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EXHIBIT 10.2
EXECUTION COPY
ASSET PURCHASE AGREEMENT
DATED AS OF FEBRUARY 19, ▇▇▇▇
▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇, LLC
ACME TELEVISION LICENSES OF NEW MEXICO, LLC
AND
RAMAR COMMUNICATIONS II, LTD.
WITH RESPECT TO TELEVISION STATION
KASY-TV, ALBUQUERQUE, NEW MEXICO
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EXECUTION COPY
ASSET PURCHASE AGREEMENT
This Asset Purchase Agreement is entered into as of February 19, 1999,
by and among ACME Television of New Mexico, LLC, a Delaware limited liability
company, and ACME Television Licenses of New Mexico, LLC, a Delaware limited
liability company (collectively "Buyer") and Ramar Communications II, Ltd., a
Texas limited partnership ("Seller").
R E C I T A L S
Seller is the licensee of Television Station KASY-TV, Albuquerque, New
Mexico, (the "Station"), pursuant to licenses issued by the Federal
Communications Commission (the "FCC"), and is the owner of the assets used or
useful in connection with the business or operation of the Station.
Seller desires to sell and assign, and Buyer desires to purchase and
acquire, certain assets owned or held by Seller and used or useful in the
conduct of the business or operations of the Station, on the terms and
conditions hereinafter set forth.
Seller and ▇▇▇ Enterprises, Incorporated ("▇▇▇") are parties to a Time
Brokerage Agreement dated December 12, 1994 (the "▇▇▇ TBA") pursuant to which
▇▇▇ provides programming on the Station.
A G R E E M E N T S
ARTICLE 1
ASSETS TO BE CONVEYED
1.1. CLOSING. Subject to Section 17.1 hereof and except as otherwise
mutually agreed upon by Seller and Buyer, the closing of this transaction (the
"Closing") shall take place on a date designated by Buyer no later than ten (10)
days after the last of the conditions specified in Articles 11 and 12 hereof has
been fulfilled (or waived by the party entitled to waive such condition). The
Closing shall be held at 10:00 a.m. in the offices of ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇
P.L.L.C., ▇▇▇▇ ▇ ▇▇▇▇▇▇, ▇.▇., ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇, D.C., or at such place as
the parties may otherwise agree.
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1.2. STATION ASSETS. At the Closing, Seller shall sell, assign, transfer
and convey to Buyer, and Buyer shall purchase from Seller, certain of the
assets, real, personal and mixed, tangible and intangible, owned or held by
Seller and used or useful in the conduct of the business and operation of the
Station (but excluding the assets specified in Section 1.3), including, but not
limited to, the following:
(a) all of Seller's rights in and to (i) the Station Licenses (as
defined in Article 22 hereof), (ii) all licenses, permits and other
authorizations issued to Seller by the Federal Aviation Administration
("FAA") or any governmental authority and used or useful in the
operation of the Station (with all of the foregoing, including the
Station Licenses, collectively referred to hereinafter as the
"Government Authorizations"), all of which are listed in Schedule
1.2(a), together with any additions thereto (including renewals or
modifications of such licenses, permits and authorizations and
applications therefor) between the date hereof and the Closing Date,
and, to the extent assignable, all of Seller's rights in and to the call
letters KASY-TV;
(b) all of Seller's right, title and interest in and to all real
estate and other real property interests, including any towers or
fixtures on such real property, owned by Seller and used or useful in
the operation of the Station, including the Real Property Leases as
defined herein and listed in Schedule 1.2(b), together with any
additions thereto between the date hereof and the Closing Date;
(c) all broadcast and other equipment, office furniture and
fixtures, office materials and supplies, inventory, spare parts, and
other tangible personal property of every kind and description, owned,
leased or held by Seller and used or useful in the operation of the
Station, including the items listed in Schedule 1.2(c), together with
any replacements thereof and additions thereto, made between the date
hereof and the Closing Date;
(d) subject to the provisions of Article 3 hereof, all of
Seller's rights under and interest in the Contracts as defined herein
and listed in Schedule 1.2(d) hereto (including assumption of whatever
time remains on the ▇▇▇ TBA), together with all of Seller's rights under
and interest in all Contracts entered into or acquired by Seller between
the date hereof and the Closing Date in accordance with this Agreement;
provided, that Seller shall provide Buyer a true copy, or, in the case
of an oral agreement, a complete description of any Contract entered
into or acquired
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by Seller between the date hereof and the Closing Date within five (5)
days after entering into such Contract; and, provided further, that
Buyer shall not be obligated to, but may in writing, assume any Contract
entered into or acquired by Seller after the date of this Agreement if
such Contracts, in the aggregate, would create a liability for Buyer in
excess of Five Thousand Dollars ($5,000).
(e) all of Seller's rights in and to the trademarks, trade names,
service marks, patents, franchises, copyrights, including registrations
and applications for registration of any of them, jingles, logos,
slogans, licenses, permits and privileges, trade secrets, and other
similar intangible property rights and interests owned by or licensed to
Seller and used or useful exclusively in the operation of the Station;
(f) all files, records, studies, data, lists, filings, general
accounting records, books of account, computer programs, software and
logs relating to the operation of the Station; and
(g) all of Seller's good will in and going concern value of the
Station.
The assets to be assigned and transferred to Buyer hereunder are
hereinafter collectively referred to as the "Station Assets." The Station Assets
shall be assigned and transferred to Buyer free and clear of all security
interests, financing agreements, liens, claims, and encumbrances of any and
every kind (except Permitted Encumbrances).
1.3. EXCLUDED ASSETS. The Station Assets shall not include the following
(the "Excluded Assets"):
(a) Seller's books and records as pertain to the organization,
existence or capitalization of Seller, and duplicate copies of such
records as are necessary to enable Seller to file tax returns and
reports;
(b) all cash, cash equivalents or similar type investments of
Seller, such as certificates of deposit, Treasury bills, and other
marketable securities on hand and/or in banks;
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(c) all accounts receivable arising out of the operation of the
Station for services performed or provided prior to the Effective Time
(the "Accounts Receivable");
(d) all contracts of insurance, insurance proceeds, and insurance
claims made by Seller relating to Station Assets repaired, replaced, or
restored by Seller prior to Closing, except for any rights that may be
assigned pursuant to Article 20 hereof;
(e) all pension, profit sharing or cash or deferred (Section
401(k)) plans and trusts and the assets thereof and any other employee
benefit plan or arrangement and the assets thereof, if any;
(f) all claims, rights and interest in and to any refunds of
federal, state or local franchise, income or other taxes or fees of any
nature whatsoever for any period prior to Closing;
(g) all contracts, leases and other executory obligations of
Seller which Buyer does not assume;
(h) Seller's FCC licenses and related assets for Stations K47CF
and KHFT, Hobbs, New Mexico, and Station KUPC, Carlsbad, New Mexico;
provided however, that Buyer will have the right on and after Closing to
co-locate at no cost to Buyer its separate transmission facilities on
the tower for Station KUPC, if such a tower is built and controlled by
Seller; and
(i) Seller's August 14, 1998 Tower Lease with ▇▇▇ at Hagerman,
New Mexico relating to Seller's Microwave License WPNI-808; provided
however, that, at Buyer's request, Seller will cooperate with Buyer in
using commercially reasonable efforts to facilitate the assignment of
such Tower Lease to Buyer or to otherwise provide Buyer with the
benefits of such Tower Lease.
