstanding and no holder of securities of the Company or any Subsidiary
is entitled to have such securities registered under the Registration
Statement; and except as set forth in the Final Memorandum, there is no
agreement, understanding or arrangement among the Company or any
Subsidiary and each of their respective stockholders, partnership interest
holders or membership unit holders, as the case may be, or any other
person relating to the ownership or disposition of any capital stock,
partnership interests or membership units of the Company or any Subsidiary
or the election of directors or similar officers of the Company or any
Subsidiary or the governance of the Company's or any Subsidiary's affairs,
and, if any, such agreements, understandings and arrangements will not be
breached or violated as a result of the execution and delivery of, or the
consum-
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▇▇▇▇▇▇ of the transactions contemplated by, the Basic Documents or the
consummation of any of the other Transactions.
(c) Each of the Obligors has the requisite organizational power and
authority to execute, deliver and perform its obligations under the
Securities. The Notes have been duly and validly authorized by the Issuers
for issuance and, when executed by the Issuers and authenticated by the
Trustee in accordance with the provisions of the Indenture, and delivered
to and paid for by the Initial Purchasers in accordance with the terms
hereof, will have been duly executed, issued and delivered and will
constitute valid and legally binding obligations of the Issuers, entitled
to the benefits of the Indenture and enforceable against the Issuers in
accordance with their terms except that the enforcement thereof may be
limited by
(i) bankruptcy, insolvency, reorganization, moratorium or other
similar laws now or hereafter in effect relating to or affecting
creditors' rights generally or (ii) general principles of equity and the
discretion of the court before which any proceeding therefor may be
brought (regardless of whether such enforcement is considered in a
proceeding at law or in equity) (collectively, the "Enforceability
Exceptions"); the Guarantees endorsed on the Notes have each been duly and
validly authorized by each of the Guarantors and, when the Notes are
executed by the Issuers and authenticated by the Trustee in accordance
with the provisions of the Indenture, and delivered to and paid for by the
Initial Purchasers in accordance with the terms hereof, will have been
duly executed, issued and delivered and will constitute valid and legally
binding obligations of the Guarantors, entitled to the benefits of the
Indenture and enforceable against the Guarantors in accordance with their
terms, except that the enforcement thereof may be limited by the
Enforceability Exceptions; the Securities are in the form contemplated by
the Indenture.
(d) Each of the Obligors has the requisite corporate power and
authority to execute, deliver and perform its obligations under the
Indenture. The Indenture has been duly and validly authorized by the
Obligors and meets the requirements for qualification under the Trust
Indenture Act of 1939, as amended (the "Trust Indenture Act"), and, when
executed and delivered by the Obligors (assuming the due authorization,
execution and delivery by the Trustee), will constitute a valid and
legally binding agreement of
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the Obligors, enforceable against the Obligors in accordance with its
terms, except that the enforcement thereof may be limited by the
Enforceability Exceptions.
(e) Each of the Obligors has the requisite organizational power and
authority to execute, deliver and perform its obligations under this
Agreement. This Agreement has been duly and validly authorized by the
Obligors and, when executed and delivered by the Obligors, will constitute
a valid and legally binding agreement of the Obligors, enforceable against
the Obligors in accordance with its terms, except that the enforcement
thereof may be limited by the Enforceability Exceptions and except as any
rights to indemnity or contribution hereunder may be limited by federal
and state securities laws and public policy considerations.
(f) Each of the Obligors has the requisite organizational power and
authority to execute, deliver and perform its obligations under the
Registration Rights Agreement. The Registration Rights Agreement has been
duly and validly authorized by the Obligors and, when executed and
delivered by the Obligors, will constitute a valid and legally binding
agreement of the Obligors, enforceable against the Obligors in accordance
with its terms, except that the enforcement thereof may be limited by the
Enforceability Exceptions and except as any rights to indemnity or
contribution hereunder may be limited by federal and state securities laws
and public policy considerations. The Securities, the Indenture and the
Registration Rights Agreement conform in all material respects to the
descriptions thereof in the Final Memorandum.
(g) Each of the Limited Liability Company Agreement and Investors
Agreement of ACME Parent conforms in all material respects to the
description thereof in the Final Memorandum.
(h) (i) The Issuers have delivered to the Initial Purchasers a true
and correct copy of each of the Acquisition Agreements and the St. Louis
LMA, together with all related agreements and all schedules and exhibits
thereto, and as of the date hereof there have been no material amendments,
alterations, modifications or waivers of any of the provisions of any of
the Acquisition Agreements or the St. Louis LMA since their date of
execution or from the form in which any such agreement has been delivered
to the Initial Purchasers except for any such amendment,
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modification or waiver a copy of which has been delivered to the Initial
Purchasers; and (ii) there exists as of the date hereof (after giving
effect to the transactions contemplated by each of the Basic Documents and
the other Transactions) no event or condition that would constitute a
default or an event of default by any of the Obligors under any of the
Acquisition Agreements or the St. Louis LMA that would result in a
Material Adverse Effect or materially adversely affect the ability of the
Company to consummate any of the Transactions.
(i) Except as disclosed in the Final Memorandum (including the
absence of FCC approvals with respect to the Station Acquisitions), no
consent, approval, authorization, license, qualification, exemption or
order of any court or governmental agency or body or third party is
required for the performance of any of the Basic Documents by any of the
Obligors or for the consummation of any of the other Transactions, except
as has already been acquired or as may be required under state securities
or "Blue Sky" laws in connection with the purchase and distribution of the
Securities by the Initial Purchasers; all such consents, approvals,
authorizations, licenses, qualifications, exemptions and orders set forth
in the Final Memorandum which are required to be obtained by the Closing
Date have been obtained or made, as the case may be, and are in full force
and effect and not the subject of any pending or, to the best knowledge of
the Obligors, threatened attack by appeal or direct proceeding or
otherwise.
(j) None of the Company or any of the Subsidiaries is (i) in
violation of its certificate of incorporation or bylaws (or similar
organizational document), (ii) in breach or violation of any statute,
judgment, decree, order, rule or regulation applicable to it or any of its
properties or assets, which breach or violation would, individually or in
the aggregate, have a Material Adverse Effect, or (iii) in default (nor
has any event occurred which with notice or passage of time, or both,
would constitute a default) in the performance or observance of any
obligation, agreement, covenant or condition contained in any contract,
indenture, mortgage, deed of trust, loan agreement, note, lease, license,
franchise agreement, permit, certificate or agreement or instrument to
which it is a party or to which it is subject, which default could,
individually or in the aggregate, have a Material Adverse Effect.
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(k) (x) The execution, delivery and performance of Basic Documents
by the Obligors and (y) except for receipt of applicable final
governmental and regulatory approvals relating to the consummation of the
Acquisitions which have not yet been obtained, the consummation of the
other Transactions will not (a) violate, conflict with or constitute or
result in a breach of or a default under (or an event that, with notice or
lapse of time, or both, would constitute a breach of or a default under)
any of (i) the terms or provisions of any contract, indenture, mortgage,
deed of trust, loan agreement, note, lease, license, franchise agreement,
permit, certificate or agreement or instrument to which any of the Company
or any of the Subsidiaries is a party or to which any of their respective
properties or assets are subject, (ii) the certificate of incorporation or
bylaws of any of the Company or any of the Subsidiaries (or similar
organizational document) or (iii) (assuming compliance with all applicable
state securities or "Blue Sky" laws) any statute, judgment, decree, order,
rule or regulation of any court or governmental agency or other body
applicable to the Company or any of the Subsidiaries or any of their
respective properties or assets or (b) except as disclosed in the Final
Memorandum, result in the imposition of any lien upon or with respect to
any of the properties or assets now owned or hereafter acquired by the
Company or any of the Subsidiaries, which violation, conflict, breach,
default or lien could, individually or in the aggregate, have a Material
Adverse Effect.
(l) The audited consolidated financial statements included in the
Final Memorandum present fairly the consolidated financial position,
results of operations and cash flows of such entities at the dates and for
the periods to which they relate and have been prepared in accordance with
generally accepted accounting principles applied on a consistent basis;
the interim unaudited consolidated financial statements included in the
Final Memorandum present fairly the consolidated financial position,
results of operations and cash flows of such entities at the dates and for
the periods to which they relate subject to year-end audit adjustments and
have been prepared in accordance with generally accepted accounting
principles applied on a consistent basis with the audited consolidated
financial statements included therein; the summary and selected financial
and statistical data included in the Final Memorandum present fairly the
information shown therein and have been prepared and compiled on a basis
9
consistent with the audited financial statements included therein, except
as otherwise stated therein; and the auditors which have examined certain
of such financial statements as set forth in their reports included in the
Final Memorandum are an independent public accounting firm as required by
the Securities Act.