ARTICLE 2
PURCHASE PRICE
2.1. PURCHASE PRICE. The total consideration to be paid by Buyer for the
Station Assets (the "Purchase Price") shall be Twenty-Five Million Four Hundred
Thousand Dollars ($25,400,000) plus, subject to Section 10.5(b) hereof, any
amount paid by Ramar
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to ▇▇▇ pursuant to Section 4 ("▇▇▇ Purchase Option") of that certain December
12, 1994 Equipment Lease between ▇▇▇ and Ramar Communications, Inc., Ramar's
predecessor in interest (the portion of the Purchase Price related to the
Purchase Option shall be referred to herein as the "▇▇▇ Purchase Option Cost"),
subject to upward adjustment pursuant to Section 11.8 hereof.
2.2. PAYMENT OF PURCHASE PRICE. The Purchase Price will be payable as
follows:
(a)(1) No later than March 1, 1999, Buyer shall deposit the amount of
Five Hundred Thousand Dollars ($500,000) (the "Escrow Deposit") with Escrow
Agent to be held pursuant to the terms and conditions of the Escrow Agreement
(in the form of Exhibit A), together with all interest earned thereon; provided,
however, that this Agreement shall terminate without any further liability or
obligation on the part of any party hereto if the Escrow Agreement is not
executed by the parties thereto by close of business on March 1, 1999 or Buyer
does not deposit the Escrow Deposit with Escrow Agent by close of business,
March 1, 1999. At the Closing, the Escrow Deposit shall be paid by Escrow Agent
to Seller, and all interest earned thereon shall be paid by Escrow Agent to
Buyer.
(2) Except as otherwise provided in Section 11.8 hereof, Four Hundred
Thousand Dollars ($400,000) shall be paid to Seller upon the termination of the
KWBQ-TV LMA, defined in Section 11.8 hereof.
(b) The payment schedule of the remaining Twenty-Four Million Five
Hundred Thousand Dollars ($24,500,000) plus the ▇▇▇ Purchase Option Cost of the
Purchase Price, subject to upward adjustment pursuant to Section 11.8 hereof,
will depend on whether the ▇▇▇ TBA is terminated prior to the Closing (the
"Pre-Closing Scenario"); simultaneously with the Closing (the "Simultaneous
Closing Scenario"); or after the Closing (the "Post-Closing Scenario"), as
follows:
(1) Under the Pre-Closing Scenario, Buyer will pay to ▇▇▇ on behalf
of Seller the One Million Seven Hundred Thousand Dollars
($1,700,000) liquidated damages, or, if the ▇▇▇ TBA is
terminated during the Renewal Term thereof, as defined therein,
such higher or lower amount of liquidated damages required to be
paid to ▇▇▇ under the ▇▇▇ TBA (the "▇▇▇ TBA Liquidated Damages")
when such payment is due to be made. Buyer's payment of the ▇▇▇
TBA Liquidated Damages will be secured by a
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promissory note substantially in the form of Exhibit B hereto
made by Seller for the benefit of Buyer in the amount of the ▇▇▇
TBA Liquidated Damages up to a maximum of $1,700,000 (the
"Note"). On the Closing Date, Buyer shall pay Seller the amount
of Twenty-Four Million Five Hundred Thousand Dollars
($24,500,000) plus the ▇▇▇ Purchase Option Cost, reduced by the
amount of the amount of the ▇▇▇ TBA Liquidated Damages up to a
maximum reduction of One Million Seven Hundred Thousand Dollars
($1,700,000), by wire transfer of immediately available federal
funds to a bank or other financial institution designated by
Seller at least two (2) business days prior to the Closing Date,
and will cancel the Note. Under the Pre-Closing Scenario, and to
the extent permissible under the then current rules,
regulations, and policies of the FCC, Buyer and Seller agree to
enter into a time brokerage agreement with each other relating
to the Station, effective upon the termination of the ▇▇▇ TBA,
with Buyer as Broker and substantially in the form of Exhibit C
hereto (the "Seller/Buyer TBA").
(2) Under the Simultaneous Closing Scenario, on the Closing Date
Buyer will pay (i) the ▇▇▇ TBA Liquidated Damages and the ▇▇▇
Purchase Option Cost to ▇▇▇ on Seller's behalf; and (ii)
Twenty-Four Million Five Hundred Thousand Dollars ($24,500,000),
reduced by the amount of the ▇▇▇ TBA Liquidated Damages up to a
maximum reduction of $1,700,000, to Seller by wire transfer of
immediately available federal funds to a bank or other financial
institution designated by Seller at least two (2) business days
prior to the Closing Date.
(3) Under the Post-Closing Scenario, on the Closing Date, Seller
shall assign to Buyer and Buyer shall assume, all of Seller's
rights and obligations under the ▇▇▇ TBA and Buyer shall (i)
deposit the amount of One Million Seven Hundred Thousand Dollars
($1,700,000) (the "TBA Escrow Deposit") with TBA Escrow Agent to
be held pursuant to the terms and conditions of the TBA Escrow
Agreement (in the form of Exhibit D), together with all interest
earned thereon, and (ii) pay Twenty-Two Million Eight Hundred
Thousand Dollars ($22,800,000) to Seller by wire transfer of
immediately available federal funds to a bank or other financial
institution designated by Seller at least two (2) business days
prior to the Closing Date. The sole purpose of the TBA Escrow
Agreement is to satisfy Buyer's obligation to pay the ▇▇▇ TBA
Liquidated Damages as assignee of the ▇▇▇ TBA or pursuant to
Section 10.5 hereof and Buyer and Seller agree to give Escrow
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Agent joint instructions to effectuate this purpose, as well as
to direct Escrow Agent that any funds which are remaining in
such account after the payment of the ▇▇▇ TBA Liquidated Damages
and the termination of the ▇▇▇ TBA shall be released to Seller
(with interest thereon paid to Buyer). Any ▇▇▇ TBA Liquidated
Damages owing to ▇▇▇ in excess of $1,700,000 shall be paid to
▇▇▇ by Buyer when due.
Notwithstanding anything to the contrary in this section, the parties
agree to amend this section as necessary to reflect any subsequent agreement
they may mutually reach with each other and ▇▇▇ which relates to the ▇▇▇ TBA
Liquidated Damages.
2.3. ALLOCATION OF PURCHASE PRICE. Buyer shall prepare an initial draft
of IRS Form 8594 prior to or within one hundred eighty (180) days after the
Closing. Buyer shall forward such form to Seller for its approval, which shall
not be unreasonably withheld or delayed; provided, however, that if Seller does
not approve the draft of IRS Form 8594, it shall bear all expenses of revising
such form, including the costs of any appraisals, and Buyer and Seller shall
each file the IRS Form 8594 finally agreed upon by the parties with their
respective federal income tax return for the tax year in which the Closing
occurs. In no event shall Seller or Buyer take any position in any filing or
other representation with or to the IRS or any governmental authority which is
inconsistent with the allocation agreed to by the parties pursuant to this
Section.
ARTICLE 3
ASSUMPTION OF OBLIGATIONS
3.1. ASSUMPTION OF OBLIGATIONS. Subject to the provisions of this
Agreement, Buyer shall assume and undertake to pay, satisfy or discharge: (a)
the liabilities, obligations and commitments of Seller arising and accruing
after the Closing Date under the Real Property Leases listed in Schedule 1.2(b),
and the Contracts listed in Schedule 1.2(d), and (b) the liabilities,
obligations and commitments of Seller arising and accruing after the Closing
Date under other contracts entered into between the date of this Agreement and
the Closing Date which Buyer expressly agrees in writing to assume.
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3.2. LIMITATION. Except as set forth in Section 3.1 hereof, Buyer
expressly does not, and shall not, assume or be deemed to assume, under this
Agreement or otherwise by reason of the transactions contemplated hereby, any
liabilities, obligations or commitments of Seller of any nature whatsoever.
Without limiting the generality of the foregoing, Buyer shall not assume or be
liable for any liability or obligation of Seller (a) arising out of any
litigation, proceeding or claim by any person or entity relating to the business
or operation of the Station prior to the Closing Date, whether or not such
litigation, proceeding or claim is pending, threatened or asserted before, on or
after the Closing Date, (b) under any employment contract, collective bargaining
agreement, insurance, pension, retirement, deferred compensation, incentive
bonus or profit sharing or employee benefit plan or trust, except to the extent
such agreement is specifically included in the Contracts listed on Schedule
1.2(d), or (c) relating to any accounts payable.
ARTICLE 4
REQUIRED CONSENTS
4.1. FCC APPLICATION. The assignment of the Station Licenses as
contemplated by this Agreement is subject to the prior consent of the FCC. Upon
Buyer's three (3) business days' prior written notice to Seller, but in any
event no later than thirty (30) days after the date of this Agreement, whether
or not such notice is given, Buyer and Seller shall file the FCC Application.
Seller and Buyer shall thereafter prosecute the FCC Application with all
reasonable diligence and otherwise use commercially reasonable efforts to obtain
the grant of the FCC Application as expeditiously as practicable; provided,
however, that neither Seller nor Buyer shall have any obligation to satisfy any
third party (including but not limited to a petitioner or complainant) or the
FCC by taking any steps which would have a material adverse effect upon Seller
or Buyer or upon any affiliated entity, but neither the expense nor
inconvenience to a party of defending against a petition to deny or other third
party complaint or an inquiry by the FCC shall be considered a material adverse
effect on such party. Each party will promptly provide the other party with a
copy of any pleading, order, or other document sent or received by it relating
to the FCC Application. Each party shall make whatever amendments or submissions
are required or requested by the FCC or otherwise necessary to secure FCC
Consent; provided however, that such amendment or response does not have a
material adverse effect on such party or any affiliated entity. If the FCC
Consent imposes any condition on any party hereto, such party shall use
commercially reasonable efforts to
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comply with such condition; provided, however, that no party shall be required
to comply with any condition that would have a material adverse effect upon it
or any affiliated entity. If reconsideration or judicial review is sought with
respect to the FCC Consent, the party affected shall vigorously oppose such
reconsideration or judicial review; provided, however, that nothing herein shall
be construed to limit either party's right to terminate this Agreement pursuant
to Article 17 hereof.
4.2. COMPLIANCE WITH HSRA. Each party shall make or cause to be made in
a timely fashion, and in any event no later than ten (10) business days after
the filing of the FCC Application, any and all filings which are required in
connection with the transactions contemplated hereby under the HSRA, and shall
furnish to the other party all information that the other reasonably requests in
connection with such filings. If the HSRA requires the parties to file
thereunder, the transfer of the Station Assets hereunder is conditioned upon the
expiration of the applicable waiting period under the HSRA without the
institution or threat of any action with respect to the consummation of the
transactions contemplated hereunder. All filing fees in connection with such
notification shall be paid by Buyer.
4.3. OTHER GOVERNMENTAL CONSENTS. Promptly following the execution of
this Agreement, the parties shall prepare and file with any other appropriate
governmental authorities any other requests for approval or waiver that are
required from such governmental authorities in connection with the transactions
contemplated hereby and shall diligently and expeditiously prosecute, and shall
cooperate fully with each other in the prosecution of, such requests for
approval or waiver and all proceedings necessary to secure such approvals and
waivers.
ARTICLE 5
PRORATIONS
5.1. PRORATION OF INCOME AND EXPENSES. All income and expenses arising
from the conduct of the business and operation of the Station shall be prorated
between Buyer and Seller as of the Effective Time in accordance with GAAP. Such
prorations shall be based upon the principle that Seller shall be entitled to
all income earned and shall be responsible for all liabilities and obligations
incurred or accruing in connection with the operation of the Station until the
Effective Time, and Buyer shall be entitled to all income earned and be
responsible for such liabilities and obligations incurred by
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Buyer thereafter. Such prorations shall include, without limitation, all ad
valorem, real estate and other property taxes (but excluding taxes arising by
reason of the transfer of the Station Assets as contemplated hereby, which shall
be paid as set forth in Article 14 of this Agreement), business and license
fees, music and other license fees (including any retroactive adjustments
thereof), utility expenses, liabilities and obligations under all Contracts to
be assumed by Buyer, rents and similar prepaid and deferred items and all other
expenses attributable to the ownership and operation of the Station. To the
extent not known, real estate taxes shall be apportioned on the basis of taxes
assessed for the preceding year, with a reapportionment as soon as the new tax
rate and valuation can be ascertained.