(m) The pro forma financial statements and other pro forma financial
information (including the notes thereto) included in the Final Memorandum
(A) have been prepared in accordance with applicable requirements of
Regulation S-X promulgated under the Securities Exchange Act of 1934, as
amended (together with the rules and regulations of the Commission
promulgated thereunder, the "Exchange Act") (other than the information
under the caption "Projected Financial Data"), and (B) have been properly
computed on the bases described therein; and the assumptions used in the
preparation of the pro forma financial statements and other pro forma
financial information included in the Final Memorandum are reasonable and
the adjustments used therein are appropriate to give effect to the
transactions or circumstances referred to therein. The Company believes
that the assumptions used in the preparation of the Projected Financial
Data included in the Final Memorandum are reasonable.
(n) Except as described in the Final Memorandum, there is not
pending or, to the best knowledge of the Obligors, threatened any action,
suit, proceeding, inquiry or investigation, governmental or otherwise, to
which any of the Company or any of the Subsidiaries is a party, or to
which their respective properties or assets or, to the knowledge of the
Obligors, any of the Acquisition Stations are subject, before or brought
by any court, arbitrator or governmental agency or body, that, if
determined adversely to the Company or any such Subsidiary or with respect
to any such Acquisition Station could, individually or in the aggregate,
have a Material Adverse Effect or that seeks to restrain, enjoin, prevent
the consummation of or otherwise challenge any of the Transactions.
(o) None of the Company or any of the Subsidiaries has, and, after
giving effect to the Transactions, will not have, any liability for any
prohibited transaction or funding deficiency or any complete or partial
withdrawal liability with respect to any pension, profit sharing or other
plan which is subject to the Employee Retirement Income Security Act of
1974, as amended ("ERISA"), to which
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any of the Company or any of the Subsidiaries makes or ever has made a
contribution or in which any employee of any of the Company or the
Subsidiaries or, to the knowledge of the Obligors, any employee of an
Acquisition Station is or has ever been a participant. With respect to
such plans, the Company and any of the Subsidiaries are, and, after giving
effect to the Transactions, will be, in compliance in all material
respects with all provisions of ERISA.
(p) Except as described in the Final Memorandum, the Company and the
Subsidiaries own or possess adequate licenses or other rights to use all
patents, trademarks, service marks, trade names, copyrights and know-how
that are necessary to conduct their business as described in the Final
Memorandum. None of the Company or any of the Subsidiaries has received
any notice of infringement of or conflict with (or knows of any such
infringement of or conflict with) asserted rights of others with respect
to any patents, trademarks, service marks, trade names, copyrights or
know-how that, if such assertion of infringement or conflict were
sustained, would, individually or in the aggregate, have a Material
Adverse Effect.
(q) Except as described in the Final Memorandum (including the
absence of FCC approvals with respect to the Station Acquisitions), each
of the Company and the Subsidiaries possesses all licenses, permits,
certificates, consents, orders, approvals and other authorizations from,
and has made all declarations and filings with, all federal, state, local
and other governmental authorities, all self-regulatory organizations and
all courts and other tribunals presently required or necessary to own or
lease, as the case may be, and to operate its respective properties and to
carry on its respective businesses as now or proposed to be conducted as
set forth in the Final Memorandum ("Permits"), except where the failure to
obtain such Permits would not, individually or in the aggregate, have a
Material Adverse Effect; each of the Company and the Subsidiaries has
fulfilled and performed all of its obligations with respect to such
Permits and no event has occurred which allows, or after notice or lapse
of time would allow, revocation or termination thereof or results in any
other material impairment of the rights of the holder of any such Permit;
and none of the Company or the Subsidiaries has received any notice of any
proceeding relating to revocation or modification of any such Permit,
except as described in the Final Memorandum and except
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where such revocation or modification would not, individually or in the
aggregate, have a Material Adverse Effect.
(r) Subsequent to the respective dates as of which information is
given in the Final Memorandum and except as described therein, (i) the
Company, the Subsidiaries and, to the knowledge of the Obligors, the
Acquisition Stations have not incurred any material liabilities or
obligations, direct or contingent, or entered into any material
transactions, in either case whether or not in the ordinary course of
business, (ii) the Company and the Subsidiaries have not purchased any of
their respective outstanding capital stock, or declared, paid or otherwise
made any dividend or distribution of any kind on any of their respective
capital stock or otherwise (other than, with respect to any of such
Subsidiaries, the purchase of, or dividend or distribution on, capital
stock owned by the Company) and (iii) there shall not have been any change
in the capital stock or long-term indebtedness of the Company or any of
the Subsidiaries.
(s) There are no legal or governmental proceedings, nor are there
any contracts or other documents that would be required by the Securities
Act to be described in a prospectus relating to the Securities that are
not described in the Final Memorandum.
(t) None of the Company or the Subsidiaries has taken or will take
any action that would cause this Agreement or the issuance or sale of the
Securities to violate Regulation G, T, U or X of the Board of Governors of
the Federal Reserve System, in each case as in effect, or as the same may
hereafter be in effect, on the Closing Date.
(u) Each of the Company and the Subsidiaries has good and marketable
title to all real property described in the Final Memorandum as being
owned by it and good and marketable title to the leasehold estate in the
real property described therein as being leased by it, free and clear of
all liens, charges, encumbrances or restrictions, except, in each case, as
described in the Final Memorandum or such as would not, individually or in
the aggregate, have a Material Adverse Effect. All leases, contracts and
agreements, including those referred to in the Final Memorandum to which
the Company or any of the Subsidiaries is a party or by which any of them
is bound are valid and enforceable against the Company or any such
Subsidiary except that the enforcement thereof may be limited by
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(i) bankruptcy, insolvency, reorganization, moratorium or other
similar laws now or hereafter in effect relating to or affecting
creditors' rights generally or (ii) general principles of equity and the
discretion of the court before which any proceeding therefor may be
brought (regardless of whether such enforcement is considered in a
proceeding at law or in equity) (collectively, the "Enforceability
Exceptions"), and are, to the knowledge of the Obligors, valid and
enforceable against the other party or parties thereto (subject to the
Enforceability Exceptions) and are in full force and effect.
(v) Each of the Company and the Subsidiaries has filed all necessary
federal, state and foreign income and franchise tax returns, except where
the failure to so file such returns would not, individually or in the
aggregate, have a Material Adverse Effect, and have paid all taxes shown
as due thereon; and other than tax deficiencies which the Company or any
Subsidiary is contesting in good faith and for which adequate reserves
have been provided in accordance with generally accepted accounting
principles, there is no tax deficiency that has been asserted against the
Company or any Subsidiary that would, individually or in the aggregate,
have a Material Adverse Effect.
(w) (i) To the best knowledge of the Company, immediately after the
consummation of the Transactions, the fair value and present fair salable
value of the assets of each of the Obligors will exceed the sum of its
stated liabilities and identified contingent liabilities; and (ii) each of
the Obligors is not, nor will it be, after giving effect to the
consummation of the Transactions, (a) left with unreasonably small capital
with which to carry on its business as it is proposed to be conducted, (b)
unable to pay its debts (contingent or otherwise) as they mature or (c)
otherwise insolvent.
(x) Except as disclosed in the Final Memorandum and except as would
not, individually or in the aggregate, have a Material Adverse Effect, (A)
each of the Company, the Subsidiaries and to the knowledge of the
Obligors, the Acquisition Stations is in compliance with all applicable
Environmental Laws, (B) each of the Company, the Subsidiaries and to the
knowledge of the Obligors, the Acquisition Stations has made all filings
and provided all notices required under any applicable Environmental Law,
and has all permits, authorizations and approvals required to
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be in effect as of the date hereof under any applicable Environmental Laws
and is in compliance with their requirements, (C) there is no civil,
criminal or administrative action, suit, demand, claim, hearing, notice of
violation, investigation, proceeding, notice or demand letter or request
for information pending or, to the knowledge of the Obligors, threatened
against the Company, any of the Subsidiaries or, to the knowledge of the
Obligors, any of the Acquisition Stations under any Environmental Law, (D)
no lien, charge, encumbrance or restriction has been recorded under any
Environmental Law with respect to any assets, facility or property owned,
operated, leased or controlled by the Company or any of the Subsidiaries
or, to the knowledge of the Obligors, any of the Acquisition Stations, (E)
neither the Company nor any of the Subsidiaries nor, to the knowledge of
the Obligors, any of the Acquisition Stations has received notice that it
has been identified as a potentially responsible party under the
Comprehensive Environmental Response, Compensation and Liability Act of
1980, as amended ("CERCLA") or any comparable state law, and (F) no
property or facility of the Company or any of the Subsidiaries or, to the
knowledge of the Obligors, any of the Acquisition Stations is (i) listed
or proposed for listing on the National Priorities List under CERCLA or
(ii) listed in the Comprehensive Environmental Response, Compensation,
Liability Information System List promulgated pursuant to CERCLA, or on
any comparable list maintained by any state or local governmental
authority.