5.2. PAYMENT OF PRORATION ITEMS. Within sixty (60) days following the
Closing Date, Buyer shall deliver to Seller a schedule of its proposed
prorations (which shall set forth in reasonable detail the basis for those
determinations) (the "Proration Schedule"). The Proration Schedule shall be
conclusive and binding upon Seller unless Seller provides Buyer with written
notice of objection (the "Notice of Disagreement") within thirty (30) days after
Seller's receipt of the Proration Schedule, which notice shall state the
prorations of expenses proposed by Seller (the "Seller's Proration Amount").
Those items which are not in dispute shall be paid by Seller or Buyer, as the
case may be, within forty-five (45) days after Seller's receipt of the Proration
Schedule. Buyer shall have fifteen (15) days from receipt of a Notice of
Disagreement to accept or reject Seller's Proration Amount. If Buyer rejects
Seller's Proration Amount, the dispute shall be submitted within ten (10) days
to a mutually acceptable accounting firm that has no relationship with either
Buyer or Seller (the "Referee") for resolution, such resolution to be made
within thirty (30) days after submission to the Referee and to be final,
conclusive and binding on Seller and Buyer. Buyer and Seller agree to share
equally the cost and expenses of the Referee, but each party shall bear its own
legal and other expenses, if any. Payment by Buyer or Seller, as the case may
be, of the proration amounts determined pursuant to this Section 5.2 shall be
due thirty (30) days after the last to occur of (i) Seller's acceptance of the
Proration Schedule or failure to give Buyer a timely Notice of Disagreement;
(ii) Buyer's acceptance of Seller's Proration Amount; and (iii) notice to Seller
and Buyer of the resolution of the disputed amount by the Referee. Any payment
required by Seller to Buyer or by Buyer to Seller, as the case may be, under
this Section 5.2 shall be paid by wire transfer of immediately available federal
funds to the account of the payee with a financial institution in the United
States as designated by Buyer in the Proration Schedule or by Seller in the
Notice of Disagreement (or by separate notice in
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the event that Seller does not send a Notice of Disagreement). If either Buyer
or Seller fails to pay when due any amount under this Section 5.2, interest on
such amount will accrue from the date payment was due to the date such payment
is made at a per annum rate equal to the Prime Rate plus three percent (3%), and
such interest shall be payable upon demand.
ARTICLE 6
REPRESENTATIONS AND WARRANTIES OF BUYER
Buyer represents and warrants to Seller as follows:
6.1. ORGANIZATION AND STANDING. Buyer is a limited liability company
organized, validly existing and in good standing under the laws of the State of
Delaware.
6.2. AUTHORIZATION AND BINDING OBLIGATION. Buyer has all necessary power
and authority to enter into and perform under this Agreement and the
transactions contemplated hereby, and Buyer's execution, delivery and
performance of this Agreement has been duly and validly authorized by all
necessary action on its part. This Agreement has been duly executed and
delivered by Buyer and constitutes its valid and binding obligation, enforceable
in accordance with its terms, except as limited by laws affecting creditors'
rights or equitable principles generally.
6.3. FCC QUALIFICATIONS. To Buyer's knowledge, there are no facts which,
under the Communications Act of 1934, as amended, or the published rules and
regulations of the FCC, would disqualify Buyer as assignee of the Station
Licenses.
6.4. ABSENCE OF CONFLICTING AGREEMENTS OR REQUIRED CONSENTS. Except as
set forth in Article 4 with respect to FCC and other governmental consents or as
disclosed on Schedule 6.4, the execution, delivery and performance of this
Agreement and the consummation of the transactions contemplated hereby by Buyer:
(a) do not and will not require the consent of any third party; (b) do not and
will not violate any provisions of Buyer's governing instruments; (c) do not and
will not violate any applicable law, judgment, order, injunction, decree, rule,
regulation or ruling of any governmental authority which exists as of the date
of this Agreement and to which Buyer is subject; and (d) do not and will not,
either alone or with the giving of notice or the passage of time, or
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both, conflict with, constitute grounds for termination of or result in a breach
of the terms, conditions or provisions of, or constitute a default under any
agreement, instrument, license or permit to which Buyer is subject as of the
date of this Agreement.
6.5. ABSENCE OF LITIGATION. Except as set forth on Schedule 6.5, there
is no claim, litigation, proceeding or investigation pending or, to the best of
Buyer's knowledge, threatened against Buyer which seeks to enjoin or prohibit,
or which otherwise questions the validity of, any action taken or to be taken in
connection with this Agreement.
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ARTICLE 7
REPRESENTATIONS AND WARRANTIES OF SELLER
Seller represents and warrants to Buyer as follows:
7.1. ORGANIZATION AND STANDING. Seller is a limited partnership duly
formed, validly existing and in good standing under the laws of the State of
Texas. Seller has all necessary power and authority to own, lease and operate
the Station Assets and to carry on the business of the Station as now being
conducted and as proposed to be conducted by Seller between the date hereof and
the Closing Date.
7.2. AUTHORIZATION AND BINDING OBLIGATION. Seller has all necessary
power and authority to enter into and perform this Agreement and the
transactions contemplated hereby, and Seller's execution, delivery and
performance of this Agreement has been duly and validly authorized by all
necessary action on its part. This Agreement has been duly executed and
delivered by Seller and constitutes its valid and binding obligation,
enforceable in accordance with its terms, except as limited by laws affecting
the enforcement of creditors' rights or equitable principles generally.
7.3. ABSENCE OF CONFLICTING AGREEMENTS OR REQUIRED CONSENTS. Except as
set forth in Article 4 with respect to FCC and other governmental consents and
except as set forth on Schedule 7.3, the execution, delivery and performance of
this Agreement and the consummation of the transactions contemplated hereby by
Seller (a) do not and will not require the consent of any third party (except
with respect to Real Property Leases disclosed in Schedule 1.2(b) and Contracts
disclosed in Schedule 1.2(d)); (b) do not and will not violate any provisions of
Seller's governing instruments; (c) do not and will not violate any applicable
law, judgment, order, injunction, decree, rule, regulation or ruling of any
governmental authority which exists as of the date of this Agreement by which
Seller or the Station Assets are bound; (d) do not and will not, either alone or
with the giving of notice or the passage of time, or both, conflict with,
constitute grounds for termination of, or result in a breach of the terms,
conditions or provisions of, or constitute a default under, any Real Property
Lease, Contract, agreement, instrument, license or permit to which either Seller
or the Station Assets are now subject; and (e) do not and will not result in the
creation of any lien, charge or encumbrance on any of the Station Assets.
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7.4. GOVERNMENT AUTHORIZATIONS.
(a) Schedule 1.2(a) includes true and complete copies of the Station
Licenses and other material Government Authorizations (including those issued by
the FAA), and, except as set forth on Schedule 1.2(a), and except for licenses
listed under the Excluded Assets, there are no other licenses, permits or other
authorizations from governmental or regulatory authorities required for the
lawful conduct of the business and operation of the Station in the manner and to
the full extent they are now conducted. The Station Licenses listed in Schedule
1.2(a) were validly issued and are validly held by Seller, are in full force and
effect, and except as disclosed in Schedule 1.2(a) or on the face of such
license, none is subject to any restriction or condition which would limit in
any respect the full operation of the Station as now operated.
(b) Except as disclosed in Schedule 1.2(a), there are no applications,
petitions, complaints, investigations or other proceedings pending or, to the
best of Seller's knowledge, threatened before the FCC relating to the business
or operation of the Station or that may result in the revocation, modification,
non-renewal or suspension of any of the Station Licenses, the denial of any
pending application or the imposition of any fines, forfeitures, or other
administrative actions by the FCC with respect to the Station or its operation
other than proceedings affecting the broadcasting industry generally. Except as
disclosed in Schedule 1.2(a), Seller is not subject to any outstanding judgment
or order of the FCC or any court relating to the Station. The Station has been
and is being operated in accordance with the terms and conditions of the Station
Licenses, the underlying construction permits, the Communications Act of 1934,
as amended, and all rules, regulations and policies of the FCC.
(c) To Seller's knowledge, there are no facts which, under the
Communications Act of 1934, as amended, or the existing rules and regulations of
the FCC, would disqualify it as the assignor of the Station Licenses.
7.5. TITLE TO AND CONDITION OF REAL PROPERTY.
(a) Schedule 1.2(b) contains descriptions of all of Seller's
real property interests, which consist solely of leasehold interests and
easements, and rights in and agreements with respect to, real property used or
held for use in connection with Seller's operation of the Station (the "Real
Property"). Seller has not assigned title to the non-fee
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estates identified on Schedule 1.2(b) or otherwise taken, or failed to take, any
action which would adversely affect Seller's title therein. Except for leases
listed as Excluded Assets under Section 1.3 hereof, listed in Schedule 1.2(b)
are all leases to which Seller is a party and which relate to real property used
or useful in the operation of the Station (the "Real Property Leases"). The Real
Property Leases constitute valid and binding obligations of the Seller and, to
Seller's knowledge, of all other parties thereto, and are in full force and
effect as of the date hereof. Except as disclosed on Schedule 1.2(b), Seller is
not in material default under any of Real Property Leases, and to Seller's
knowledge, the other parties to such Real Property Leases are not in default
thereunder. Seller has not received or given written notice of any default
thereunder from or to any of the other parties thereto. Schedule 1.2(b) lists
all third party consents necessary to assign such Real Property Leases. Except
as disclosed on Schedule 1.2(b), Seller has all requisite power and authority to
assign its rights under the Real Property Leases listed in Schedule 1.2(b) to
Buyer in accordance with this Agreement on terms and conditions no less
favorable than those in effect on the date hereof, and such assignment will not
affect the validity, enforceability or continuity of any such leases.
7.6. TITLE TO PERSONAL PROPERTY. Schedule 1.2(c) contains a list of the
principal items (and a summary description of the other items) of tangible
personal property owned, leased or held by Seller and used or useful in the
conduct of the business and operation of the Station ("Personal Property").
Except as described in Schedule 1.2(c), Seller has good and marketable title to
all Personal Property (and to all other tangible personal property and assets to
be transferred to Buyer hereunder) owned or leased by it free and clear of all
Liens (except for Liens for current taxes not yet due and payable). The Personal
Property is in good working order and meets any and all applicable governmental
and industry standards.
7.7. CONTRACTS.
(a) Schedule 1.2(d) lists all written Contracts, and includes a
detailed summary of all oral Contracts to be assumed by Buyer, as of the date of
this Agreement.
(b) Seller has delivered to Buyer true and complete copies of
all written Contracts, or true and complete memoranda describing all oral
Contracts. Except as disclosed in Schedule 1.2(d), all Contracts are in full
force and effect and are valid, binding and enforceable by Seller in accordance
with their respective terms, except as
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limited by laws affecting creditors' rights or equitable principles generally.
Seller has complied in all material respects with all Contracts and is not in
default under any of the Contracts. To the best of Seller's knowledge, no other
contracting party is in default under any of the Contracts. Except as set forth
in Schedule 1.2(d), Seller has full legal power and authority to assign its
rights under the Contracts to Buyer in accordance with this Agreement on terms
and conditions no less favorable than those in effect on the date hereof, and
such assignment will not require the consent of any third party or affect the
validity, enforceability or continuity of any of the Contracts.
7.8. INTELLECTUAL PROPERTY. There is no pending or, to the best of
Seller's knowledge, threatened proceeding or litigation affecting or with
respect to the Intellectual Property. Seller has received no notice and has no
knowledge of any infringement or unlawful use of the Intellectual Property.
7.9. LITIGATION. Seller is not subject to any judgment, award, order,
writ, injunction, arbitration decision or decree. Except as disclosed on
Schedule 7.9, there is no claim, litigation, proceeding or investigation pending
or, to the best of Seller's knowledge, threatened against the Seller or relating
to the Station in any federal, state or local court, or before any
administrative agency, arbitrator or other tribunal authorized to resolve
disputes. Except as disclosed on Schedule 7.9, there is no claim, litigation,
proceeding or investigation pending or, to the best of Seller's knowledge,
threatened against Seller or relating to the Station Assets, which might have a
material adverse effect upon the business, assets or condition (financial or
otherwise) of the Station, which seeks to enjoin or prohibit, or otherwise
questions the validity of, any action taken or to be taken in connection with
this Agreement, or which might impede Seller's ability to assign the Station
Assets to Buyer in a timely manner under this Agreement and otherwise in
accordance with the terms and conditions of this Agreement.
7.10. COMPLIANCE WITH LAWS. Seller has operated and is operating in
material compliance with all laws, regulations and governmental orders and
published policies applicable to the conduct of the business and operation of
the Station, and, to Seller's knowledge, its present use of the Station Assets
does not violate any such laws, regulations or orders in any material respect.
Seller has not received any notice asserting any noncompliance with any
applicable statute, rule, published policy or regulation, in connection with the
business or operation of the Station.
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7.11. TAXES. Seller has duly, timely and in the required manner filed
all federal, state, local and foreign income, franchise, sales, use, property,
excise, payroll and other tax returns and forms required to be filed, and has
paid in full or discharged all taxes, assessments, excises, interest, penalties,
deficiencies and losses required to be paid. No event has occurred which could
impose on Buyer any liability for any taxes, penalties or interest due or to
become due from Seller from any taxing authority.
7.12. BANKRUPTCY. No insolvency proceedings of any character, including
without limitation, bankruptcy, receivership, reorganization, composition or
arrangement with creditors, voluntary or involuntary, affecting Seller or any of
the Station Assets, are pending or threatened, and Seller has not made any
assignment for the benefit of creditors or taken any action in contemplation of
or which would constitute the basis for the institution of such insolvency
proceedings.