For purposes of this Agreement, the following terms shall have the
following meanings: "Environmental Law" means any federal, state, local or
municipal statute, law, rule, regulation, ordinance, code, policy or rule
of common law and any judicial or administrative interpretation thereof,
including any judicial or administrative order, consent decree or judgment
binding on any of the Company or the Subsidiaries or, to the knowledge of
the Obligors, any of the Acquisition Stations, relating to pollution or
protection of the environment or health or safety or any chemical,
material or substance, that is subject to regulation thereunder.
"Environmental Claims" means any and all administrative, regulatory or
judicial actions, suits, demands, demand letters, claims, notices of
responsibility, information requests, liens, notices of noncompliance or
violation, investigations or proceedings relating in any way to any
Environmental Law.
14
(y) None of the Company or the Subsidiaries is, or immediately after
the Closing Date will be, required to register as an "investment company"
or a company "controlled by " an "investment company" within the meaning
of the Investment Company Act of 1940, as amended.
(z) None of the Company or the Subsidiaries or any of such entities'
directors, officers, employees, agents or controlling persons has taken,
directly or indirectly, any action designed, or that might reasonably be
expected, to cause or result, under the Securities Act or otherwise, in,
or that has constituted, stabilization or manipulation of the price of the
Securities.
(aa) None of the Company, the Subsidiaries or any of their
respective Affiliates (as defined in Rule 501(b) of Regulation D under the
Securities Act) directly, or through any agent, (i) sold, offered for
sale, solicited offers to buy or otherwise negotiated in respect of any
"security" (as defined in the Securities Act) which is or could be
integrated with the sale of the Securities in a manner that would require
the registration under the Securities Act of the Securities or (ii)
engaged in any form of general solicitation or general advertising (as
those terms are used in Regulation D under the Securities Act) in
connection with the offering of the Securities or in any manner involving
a public offering within the meaning of Section 4(2) of the Securities
Act. Assuming (i) the accuracy of the representations and warranties of
the Initial Purchasers in Section 9 hereof, it is not necessary in
connection with the offer, sale and delivery of the Securities to the
Initial Purchasers in the manner contemplated by this Agreement to
register any of the Securities under the Securities Act or to qualify the
Indenture under the Trust Indenture Act.
(bb) No securities of any Obligor are of the same class (within the
meaning of Rule 144A under the Securities Act) as the Securities and
listed on a national securities exchange registered under Section 6 of the
Exchange Act, or quoted in a U.S. automated inter-dealer quotation system.
(cc) Except as set forth in the Final Memorandum, there is no
strike, labor dispute, slowdown or work stoppage with the employees of the
Company or any of the Subsidiaries or, to the knowledge of the Obligors,
of any of
15
the Acquisition Stations which is pending or, to the best knowledge of the
Obligors threatened.
(dd) Each of the Company and the Subsidiaries and, to the knowledge
of the Obligors, the Acquisition Stations carries insurance (including
self-insurance) in such amounts and covering such risks as in its
reasonable determination is adequate for the conduct of its business and
the value of its properties.
(ee) Each of the Company and the Subsidiaries and, to the knowledge
of the Obligors, the Acquisition Stations (i) makes and keeps accurate
books and records and (ii) maintains internal accounting controls which
provide reasonable assurance that (A) transactions are executed in
accordance with management's authorization, (B) transactions are recorded
as necessary to permit preparation of its financial statements and to
maintain accountability for its assets, (C) access to its assets is
permitted only in accordance with management's authorization and (D) the
reported accountability for its assets is compared with existing assets at
reasonable intervals.
(ff) No holder of securities of the Company or any Subsidiary will
be entitled to have such securities registered under the registration
statements required to be filed by the Company pursuant to the
Registration Rights Agreement other than as expressly permitted thereby.
(gg) The statistical and market and industry-related data included
in the Final Memorandum are based on or derived from sources which the
Obligors believe to be reliable and accurate or represent the Obligors'
good faith estimates that are made on the basis of data derived from such
sources.
(hh) Except as stated in the Final Memorandum, the Obligors do not
know of any claims for services, either in the nature of a finder's fee or
financial advisory fee, with respect to the offering of the Securities or
any of the other Transactions.
(ii) None of the Company, the Subsidiaries, any of their respective
Affiliates or any person acting on its or their behalf (other than the
Initial Purchasers) has engaged in any directed selling efforts (as that
term is defined in Regulation S under the Securities Act ("Regulation S"))
with respect to the Securities and the Company,
16
the Subsidiaries and their respective Affiliates and any person acting on
its or their behalf have acted in accordance with the offering
restrictions requirement of Regulation S.
Any certificate signed by any officer of the Company or any
Subsidiary and delivered to any Initial Purchaser or to counsel for the Initial
Purchasers shall be deemed a joint and several representation and warranty by
the Obligors to each Initial Purchaser as to the matters covered thereby.
3. PURCHASE, SALE AND DELIVERY OF THE SECURITIES. On the basis of
the representations, warranties, agreements and covenants herein contained and
subject to the terms and conditions herein set forth, the Issuers agree to issue
and sell to the Initial Purchasers, and each Initial Purchaser, acting severally
and not jointly, agree to purchase from the Issuers, the Notes in the respective
principal amounts set forth at maturity on SCHEDULE 1 hereto, at 70.433% of
their principal amount at maturity.
One or more certificates in definitive form for the Notes and the
related Guarantees that the Initial Purchasers have severally agreed to purchase
hereunder, and in such denomination or denominations and registered in such name
or names as the Initial Purchasers request upon notice to the Company at least
48 hours prior to the Closing Date (as defined) shall be delivered by or on
behalf of the Company, against payment by or on behalf of the Initial
Purchasers, of the purchase price therefor by wire transfer of immediately
available funds to the account of the Company previously designated by it in
writing. Such delivery of and payment for the Notes and the related Guarantees
shall be made at the offices of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, at 9:00 A.M., New York time, on September 30, 1997, or at
such date as the Initial Purchasers and the Company may agree upon, such time
and date of delivery against payment being herein referred to as the "Closing
Date." The Company will make such certificate or certificates for the Notes and
the related Guarantees available for checking and packaging by the Initial
Purchasers at the offices in New York, New York of CIBC Wood Gundy Securities
Corp. at least 24 hours prior to the Closing Date.
4. OFFERING BY THE INITIAL PURCHASERS. The Initial Purchasers
propose to make an offering of the Securities at the price and upon the terms
set forth in the Final Memorandum as soon as practicable after this Agreement is
entered into and as in the judgment of the Initial Purchasers is advisable.
17
5. CERTAIN COVENANTS. The Obligors jointly and severally
covenant and agree with the Initial Purchasers that:
(i) The Obligors will not amend or supplement the Final Memorandum
or any amendment or supplement thereto of which the Initial Purchasers
shall not have been advised and furnished a copy for a reasonable period
of time prior to the proposed amendment or supplement and as to which the
Initial Purchasers shall not have given their consent (which consent shall
not be unreasonably withheld). The Obligors will promptly, upon the
reasonable request of the Initial Purchasers or counsel for the Initial
Purchasers, make any amendments or supplements to the Preliminary
Memorandum or the Final Memorandum that may be necessary in connection
with the resale of the Securities by the Initial Purchasers.
(ii) The Obligors will cooperate with the Initial Purchasers in
arranging for the qualification of the Securities for offering and sale
under the securities or "Blue Sky" laws of such jurisdictions as the
Initial Purchasers may designate and will continue such qualifications in
effect for as long as may be necessary to complete the resale of the
Securities by the Initial Purchasers; PROVIDED, HOWEVER, that in
connection therewith none of the Obligors shall be required to qualify as
a foreign corporation or to execute a general consent to service of
process in any jurisdiction or to take any other action that would subject
it to general service of process or to taxation in excess of a nominal
amount in respect of doing business in any jurisdiction in which it is not
otherwise subject.
(iii) If, at any time prior to the completion of the resale by the
Initial Purchasers of the Securities, any event shall occur as a result of
which it is necessary, in the reasonable opinion of counsel for the
Initial Purchasers, to amend or supplement the Final Memorandum in order
to make such Final Memorandum not misleading in the light of the
circumstances existing at the time it is delivered to a purchaser, or if
for any other reason it shall be necessary to amend or supplement the
Final Memorandum in order to comply with applicable laws, rules or
regulations, the Obligors shall (subject to Section 5(i)) forthwith amend
or supplement such Final Memorandum at their own expense so that, as so
amended or supplemented, such Final Memorandum will not include an untrue
statement of a material fact or omit to state a material fact necessary
18
in order to make the statements therein, in the light of the circumstances
existing at the time it is delivered to a purchaser, not misleading and
will comply with all applicable laws, rules or regulations.
(iv) The Obligors will, without charge, provide to the Initial
Purchasers and to counsel for the Initial Purchasers as many copies of
each Preliminary Memorandum or Final Memorandum or any amendment or
supplement thereto as they may reasonably request.
(v) None of the Obligors or any of their respective Affiliates will
sell, offer for sale or solicit offers to buy or otherwise negotiate in
respect of any "security" (as defined in the Securities Act) which could
be integrated with the sale of the Securities in a manner which would
require the registration under the Securities Act of the Securities.
(vi) For so long as any of the Securities remain outstanding, the
Company will furnish to the Initial Purchasers (a) as soon as available, a
copy of each report or other communication (financial or otherwise) of the
Company mailed to the Trustee or holders of the Securities or holders of
other publicly traded securities of the Company or filed with the
Commission or any national securities exchange on which any class of
securities of the Company may be listed, and (b) from time to time such
other information concerning the Obligors as the Initial Purchasers may
reasonably request.
(vii) The Company will apply the net proceeds from the sale of the
Securities as set forth under "Use of Proceeds" in the Final Memorandum.
(viii) Prior to the Closing Date, the Company will furnish to the
Initial Purchasers, as soon as they have been prepared by or are available
to the Company, a copy of any unaudited interim consolidated financial
statements of the Company and the Subsidiaries, for any period subsequent
to the period covered by the most recent financial statements appearing in
the Final Memorandum.
(ix) The Company will not, and will not permit any of Subsidiaries
to, engage in any form of general solicitation or general advertising (as
those terms are used in Regulation D under the Securities Act) in
connection with the offering of the Securities or in any manner involving
19
a public offering of the Securities within the meaning of Section 4(2) of
the Securities Act.
(x) For so long as any of the Securities remain outstanding, the
Company will make available at its expense, upon request, to any holder of
Securities and any prospective purchasers thereof the information
specified in Rule 144A(d)(4) under the Securities Act, unless the Company
is then subject to Section 13 or 15(d) of the Exchange Act.
(xi) The Obligors will use their best efforts to (i) permit the
Securities to be designated PORTAL securities in accordance with the rules
and regulations adopted by the National Association of Securities Dealers,
Inc. (the "NASD") relating to trading in the Private Offerings, Resales
and Trading through Automated Linkages market (the "Portal Market") and
(ii) permit the Securities to be eligible for clearance and settlement
through The Depository Trust Company.
(xii) In connection with Securities offered and sold in an offshore
transaction (as defined in Regulation S), the Obligors will not register
any transfer of such Securities not made in accordance with the provisions
of Regulation S and will not, except in accordance with the provisions of
Regulation S, if applicable, issue any such Securities in the form of
definitive securities.
(xiii) If this Agreement shall terminate or shall be terminated after
execution pursuant to any provision hereof (other than by reason of a
default or omission by the Initial Purchasers of their obligations
hereunder) or if this Agreement shall be terminated by the Initial
Purchasers because of any failure or refusal on the part of the Obligors
to comply with the terms or fulfill any of the conditions of this
Agreement, the Obligors, jointly and severally, agree to reimburse the
Initial Purchasers for all reasonable out-of-pocket expenses (including
fees and expenses of counsel for the Initial Purchasers) incurred by the
Initial Purchasers in connection herewith, but in no event will the
Obligors be liable to the Initial Purchasers for damages on account of
loss of anticipated profits from the sale of the Securities.
6. EXPENSES. Notwithstanding any termination of this Agreement
(pursuant to Section 11 or otherwise), the Obligors, jointly and severally,
agree to pay the following costs
20
and expenses and all other costs and expenses incident to the performance by the
Obligors of their obligations hereunder: (i) the negotiation, preparation,
printing, typing, reproduction, execution and delivery of this Agreement and of
the other Basic Documents, any amendment or supplement to or modification of any
of the foregoing and any and all other documents furnished pursuant hereto or
thereto or in connection herewith or therewith; (ii) the preparation, printing
or reproduction of each Preliminary Memorandum, the Final Memorandum and each
amendment or supplement to any of them; (iii) the printing (or reproduction) and
delivery (including postage, air freight charges and charges for counting and
packaging) of such copies of each Preliminary Memorandum, the Final Memorandum
and all amendments or supplements to any of them as may be reasonably requested
for use in connection with the offering and sale of the Securities; (iv) the
preparation, printing, authentication, issuance and delivery of certificates for
the Notes and the related Guarantees, including any stamp taxes in connection
with the original issuance and sale of the Securities and trustees' fees; (v)
the reproduction and delivery of this Agreement and the other Basic Documents,
the preliminary and supplemental "Blue Sky" memoranda and all other agreements
or documents reproduced and delivered in connection with the offering of the
Securities; (vi) the registration or qualification of the Securities for offer
and sale under the securities or Blue Sky laws of the several states (including
filing fees and the fees, expenses and disbursements of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇,
counsel to the Initial Purchasers, relating to such registration and
qualification); (vii) the transportation and other expenses incurred by or on
behalf of Company representatives in connection with presentations to
prospective purchasers of the Securities; (viii) the fees and expenses of the
Company's and the St. Louis Station's accountants and the fees and expenses of
counsel (including local and special counsel) for the Obligors; (ix) fees and
expenses of the Trustee including fees and expenses of its counsel; (x) all
expenses and listing fees incurred in connection with the application for
quotation of the Securities on the PORTAL Market; and (xi) any fees charged by
investment rating agencies for the rating of the Securities.
Subject to the completion of the closing hereunder, as adjustments
to the foregoing paragraph, (a) the Obligors will not be required to reimburse
the out-of-pocket expenses of the Initial Purchasers, except for 50% of the
airplane expenses relating to item (vii), above, and (b) $185,000.00 will be
credited against the expenses otherwise attributable to the Obligors.
21
7. CONDITIONS OF THE INITIAL PURCHASERS' OBLIGATIONS. The obligation
of each Initial Purchaser to purchase and pay for the Securities is subject to
the accuracy of the representations and warranties contained herein, to the
performance by the Obligors of their respective covenants and agreements
hereunder and to the following additional conditions unless waived in writing by
the Initial Purchasers:
(i) The Initial Purchasers shall have received an opinion of
counsel to the Obligors in form and substance satisfactory to the Initial
Purchasers and ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, counsel to the Initial Purchasers,
dated the Closing Date, of ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP,
substantially in the form of EXHIBIT B hereto. In rendering such opinion,
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP shall have received and may rely
upon such certificates and other documents and information, including one
or more opinions of local counsel reasonably acceptable to the Initial
Purchasers and ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, counsel to the Initial Purchasers,
as they may reasonably request to pass upon such matters.
(ii) The Initial Purchasers shall have received an opinion, dated
the Closing Date, of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, counsel to the Initial
Purchasers, with respect to the sufficiency of certain legal matters
relating to this Agreement and such other related matters as the Initial
Purchasers may require. In rendering such opinion, ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇
shall have received and may rely upon such certificates and other
documents and information as they may reasonably request to pass upon such
matters. In addition, in rendering their opinion, ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇
may state that their opinion is limited to matters of New York, Delaware
corporate and federal law.
(iii) The Initial Purchasers shall have received from Coopers &
▇▇▇▇▇▇▇ L.L.P. and KPMG Peat Marwick LLP, independent public accountants
for the St. Louis Station and Channel 32, Incorporated, respectively,
"comfort" letters dated the date hereof and the Closing Date, in form and
substance reasonably satisfactory to the Initial Purchasers and ▇▇▇▇▇▇
▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, counsel to the Initial Purchasers.
(iv) The representations and warranties of the Obligors contained in
this Agreement shall be true and correct on and as of the Closing Date;
the Obligors shall have complied in all material respects with all
agreements and
22
satisfied all conditions on their part to be performed or satisfied
hereunder at or prior to the Closing Date.