7.13. ENVIRONMENTAL MATTERS. To Seller's knowledge, no Hazardous
Substance (a) is or has been used, treated, stored, disposed of, released,
spilled, generated, manufactured, transported or otherwise handled on the Real
Property, (b) has been spilled, released or disposed of on property adjacent to
the Real Property, or (c) has otherwise come to be located on or under the Real
Property. To Seller's knowledge, the Real Property and all operations on the
Real Property are in material compliance with all Environmental Laws. Seller has
obtained all environmental, health and safety permits necessary for the
operation of the Station, and all such permits are in full force and effect, and
Seller is in material compliance with the terms and conditions of all such
permits. To Seller's knowledge, no outstanding liens have been placed on the
Real Property under any Environmental Laws. Seller has not received any notice
concerning, and is not aware of any administrative or judicial investigations,
proceedings or actions with respect to, violations, alleged or proven, of
Environmental Laws by Seller, or otherwise involving the Real Property or the
operations conducted on the Real Property.
7.14. UCC FINANCING STATEMENTS. All of the Station Assets are and have
been located in the State of New Mexico since the Station Assets were acquired
by Seller. Copies of all financing statements filed by any party with respect to
the Station Assets are listed in Schedule 7.14.
7.15. INSURANCE. Schedule 7.15 lists all insurance policies maintained
by Seller. All of such policies are in full force and effect, and Seller is not
in default of any material
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provision thereof. Seller has not received notice from any issuer of any such
policies of its intention to cancel, terminate or refuse to renew any policy
issued by it.
7.16. CABLE CARRIAGE. To Seller's knowledge, Schedule 7.16 sets forth a
correct and complete list of (a) all cable television systems which carry the
Station's signal on the date hereof under the FCC's "must carry" rules or under
agreements implementing such rules; (b) all cable television systems which carry
the Station's signal pursuant to retransmission consent agreements; and (c) all
other multi-channel video operators which carry the Station's signal.
7.17. NO MATERIAL OMISSION. Seller has not failed to disclose any
material fact within its knowledge which would make any statement or
representation in this Agreement inaccurate or misleading.
ARTICLE 8
COVENANTS OF BUYER
8.1. NOTIFICATION. Buyer shall notify Seller of any material litigation,
arbitration or administrative proceeding pending or, to its knowledge,
threatened against Buyer which challenges the transactions contemplated hereby,
including any challenges to the FCC Application, and shall use commercially
reasonable efforts to remove any such impediment to the transactions
contemplated by this Agreement.
8.2. NO INCONSISTENT ACTION. Buyer shall not take any action materially
inconsistent with its obligations under this Agreement or that would hinder or
delay the consummation of the transactions contemplated by this Agreement.
ARTICLE 9
COVENANTS OF SELLER
9.1. INTERIM OPERATION. Between the date of this Agreement and the
Closing Date, except as expressly permitted or required by this Agreement, or
with the prior written consent of Buyer:
(a) Subject to the ▇▇▇ TBA, Seller shall conduct the business and
operation of the Station solely in the ordinary and normal course of
business consistent with
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past practice, with the intent of preserving the ongoing operations and
assets of the Station;
(b) Seller shall not sell, assign, lease or otherwise transfer or
dispose of any of the Station Assets, except for assets consumed or
disposed of in the ordinary course of business where no longer used or
useful in the business or operation of the Station, in which event the
same shall be replaced with assets of equal or greater value and
utility, and the Station's inventories of spare parts and expendable
supplies shall be maintained at levels consistent with customary
practices in the broadcast industry;
(c) Seller shall not create, assume or permit to exist any claim,
liability, mortgage, lien, pledge, condition, charge, or encumbrance of
any nature whatsoever upon the Station Assets, except for those in
existence on the date of this Agreement, all of which will be removed on
or prior to the Closing Date unless they are to be assumed by Buyer in
accordance with Section 3.1 of this Agreement;
(d) Seller shall operate the Station in accordance with the FCC's
published rules, policies and regulations, the Station Licenses, and
with all other applicable laws, regulations, rules and orders, and shall
not cause or permit by any act, or failure to act, any of the Station
Licenses to expire, be surrendered, adversely modified, or otherwise
terminated, or fail to prosecute with due diligence any pending
application to the FCC;
(e) Seller shall not waive any material right under or cancel,
modify or in any way impair any Real Property Lease or Contract relating
to the Station or the Station Assets;
(f) Seller shall timely make all payments required to be paid
under any Real Property Lease and Contract to be assumed by Buyer when
due and otherwise pay all liabilities and satisfy all obligations when
such liabilities and obligations become due;
(g) Seller shall maintain its existing insurance on the Station
Assets, and
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(h) Seller shall not take any action, or as the case may be, fail
to take any commercially reasonable action necessary to preserve the
Station's carriage on cable television systems or multi-channel video
operators identified in Schedule 7.16.
9.2. ACCESS TO STATION. Between the date of this Agreement and the
Closing Date, Seller shall give Buyer and Buyer's counsel, accountants,
engineers and other representatives, reasonable access during normal business
hours to all of Seller's properties, records and employees relating to the
Station, and shall furnish Buyer with all information related to the Station
that Buyer reasonably requests. The rights of Buyer under this Section 9.2 shall
not be exercised in such a manner as to interfere unreasonably with the business
of the Station.
9.3. NO SOLICITATION. Between the date of this Agreement and the
Closing, neither Seller nor any Affiliate of Seller, nor their respective
officers, directors or shareholders shall directly or indirectly (a) solicit,
initiate, entertain or encourage submission of any proposal or offer from any
person relating to: (i) any acquisition or purchase of all or any substantial
amount of the Station Assets or Seller, (ii) or any local marketing agreement
with respect to the Station or (b) participate in any discussions or
negotiations regarding, or furnish to any person any information with respect
to, or otherwise cooperate in any way, or assist or participate in, facilitate
or encourage, any effort or attempt by any person to do or seek any of the
foregoing. This Section 9.3 shall not be applicable to Seller's compliance with
its obligations under Section 10.5(a).
9.4. NOTIFICATION. Seller shall notify Buyer of any litigation,
arbitration or administrative proceeding pending or, to its knowledge,
threatened against Seller which challenges the transactions contemplated hereby,
including any challenges to the FCC Application, and shall use commercially
reasonable efforts to take such steps as may be necessary to remove any such
impediment to the transactions contemplated by this Agreement.
9.5. THIRD-PARTY CONSENTS. Seller shall obtain at its own expense the
consent of any third parties necessary for the assignment to Buyer of any Real
Property Lease or Contract to be assigned hereunder.