(v) (a) There shall not have been any change in the capital stock
or partners or members equity of the Company or any of the Subsidiaries or
any material increase in the consolidated short-term or long-term debt of
the Company from that set forth or contemplated in the Final Memorandum
and (b) the Company, the Subsidiaries and the Acquisition Stations shall
not have any liabilities or obligations, contingent or otherwise (whether
or not in the ordinary course of business), that are material to the
Company and the Subsidiaries, taken as a whole, both before and after
giving effect to each Acquisition, other than those reflected in the Final
Memorandum.
(vi) None of the Transactions shall be enjoined (temporarily or
permanently) and no restraining order or other injunctive order with
respect thereto shall have been issued; and there shall not have been any
legal action, order, decree or other administrative proceeding instituted
or threatened against any of the Obligors or the Acquisition Stations or
against the Initial Purchasers relating to any of the Transactions.
(vii) Subsequent to the date of this Agreement and since the date of
the most recent financial statements in the Final Memorandum (exclusive of
any amendment or supplement thereto after the date hereof), there shall
not have occurred (i) any change, or any development involving a
prospective change, in or affecting the general affairs, management,
business, condition (financial or other), properties, prospects or results
of operations of the Company and the Subsidiaries, taken as a whole, both
before and after giving effect to each Acquisition, not contemplated by
the Final Memorandum that, in the opinion of the Initial Purchasers, would
materially adversely affect the market for the Securities, or (ii) any
event or development relating to or involving any of the Company or the
Subsidiaries or any of the officers or directors of the Company or the
Subsidiaries or any of the Acquisition Stations that makes any statement
made in the Final Memorandum untrue or that, in the opinion of the
Obligors and their counsel or the Initial Purchasers and their counsel,
requires the making of any addition to or change in the Final Memorandum
in order to state a material fact required by any applicable law, rule or
regulation to be
23
stated therein or necessary in order to make the statements made therein
not misleading.
(viii) The Initial Purchasers shall have received certificates, dated
the Closing Date and signed by the president and the chief financial
officer of the Company, to the effect that:
a. All of the representations and warranties of the Obligors set
forth in this Agreement are true and correct as if made on and
as of the Closing Date and the Obligors have complied in all
material respects with all agreements and satisfied all
conditions on their part to be performed or satisfied at or
prior to the Closing Date.
b. The issuance and sale of the Securities pursuant to this
Agreement and the Final Memorandum and the consummation of
the Transactions have not been enjoined (temporarily or
permanently) and no restraining order or other injunctive
order has been issued and there has not been any legal
action, order, decree or other administrative proceeding
instituted or threatened against any of the Obligors
relating to the issuance of the Securities or in connection
with any of the other Transactions.
c. Subsequent to the date of this Agreement and since the date of
the most recent financial statements in the Final Memorandum
(exclusive of any amendment or supplement thereto after the
date hereof), there has not occurred (i) any change, or any
development involving a prospective change, in or affecting
the general affairs, management, business, condition
(financial or other), properties, prospects or results of
operations of the Company and the Subsidiaries, taken as a
whole, both before and after giving effect to each
Acquisition, not contemplated by the Final Memorandum that
would materially adversely affect the market for the
Securities, or (ii) any event or development relating to or
involving any of the Company or the Subsidiaries or any of the
respective officers or directors of the Company or the
Subsidiaries or any Acquisition Station that makes any
statement made in the Final Memorandum untrue or that
24
requires the making of any addition to or change in the Final
Memorandum in order to state a material fact required by any
applicable law, rule or regulation to be stated therein or
necessary in order to make the statements made therein not
misleading.
d. (a) There has not been any change in the capital stock or
members or partners equity of the Company or any of the
Subsidiaries nor any material increase in the consolidated
short-term or long-term debt of the Company from that set
forth or contemplated in the Final Memorandum and (b) the
Company, the Subsidiaries, and the Acquisition Stations
have no liabilities or obligations, contingent or otherwise
(whether or not in the ordinary course of business), that
are material to the Company and the Subsidiaries, taken as
a whole, both before and after giving effect to our
Acquisition, other than those reflected in the Final
Memorandum.
(ix) Each of the Acquisition Agreements and the St. Louis LMA shall
be in full force and effect, and there shall have been no material
amendments, alterations, modifications or waivers of any provision thereof
since the date of this Agreement (unless consented to in writing by the
Initial Purchasers).
(x) All proceedings taken in connection with the issuance of the
Securities and the transactions contemplated by this Agreement and the
other Basic Documents and all documents and papers relating thereto shall
be reasonably satisfactory to the Initial Purchasers and counsel to the
Initial Purchasers.
(xi) ACME Parent shall have contributed and assigned to the Company
all of ACME Parent's assets and rights relating to the Acquisition
Agreement, the St. Louis LMA and the Acquisition Stations pursuant to
documents satisfactory to the Initial Purchasers and their counsel.
(xii) The Company shall have received at least $59.9 million
aggregate cash proceeds from the Intermediate Equity Contribution and the
Parent Equity Contribution.
(xiii) There shall not have been any announcement by any "nationally
recognized statistical rating organiza-
25
tion," as defined for purposes of Rule 436(g) under the Securities Act,
that (A) it is downgrading its rating assigned to any debt securities of
the Company or Acme Intermediate, or (B) it is reviewing its rating
assigned to any debt securities of the Company or Acme Intermediate with a
view to possible downgrading, or with negative implications, or direction
not determined.
(xiv) The Initial Purchasers shall have received the Registration
Rights Agreement executed by the Obligors and such agreement shall be in
full force and effect at all times from and after the Closing Date.
(xv) The Obligors shall have furnished or caused to be furnished to
the Initial Purchasers such further certificates and documents as the
Initial Purchasers shall have reasonably requested.
8. INDEMNIFICATION AND CONTRIBUTION. (a) Each Obligor jointly and
severally agrees to indemnify and hold harmless the Initial Purchasers, each
director, officer, employee or agent of any Initial Purchaser and each person,
if any, who controls any Initial Purchaser within the meaning of Section 15 of
the Securities Act or Section 20 of the Exchange Act, against any losses,
claims, damages, liabilities or expenses to which such Initial Purchaser or such
director, officer, employee, agent or controlling person may become subject
under the Securities Act, the Exchange Act or otherwise, insofar as any such
losses, claims, damages, liabilities or expenses (or actions in respect thereof)
arise out of or are based upon:
(i) any untrue statement or alleged untrue statement of any
material fact contained in any Preliminary Memorandum or the Final
Memorandum or any amendment or supplement thereto; or
(ii) the omission or alleged omission to state in any Preliminary
Memorandum or the Final Memorandum or any amendment or supplement thereto,
a material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they
were made, not misleading, and will reimburse, as incurred, the Initial
Purchasers and each such director, officer, employee, agent or controlling
person for any legal or other expenses reasonably incurred by the Initial
Purchasers or such director, officer, employee, agent or controlling
person in connection with investigating, defending against or appearing as
a third-party witness in con-
26
nection with any such loss, claim, damage, liability, expense or action;
PROVIDED, HOWEVER, that none of the Obligors will be liable in any such
case to an Initial Purchaser or any director, officer, employee, agent or
controlling person of such Initial Purchaser to the extent that any such
loss, claim, damages, liability, expense or action arises out of or is
based upon any untrue statement or alleged untrue statement or omission or
alleged omission made in any Preliminary Memorandum or the Final
Memorandum or any amendment or supplement thereto in reliance upon and in
conformity with written information furnished to the Company by or on
behalf of such Initial Purchaser specifically for use therein; and
PROVIDED, FURTHER, that none of the Obligors will be liable to any Initial
Purchaser or any director, officer, employee, agent or any person
controlling any Initial Purchaser with respect to any such untrue
statement or omission made in any Preliminary Memorandum that is corrected
in the Final Memorandum (or any amendment or supplement thereto) if the
person asserting any such loss, claim, damage, expense or liability
purchased Securities from an Initial Purchaser in reliance upon the
Preliminary Memorandum but was not sent or given a copy of the Final
Memorandum (as amended or supplemented) that was made available by the
Company to such Initial Purchaser at or prior to the written confirmation
of the sale of the Securities to such person, unless such failure to
deliver such Final Memorandum (as amended or supplemented) was a result of
noncompliance by the Obligors with Section 5(iv) of this Agreement. This
indemnity agreement will be in addition to any liability that the Obligors
may otherwise have to the indemnified parties. The Obligors further agree
that the indemnification, contribution and reimbursement commitments set
forth in this Section 8 shall apply whether or not any Initial Purchaser
is a formal party to any such lawsuits, claims or other proceedings. None
of the Obligors will without the prior written consent of the Initial
Purchasers, settle or compromise or consent to the entry of any judgment
in any pending or threatened claim, action, suit or proceeding in respect
of which indemnification by the Initial Purchasers may be sought hereunder
(whether or not the Initial Purchasers or any person who controls any
Initial Purchaser within the meaning of Section 15 of the Securities Act
or Section 20 of the Exchange Act is a party to such claim, action, suit
or proceeding), unless such settlement, compromise or consent includes an
unconditional release of the Initial Purchasers and each such director,
officer,
27
employee, agent or controlling person from all liability arising out of
such claim, action, suit or proceeding.
(b) The Initial Purchasers severally and not jointly will indemnify
and hold harmless the Obligors, their respective directors, officers, employees
and agents and each person, if any, who controls any of the Obligors within the
meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act
against any losses, claims, damages or liabilities to which any of the Obligors
or any such director, officer, employee, agent or controlling person may become
subject under the Securities Act, the Exchange Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon any untrue statement or alleged untrue statement of any
material fact contained in any Preliminary Memorandum or the Final Memorandum or
any amendment or supplement thereto, in each case to the extent, but only to the
extent, that such untrue statement or alleged untrue statement was made in
reliance upon and in conformity with written information furnished to the
Company by or on behalf of such Initial Purchaser specifically for use therein;
and, subject to the limitation set forth immediately preceding this clause, will
reimburse, as incurred, any legal or other expenses reasonably incurred by any
of the Obligors or any such director, officer, employee, agent or controlling
person in connection with investigating or defending against or appearing as a
third-party witness in connection with any such loss, claim, damage, liability
or action in respect thereof. This indemnity agreement will be in addition to
any liability that the Initial Purchasers may otherwise have to the indemnified
parties.
(c) Promptly after receipt by an indemnified party under this
Section 8 of notice of the commencement of any action, such indemnified party
will, if a claim in respect thereof is to be made against the indemnifying party
under this Section 8, notify the indemnifying party of the commencement thereof;
but the omission so to notify the indemnifying party will not relieve it from
any liability that it may have to any indemnified party except to the extent
that such omission results in the forfeiture by the indemnifying party of
substantial rights and defenses. In case any such action is brought against any
indemnified party, and such indemnified party notifies the indemnifying party of
the commencement thereof, the indemnifying party will be entitled to participate
therein and, to the extent that it may wish, jointly with any other indemnifying
party similarly notified, to assume the defense thereof, with counsel reasonably
satisfactory to such indemnified party; PROVIDED, HOWEVER, that if the named
parties in any such action
28
(including any impleaded parties) include both the indemnified party and the
indemnifying party and the indemnified party shall have reasonably concluded
that there may be one or more legal defenses available to it and/or other
indemnified parties that are different from or additional to those available to
any such indemnifying party, then the indemnifying parties shall not have the
right to direct the defense of such action on behalf of such indemnified party
or parties and such indemnified party or parties shall have the right to select
separate counsel to defend such action on behalf of such indemnified party or
parties. After notice from the indemnifying party to such indemnified party of
its election so to assume the defense thereof and approval by such indemnified
party of counsel appointed to defend such action, the indemnifying party will
not be liable to such indemnified party under this Section 8 for any legal or
other expenses, other than reasonable out-of-pocket costs of investigation,
incurred by such indemnified party in connection with the defense thereof,
unless (i) the indemnified party shall have employed separate counsel in
accordance with the proviso to the immediately preceding sentence (it being
understood, however, that in connection with such action the indemnifying party
shall not be liable for the expenses of more than one separate counsel (in
addition to local counsel) in any one action or separate but substantially
similar actions in the same jurisdiction arising out of the same general
allegations or circumstances, representing the indemnified parties under such
paragraph (a) or paragraph (b), as the case may be, who are parties to such
action or actions); (ii) the indemnifying party has authorized in writing the
employment of counsel for the indemnified party at the expense of the
indemnifying parties; or (iii) the indemnifying party shall have failed to
assume the defense or retain counsel reasonably satisfactory to the indemnified
party. After such notice from the indemnifying parties to such indemnified party
(so long as the indemnified party shall have informed the indemnifying parties
of such action in accordance with this Section 8 on a timely basis prior to the
indemnified party seeking indemnification hereunder), the indemnifying parties
will not be liable under this Section 8 for the costs and expenses of any
settlement of such action effected by such indemnified party without the consent
of the indemnifying party, unless such indemnified party waived its rights under
this Section 8, in which case the indemnified party may effect such a settlement
without such consent.
(d) In circumstances in which the indemnity agreement provided for
in the preceding paragraphs of this Section 8 is unavailable or insufficient to
hold harmless an indemnified
29
party in respect of any losses, claims, damages, expenses or liabilities (or
actions in respect thereof), each indemnifying party, in order to provide for
just and equitable contribution, shall contribute to the amount paid or payable
by such indemnified party as a result of such losses, claims, damages, expenses
or liabilities (or actions in respect thereof) in such proportion as is
appropriate to reflect (i) the relative benefits received by the indemnifying
party or parties on the one hand and the indemnified party on the other from the
offering of the Securities or (ii) if the allocation provided by the foregoing
clause (i) is not permitted by applicable law, not only such relative benefits
but also the relative fault of the indemnifying party or parties on the one hand
and the indemnified party on the other in connection with the statements or
omissions or alleged statements or omissions that resulted in such losses,
claims, damages, expenses or liabilities (or actions in respect thereof). The
relative benefits received by the Obligors on the one hand and an Initial
Purchaser on the other shall be deemed to be in the same proportion as the total
proceeds from the offering of the Securities (before deducting expenses)
received by the Company bear to the total discounts and commissions received by
such Initial Purchaser. The relative fault of the parties shall be determined by
reference to, among other things, whether the untrue or alleged untrue statement
of a material fact or the omission or alleged omission to state a material fact
relates to information supplied by the Obligors on the one hand or the Initial
Purchasers on the other, the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission,
and any other equitable considerations appropriate in the circumstances. The
amount paid or payable by a party as a result of the losses, claims, damages and
liabilities referred to above shall be deemed to include any legal or other fees
or expenses incurred by such party in connection with investigating or defending
any such claim. The Obligors and the Initial Purchasers agree that it would not
be equitable if the amount of such contribution were determined by pro rata or
per capita allocation (even if the Obligors on the one hand and the Initial
Purchasers on the other hand were treated as one entity for such purpose) or by
any other method of allocation that does not take into account the equitable
considerations referred to in the first sentence of this paragraph (d).
Notwithstanding any other provision of this paragraph (d), no Initial Purchaser
shall be obligated to make contributions hereunder that in the aggregate exceed
the total discounts and commissions received by such Initial Purchaser under
this Agreement, less the aggregate amount of any damages that such Initial
Purchaser has otherwise been required to pay by reason of
30
the untrue or alleged untrue statements, and no person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. For purposes of this paragraph (d), each director,
officer, employee or agent of and each person, if any, who controls any Initial
Purchaser within the meaning of Section 15 of the Securities Act or Section 20
of the Exchange Act shall have the same rights to contribution as such Initial
Purchaser, and each director, officer, employee and agent of any of the Obligors
and each person, if any, who controls any of the Obligors within the meaning of
Section 15 of the Securities Act or Section 20 of the Exchange Act shall have
the same rights to contribution as the Obligors.
(e) Notwithstanding anything to the contrary in this Section 8, the
indemnification and contribution provisions of the Registration Rights Agreement
shall govern any claim with respect thereto.
9. OFFERING OF SECURITIES; RESTRICTIONS ON TRANSFER. (a) Each
Initial Purchaser represents and warrants as to itself only that it is a QIB.
Each Initial Purchaser agrees with the Obligors (as to itself only) that (i) it
has not and will not solicit offers for, or offer or sell, the Securities by any
form of general solicitation or general advertising (as those terms are used in
Regulation D under the Securities Act) or in any manner involving a public
offering within the meaning of Section 4(2) of the Securities Act; and (ii) it
has and will solicit offers for the Securities only from, and will offer the
Securities only to, (A) in the case of offers inside the United States (x)
persons whom such Initial Purchaser reasonably believes to be QIBs or, if any
such person is buying for one or more institutional accounts for which such
person is acting as fiduciary or agent, only when such person has represented to
such Initial Purchaser that each such account is a QIB, to whom notice has been
given that such sale or delivery is being made in reliance on Rule 144A and, in
each case, in transactions under Rule 144A or (y) a limited number of other
institutional investors reasonably believed by such Initial Purchaser to be
Accredited Investors that, prior to their purchase of the Securities, deliver to
such Initial Purchaser a letter containing the representations and agreements
set forth in Appendix A to the Final Memorandum and (B) in the case of offers
outside the United States, to persons other than U.S. persons ("foreign
purchasers," which term shall include dealers or other professional fiduciaries
in the United States acting on a discretionary basis for foreign beneficial
owners (other than an estate
31
or trust)); PROVIDED, HOWEVER, that, in the case of this clause (B), in
purchasing such Securities such persons are deemed to have represented and
agreed as provided under the caption "Notice to Investors" contained in the
Final Memorandum (or, if the Final Memorandum is not in existence, the most
recent Preliminary Memorandum).