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9.6. CLOSING COVENANT. On the Closing Date, Seller shall transfer,
convey, assign and deliver to Buyer the Station Assets as provided in Article 1
of this Agreement.
9.7. REVERSAL AGREEMENT. In the event that the Closing occurs prior to
the FCC Consent becoming a Final Order, at the Closing, Seller shall execute and
deliver the Reversal Agreement.
9.8. PAYMENT OF INDEBTEDNESS; FINANCING STATEMENTS. Seller shall secure
the release of all liens or encumbrances on the Station Assets that secure the
payment of any indebtedness and shall deliver to Buyer at the Closing releases
or terminations under the Uniform Commercial Code and any other applicable
federal, state or local statutes or regulations of any financing or similar
statements filed against any Station Assets in (a) the jurisdictions in which
the Station Assets are and have been located since such Station Assets were
acquired by Seller, and (b) any other location specified or required by
applicable federal, state or local statutes or regulations.
9.9. NO INCONSISTENT ACTION. Seller shall not take any action which is
materially inconsistent with its obligations under this Agreement or that would
hinder or delay the consummation of the transactions contemplated by this
Agreement.
ARTICLE 10
JOINT COVENANTS
10.1. CONDITIONS. If any event should occur between the date hereof and
the Closing, either within or without the control of any party hereto, which
would prevent fulfillment of the conditions upon the obligations of any party to
consummate the transactions contemplated by this Agreement, the parties shall
use their reasonable efforts to cure the event as expeditiously as possible.
10.2. COMMERCIALLY REASONABLE EFFORTS. Between the date of this
Agreement and the Closing, each party shall use commercially reasonable efforts
to cause the fulfillment at the earliest practicable date of all of the
conditions to the obligations of the other party to consummate the sale and
purchase under this Agreement.
10.3. CONTROL OF STATION. Between the date of this Agreement and the
Closing, Buyer shall not, directly or indirectly, control, supervise or direct
the operations of the
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Station. Such operations shall be the sole responsibility of Seller and, subject
to the provisions of Article 9, shall be in its complete discretion.
10.4. CONFIDENTIALITY. Buyer and each Seller shall each keep
confidential all information obtained by it with respect to the other in
connection with this Agreement, and if the transactions contemplated hereby are
not consummated for any reason, each shall return to the other, without
retaining a copy thereof, any schedules, documents or other written information,
including all financial information, obtained from the other in connection with
this Agreement and the transactions contemplated hereby, except where such
information is known or available through other lawful sources or where such
party is advised by counsel that its disclosure is required in accordance with
applicable law.
10.5. COVENANTS WITH RESPECT TO AGREEMENTS WITH ▇▇▇.
Seller shall take the following actions in connection with its
obligations to ▇▇▇:
(a) Within three (3) business days of the receipt of written notice from
Buyer, but in no event later than thirty (30) days from the date hereof, whether
or not Buyer gives such written notice, Seller shall provide ▇▇▇ with written
notice of this Agreement (the "ROFR Notice") as required under Section 1(a) of
that certain Agreement between ▇▇▇ and Seller dated December 12, 1994 (the "ROFR
Agreement"). The ROFR Agreement grants ▇▇▇ thirty (30) days after receipt of the
ROFR Notice to exercise its right of first refusal (the "ROFR Exercise
Notification"). Seller shall provide Buyer with a copy of any such ROFR Exercise
Notification within five (5) days of Seller's receipt thereof. Notwithstanding
anything herein to the contrary, in the event that ▇▇▇ properly exercises its
right of first refusal, this Agreement shall be null and void, and the parties
hereto shall have no further obligations or liability to each other hereunder.
(b) Within three (3) business days of the receipt of written notice from
Buyer, and with Seller's consent, not to be unreasonably withheld, Seller shall
provide notice to ▇▇▇ of its intention to terminate the ▇▇▇ TBA pursuant to
Section 4.3 thereof; provided however, that notwithstanding anything to the
contrary contained herein, if such notice of termination is given by Seller, and
if this Agreement is terminated for any reason other than Seller's material
uncured breach hereof or Seller's voluntary election to terminate this Agreement
pursuant to Section 17.1(a)(iv) hereof, Buyer shall be responsible for paying
the full amount of the ▇▇▇ TBA Liquidated Damages. Buyer agrees to fulfill this
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obligation by (i) cancelling the Note; or (ii) in the event the Note has not
been executed, making the TBA Escrow Deposit within five (5) days of such
termination of this Agreement (with no Seller obligation to execute and deliver
the Note), whichever the case may be, and, in addition to (i) or (ii), by paying
directly to ▇▇▇ when due any ▇▇▇ TBA Liquidated Damages in excess of $1,700,000.
If this Agreement is terminated solely because of Seller's material uncured
breach hereof or Seller's voluntary election to terminate this Agreement
pursuant to Section 17.1(a)(iv) hereof, Seller shall be responsible for paying
the full amount of the ▇▇▇ TBA Liquidated Damages. Seller agrees, however, that
in the event (i) this Agreement is terminated solely because of a change in the
law which renders the KWBQ-TV LMA incapable of effectuation, and (ii) Seller,
within two years of such termination, consummates the sale of the Station to a
third party buyer for a purchase price in excess of Twenty-Five Million, Six
Hundred Fifty Thousand Dollars ($25,650,000), then in that event Seller will
reimburse Buyer out of such excess for ▇▇▇ TBA Liquidated Damages incurred by
Buyer up to a maximum of $1,700,000. Ten (10) business days in advance of
Closing or six (6) months after notice of intent to terminate the ▇▇▇ TBA has
been given to ▇▇▇, whichever is earlier, Buyer shall notify Seller in writing as
to whether or not Buyer wishes Seller to exercise the ▇▇▇ Purchase Option. If
Buyer notifies Seller hereunder that Buyer does not wish the ▇▇▇ Purchase Option
to be exercised, Buyer shall not be liable for the ▇▇▇ Purchase Option Cost.
ARTICLE 11
CONDITIONS PRECEDENT TO BUYER'S OBLIGATION TO CLOSE
The obligations of Buyer hereunder are, at its option, subject to
satisfaction, at or prior to the Closing Date, of each of the following
conditions:
11.1. REPRESENTATIONS, WARRANTIES AND COVENANTS.
(a) All representations and warranties of Seller made in this Agreement
shall be true, correct and complete in all material respects on and as of the
Closing Date as if made on and as of that date.
(b) All of the terms, covenants and conditions to be complied with and
performed by Seller on or prior to Closing Date shall have been complied with or
performed.