(b) Each of the Initial Purchasers represents and warrants (as to itself
only) with respect to offers and sales outside the United States that (i) it has
and will comply with all applicable laws and regulations in each jurisdiction in
which it acquires, offers, sells or delivers Securities or has in its possession
or distributes any Memorandum or any such other material, in all cases at its
own expense; (ii) the Securities have not been and will not be offered or sold
within the United States or to, or for the account or benefit of, U.S. persons
except in accordance with Regulation S under the Securities Act or pursuant to
an exemption from the registration requirements of the Securities Act; (iii) it
has offered the Securities and will offer and sell the Securities (A) as part of
its distribution at any time and (B) otherwise until 40 days after the later of
the commencement of the offering and the Closing Date, only in accordance with
Rule 903 of Regulation S and, accordingly, neither it nor any persons acting on
its behalf have engaged or will engage in any directed selling efforts (within
the meaning of Regulation S) with respect to the Securities, and any such
persons have complied and will comply with the offering restrictions requirement
of Regulation S; and (iv) it agrees that, at or prior to confirmation of sales
of the Securities, it will have sent to each distributor, dealer or person
receiving a selling concession, fee or other remuneration that purchases
Securities from it during the restricted period a confirmation or notice to
substantially the following effect:
"The securities covered hereby have not been registered under the United
States Securities Act of 1933 (the "Securities Act") and may not be
offered and sold within the United States or to, or for the account or
benefit of, U.S. persons (i) as part of the distribution of the securities
at any time or (ii) otherwise until 40 days after the later of the
commencement of the offering and the closing date of the offering, except
in either case in accordance with Regulation S (or Rule 144A if available)
under the Securities Act. Terms used above have the meaning given to them
in Regulation S."
32
Terms used in this Section 9 and not defined in this Agreement have the meanings
given to them in Regulation S.
10. SURVIVAL CLAUSE. The respective representations, warranties,
agreements, covenants, indemnities and other statements of the Obligors, their
respective officers and the Initial Purchasers set forth in this Agreement or
made by or on behalf of them, respectively, pursuant to this Agreement shall
remain in full force and effect, regardless of (i) any investigation made by or
on behalf of the Obligors, any of their respective officers or directors, the
Initial Purchasers or any controlling person referred to in Section 8 hereof and
(ii) delivery of, payment for or disposition of the Securities, and shall be
binding upon and shall inure to the benefit of any successors, assigns, heirs or
personal representatives of the Obligors, the Initial Purchasers and indemnified
parties referred to in Section 8 hereof. The respective agreements, covenants,
indemnities and other statements set forth in Sections 6 and 8 hereof shall
remain in full force and effect, regardless of any termination or cancellation
of this Agreement.
11. TERMINATION. (a) This Agreement may be terminated in the sole
discretion of the Initial Purchasers by notice to the Company given in the event
that the Obligors shall have failed, refused or been unable to satisfy all
conditions on their part to be performed or satisfied hereunder on or prior to
the Closing Date or if at or prior to the Closing Date:
(i) any of the Company, the Subsidiaries or the Acquisition
Stations shall have sustained any loss or interference with respect to
their respective businesses or properties from fire, flood, hurricane,
earthquake, accident or other calamity, whether or not covered by
insurance, or from any labor dispute or any legal or governmental
proceeding, which loss or interference, in the sole judgment of the
Initial Purchasers, has had or has a material adverse effect on the
general affairs, management, business, condition (financial or other),
properties, prospects or results of operations of the Company and the
Subsidiaries, taken as a whole, both before and after giving effect to
each Acquisition, or there shall have been any material adverse change, or
any development involving a prospective material adverse change (including
without limitation a change in management or control of the Company or any
Subsidiary), in the general affairs, management, business, condition
(financial or other), properties, prospects or results of operations of
the Company
33
and the Subsidiaries, taken as a whole, both before and after giving
effect to each Acquisition, except as described in or contemplated by the
Final Memorandum (exclusive of any amendment or supplement thereto);
(ii) trading in securities of the Company, any Subsidiary or ACME
Intermediate or in securities generally on the New York Stock Exchange,
the American Stock Exchange or the NASDAQ National Market shall have been
suspended or minimum or maximum prices shall have been established on any
such exchange;
(iii) a banking moratorium shall have been declared by New York
or United States authorities;
(iv) there shall have been (A) an outbreak or escalation of
hostilities between the United States and any foreign power, (B) an
outbreak or escalation of any other insurrection or armed conflict
involving the United States or any other national or international
calamity or emergency, or (C) any material change in the financial markets
of the United States that, in the case of (A), (B) or (C) above, in the
sole judgment of the Initial Purchasers, makes it impracticable or
inadvisable to proceed with the delivery of the Securities as contemplated
by the Final Memorandum, as amended as of the date hereof; or
(v) any securities of the Company, any of the Subsidiaries or ACME
Intermediate shall have been downgraded or placed on any "watch list" for
possible downgrading by any nationally recognized statistical rating
organization.
(b) If on the Closing Date, any of the Initial Purchasers shall fail
or refuse to purchase Securities which it or they have agreed to purchase
hereunder, and the aggregate principal amount at maturity of Securities which
such defaulting Initial Purchaser agreed but failed or refused to purchase is
not more than one-tenth of the aggregate principal amount at maturity of
Securities to be purchased on such date, the other Initial Purchaser shall be
obligated in the proportion that the principal amount at maturity of Securities
set forth opposite its name in SCHEDULE I bears to the aggregate principal
amount at maturity of Securities set forth opposite the names of the
non-defaulting Initial Purchaser, or in such other proportions as the Initial
Purchasers may specify, to purchase the Securities which such defaulting Initial
Purchaser agreed but failed or refused to purchase on such date; PROVIDED,
HOWEVER, that in no event shall the principal amount at maturity of Securities
34
that any Initial Purchaser has agreed to purchase pursuant to Section 3 be
increased pursuant to this Section 11(b) by an amount in excess of one-ninth of
such principal amount at maturity of Securities without the written consent of
such Initial Purchaser. If on the Closing Date, any Initial Purchaser shall fail
or refuse to purchase Securities which it has agreed to purchase hereunder, and
the aggregate principal amount at maturity of Securities with respect to which
such default occurs is more than one-tenth of the aggregate principal amount at
maturity of Securities to be purchased, and arrangements satisfactory to the
Initial Purchasers and the Issuers for the purchase of such Securities are not
made within 36 hours after such default, this Agreement shall terminate without
liability on the part of any non-defaulting Initial Purchaser or the Obligors.
In any such case either the Initial Purchasers or the Company shall have the
right to postpone the Closing Date, but in no event for longer than seven days,
in order that the required changes, if any, in the Final Memorandum or in any
other documents or arrangements may be effected. Any action taken under this
paragraph shall not relieve any defaulting Initial Purchaser from liability in
respect of any default of such Initial Purchaser under this Agreement or the
offering contemplated hereunder.
(c) Termination of this Agreement pursuant to this Section 11 shall
be without liability of any party to any other party except as provided in
Section 10 hereof.
12. NOTICES. All communications hereunder shall be in writing and,
if sent to the Initial Purchasers, shall be hand delivered, mailed by
first-class mail, couriered by next-day air courier or telecopied and confirmed
in writing to CIBC Wood Gundy Securities Corp., ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: Corporate Finance Department, and with a
copy to ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇,
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇, Esq. If sent to any of the Obligors, shall be mailed,
delivered or telecopied and confirmed in writing, to ACME Television, LLC, Suite
850, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Chief
Financial Officer, and with a copy to ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇
▇▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇., Esq.
All such notices and communications shall be deemed to have been
duly given: when delivered by hand, if personally delivered; five business days
after being deposited in the mail, postage prepaid, if mailed; one business day
after being timely delivered to a next-day air courier guaranteeing over-
35
night delivery; and when receipt is acknowledged by the addressee, if
telecopied.
13. SUCCESSORS. This Agreement shall inure to the benefit of and be
binding upon the Initial Purchasers and each of the Obligors and their
respective successors and legal representatives, and nothing expressed or
mentioned in this Agreement is intended or shall be construed to give any other
person any legal or equitable right, remedy or claim under or in respect of this
Agreement, or any provisions herein contained; this Agreement and all conditions
and provisions hereof being intended to be and being for the sole and exclusive
benefit of such persons and for the benefit of no other person except that (i)
the indemnities of the Obligors contained in Section 8 of this Agreement shall
also be for the benefit of the directors, officers, employees and agents and any
person or persons who control the Initial Purchasers within the meaning of
Section 15 of the Securities Act or Section 20 of the Exchange Act and (ii) the
indemnities of the Initial Purchasers contained in Section 8 of this Agreement
shall also be for the benefit of the directors, officers, employees and agents
of the Obligors and any person or persons who control any Obligor within the
meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act.
No purchaser of Securities from any Initial Purchaser will be deemed a successor
because of such purchase.
14. NO WAIVER; MODIFICATIONS IN WRITING. No failure or delay on the
part of any Obligor or the Initial Purchasers in exercising any right, power or
remedy hereunder shall operate as a waiver thereof, nor shall any single or
partial exercise of any such right, power or remedy preclude any other or
further exercise thereof or the exercise of any other right, power or remedy.
The remedies provided for herein are cumulative and are not exclusive of any
remedies that may be available to any Obligor or the Initial Purchasers at law
or in equity or otherwise. No waiver of or consent to any departure by any
Obligor or the Initial Purchasers from any provision of this Agreement shall be
effective unless signed in writing by the party entitled to the benefit thereof,
PROVIDED that notice of any such waiver shall be given to each party hereto as
set forth below. Except as otherwise provided herein, no amendment, modification
or termination of any provision of this Agreement shall be effective unless
signed in writing by or on behalf of each of the Obligors and the Initial
Purchasers. Any amendment, supplement or modification of or to any provision of
this Agreement, any waiver of any provision of this Agreement, and any consent
to any departure by the Obligors or the Initial Purchasers from the terms of any
provision of this Agreement
36
shall be effective only in the specific instance and for the specific purpose
for which made or given. Except where notice is specifically required by this
Agreement, no notice to or demand on the Obligors in any case shall entitle the
Obligors to any other or further notice or demand in similar or other
circumstances.
15. INFORMATION SUPPLIED BY THE INITIAL PURCHASERS. The statements
set forth in the last two sentences of the third paragraph and the third
sentence of the fifth paragraph, in each case under the heading "Plan of
Distribution" in the Final Memorandum (to the extent such statements relate to
the Initial Purchasers) constitute the only information furnished by the Initial
Purchasers to the Company for purposes of Section 8 hereof.
16. ENTIRE AGREEMENT. This Agreement constitutes the entire
agreement among the parties hereto and supersedes all prior agreements,
understandings and arrangements, oral or written, among the parties hereto
with respect to the subject matter hereof.
17. APPLICABLE LAW. THE VALIDITY AND INTERPRETATION OF THIS
AGREEMENT, AND THE TERMS AND CONDITIONS SET FORTH HEREIN SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT
GIVING EFFECT TO ANY PROVISIONS RELATING TO CONFLICTS OF LAW.
18. COUNTERPARTS. This Agreement may be executed in two or
more counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
19. JOINT AND SEVERAL OBLIGATIONS. All of the obligations of
the Obligors hereunder shall be joint and several obligations of each of them.
37
If the foregoing correctly sets forth our understanding, please
indicate your acceptance thereof in the space provided below for that purpose,
whereupon this Agreement shall constitute a binding agreement among the Obligors
and the Initial Purchasers.
Very truly yours,
ACME TELEVISION, LLC
By:/s/▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Chief Financial
Officer
ACME FINANCE CORPORATION
By:/s/▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Chief Financial
Officer
ACME TELEVISION LICENSES OF MISSOURI, INC.
By:/s/▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Chief Financial
Officer
ACME TELEVISION HOLDINGS OF OREGON, LLC
By:/s/▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇▇ ▇.▇▇▇▇▇
Title: Chief Financial
Officer
38
ACME TELEVISION HOLDINGS OF TENNESSEE, LLC
By:/s/▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Chief Financial
Officer
ACME TELEVISION HOLDINGS OF UTAH, LLC
By:/s/▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Chief Financial
Officer
ACME TELEVISION HOLDINGS OF NEW MEXICO, LLC
By:/s/▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Chief Financial
Officer
ACME TELEVISION LICENSES OF OREGON, LLC
By:/s/▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Chief Financial
Officer
39
ACME TELEVISION LICENSES OF TENNESSEE, LLC
By:/s/▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Chief Financial
Officer
ACME TELEVISION LICENSES OF NEW MEXICO, LLC
By:/s/▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Chief Financial
Officer
ACME TELEVISION OF OREGON, LLC
By:/s/▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Chief Financial
Officer
ACME TELEVISION OF TENNESSEE, LLC
By:/s/▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Chief Financial
Officer
40
ACME SUBSIDIARY HOLDINGS III, LLC
By:/s/▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Chief Financial
Officer
41
The foregoing Agreement is hereby
confirmed and accepted as of the
date first above written.
CIBC WOOD GUNDY SECURITIES CORP.
▇▇▇▇▇▇▇ ▇▇▇▇▇ & CO.
▇▇▇▇▇▇▇ LYNCH, ▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇
INCORPORATED
By: CIBC WOOD GUNDY SECURITIES CORP.
By: /s/▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Managing Director
42
EXHIBIT A-1
GUARANTORS
ACME Television Licenses of Missouri, Inc.
ACME Television Holdings of Oregon, LLC
ACME Television Holdings of Tennessee, LLC
ACME Television Holdings of Utah, LLC
ACME Television Holdings of New Mexico, LLC
ACME Television Licenses of Oregon, LLC
ACME Television Licenses of Tennessee, LLC
ACME Television Licenses of New Mexico, LLC
ACME Television of Oregon, LLC
ACME Television of Tennessee, LLC
ACME Subsidiary Holdings III, LLC
EXHIBIT A-2
--------------------------------------------------------------------------
Outstanding Ownership of
SUBSIDIARIES EQUITY INTERESTS EQUITY INTERESTS
--------------------------------------------------------------------------
--------------------------------------------------------------------------
ACME Finance Common Stock ACME Television (100%)
Corporation
--------------------------------------------------------------------------
--------------------------------------------------------------------------
ACME Television Common Stock ACME Television (100%)1
Licenses of Missouri,
Inc.
--------------------------------------------------------------------------
--------------------------------------------------------------------------
ACME Television Membership Units ACME Television (99%) ACME
Holdings of Oregon, Licenses - Oregon (1%)
LLC
--------------------------------------------------------------------------
--------------------------------------------------------------------------
ACME Television Membership Units ACME Television (99%)
Holdings of ACME Licenses - Tennessee
Tennessee, LLC (1%)
--------------------------------------------------------------------------
--------------------------------------------------------------------------
ACME Television Membership Units ACME Television (99.5%)
Holdings of Utah, LLC ACME Subsidiary Holdings
III (0.5%)
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ACME Television Membership Units ACME Television (99.5%)
Holdings of New ACME Subsidiary Holdings
Mexico, LLC III (0.5%)
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ACME Television Membership Units ACME Holdings - Oregon
Licenses of Oregon, (99%)
LLC ACME Television - Oregon
(1%)
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ACME Television Membership Units ACME Holdings - Tennessee
Licenses of (99%)
Tennessee, LLC ACME Television -
Tennessee (1%)
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ACME Television Membership Units ACME Television (99.5%)
Licenses of New ACME Subsidiary Holdings
Mexico, LLC III (0.5%)
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1 In addition, ACME Television will lend approximately $135 to $146
million to ACME Licenses-Missouri on a long-term basis
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ACME Television of Membership Units ACME Holdings - Oregon
Oregon, LLC (99%)
ACME Licenses - Oregon (1%)
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ACME Television of Membership Units ACME Holdings - Tennessee
Tennessee, LLC (99%)
ACME Licenses - Tennessee
(1%)
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2
SCHEDULE 1
Principal
AMOUNT AT MATURITY
CIBC Wood Gundy Securities Corp. $162,260,000
▇▇▇▇▇▇▇ Lynch, ▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated 12,740,000
Total................................................. $175,000,000
============
EXHIBIT B - FORM OF OPINION OF ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
LLP has been inentionally omitted by the Registrants.
A copy of this omitted Exhibit B will be provided to the Securities
and Exchange Commission upon request.