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11.2. GOVERNMENTAL CONSENTS. The conditions specified in Article 4 of
this Agreement shall have been satisfied, and the FCC Consent shall have become
a Final Order, provided however, that either party shall have the right to
require the other to proceed to Closing upon an initial staff grant of the FCC
Consent; provided, further, that Buyer will not be required to proceed to
Closing hereunder until a Final Order is obtained if Buyer provides Seller
written notice from Buyer's financing sources that, despite Buyer's commercially
reasonable, good faith efforts to obtain its financing sources' consent to close
upon initial FCC Consent, Buyers' financing sources require that FCC Consent
become a Final Order. If the parties proceed to Closing upon an initial staff
grant of the FCC Consent, the parties will enter into the Reversal Agreement.
The applicable waiting period under the HSRA shall have expired.
11.3. GOVERNMENTAL AUTHORIZATIONS. Seller shall be the lawful holder of
the Station Licenses and all other material licenses, permits and other
authorizations listed in Schedule 1.2(a), and there shall not have been any
modification of any of such licenses, permits and other authorizations which
might have a material adverse effect on the Station or the conduct of its
business and operation. No proceeding shall be pending which seeks or the effect
of which reasonably could be to revoke, cancel, fail to renew, suspend or modify
adversely any of the Station Licenses or any other licenses, permits or other
authorizations relating to the Station.
11.4. THIRD-PARTY CONSENTS. Seller shall have obtained and shall have
delivered to Buyer all third-party consents that may be required for assignment
of the Real Property Leases and Contracts marked with an asterisk on Schedules
1.2(b) and 1.2(d), without any material change or impairment of such Real
Property Leases or Contracts and without any condition adverse to Buyer.
11.5. ADVERSE PROCEEDINGS. No suit, action, claim or governmental
proceeding shall be pending against, and no order, decree or judgment of any
court, agency or other governmental authority shall have been rendered against,
any party hereto that Buyer in good faith, based upon a written opinion of
counsel (and provided to Seller), believes would or could (if resolved adversely
to Seller or Buyer) render it unlawful, as of the Closing Date, to effect the
transactions contemplated by this Agreement in accordance with its terms, or
would or could preclude Seller from assigning and conveying the Station Assets
to Buyer in accordance with the terms and conditions of this Agreement.
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11.6. DELIVERIES. Seller shall have made or stand ready, willing and
able to make all the deliveries required under Section 13.1.
11.7. ENVIRONMENTAL AUDIT. Buyer shall have received, within sixty (60)
days of the date of this Agreement (and promptly thereafter provided to Seller),
completed Phase I environmental audit reports (the "Phase I Reports") at Buyer's
sole expense regarding the Real Property, which Phase I Reports shall be
reasonably satisfactory to Buyer. In the event Buyer fails to obtain such Phase
I Reports within the aforementioned sixty (60) day period, Buyer shall have
irrevocably waived such condition. If, in Buyer's reasonable judgment, Phase II
environmental audit reports ("Phase II Reports") are necessary in light of the
contents of the Phase I Reports, at Buyer's sole expense, Buyer shall be
required to obtain such Phase II Reports to its reasonable satisfaction within
ninety (90) days of the date of this Agreement (and promptly thereafter provide
them to Seller). In the event Buyer fails to obtain any such Phase II Report
within such 90-day period, Buyer shall have irrevocably waived such condition.
In the event that a Phase I Report and/or a Phase II Report discloses an
environmental condition or matter which is reasonably unsatisfactory to Buyer,
Buyer shall notify Seller in writing of its objection to any environmental
condition or matter addressed in the Phase I Reports or Phase II Reports and
Seller shall have sixty (60) days from Seller's receipt of notice to remediate
and eliminate such condition or matter; provided, that such matters and
conditions can be remediated and eliminated by Seller's expenditure of One
Hundred Thousand Dollars ($100,000) or less, such expense to be paid by Seller.
If the environmental condition or matter cannot be remediated and eliminated by
Seller's expense of One Hundred Thousand Dollars ($100,000) or less, Seller
shall elect (and provide Buyer with written notice of such election within the
sixty (60) day period following Buyer's initial notice) to either (a) proceed
with the remediation and elimination of such conditions and matters without
regard to the One Hundred Thousand Dollars ($100,000) expense threshold
referenced above, or (b) terminate this Agreement without any further liability
hereunder; provided however, that if Seller elects to so terminate this
Agreement, Buyer may then elect, by providing Seller with notice thereof within
ten (10) days after Buyer's receipt of Seller's election, to either: (a) accept
such termination by Seller, or (b) notwithstanding anything herein to the
contrary, waive all non-compliant environmental conditions and matters and any
claims it may have against Seller with respect to any such non- remediated or
non-compliant condition or matter, in which case the Closing will proceed as
contemplated by this Agreement (subject to its terms and conditions) and Buyer
shall
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receive a One Hundred Thousand Dollar ($100,000) credit against the Purchase
Price otherwise payable pursuant to Section 2.1 hereof.
11.8. FCC CONSENT TO ASSIGNMENT OF STATION KWBQ-TV; CONSUMMATION OF
KWBQ-TV AGREEMENT. The FCC shall have granted its consent to the assignment of
the FCC authorizations for Station KWBQ-TV, Santa Fe, New Mexico, from Buyer to
Seller and such consent shall have become a Final Order. The parties shall
consummate the KWBQ-TV Agreement and Seller and ACME Television of New Mexico,
LLC ("ATNM") shall enter into a Local Marketing Agreement substantially in the
form of Exhibit A to the KWBQ-TV Agreement (the "KWBQ-TV LMA") simultaneous with
the Closing of this Agreement; provided, that, if either party exercises its
right under Section 11.2 of this Agreement to require Closing upon an initial
staff grant of the FCC Consent, then, in that event, the parties shall be
obligated to close the assignment of the FCC authorizations and other assets for
Station KWBQ-TV upon a similar initial staff grant of the FCC Consent for that
transaction; provided further, that, in the event the closing for the assets of
Station KWBQ-TV occurs before any FCC Consent becomes final, then, in that
event, the parties shall enter into a similar Reversal Agreement for that
transaction as well. Notwithstanding anything to the contrary in this Agreement,
ATNM shall have the sole right to waive in writing this condition relating to
the KWBQ-TV LMA; provided that such waiver will increase the Purchase Price for
the Station by One Million Eight Hundred and Fifty Thousand Dollars
($1,850,000), to Twenty Seven Million, Two Hundred and Fifty Thousand Dollars
($27,250,000), plus the ▇▇▇ Purchase Option Cost, with the Four Hundred Thousand
Dollar ($400,000) portion of the Purchase Price referenced in Section 2.2(a)(2)
hereof to be paid on the Closing Date, and the parties agree in that event to
make any necessary conforming changes to this Agreement and the KWBQ-TV
Agreement and the exhibits and schedules thereto.
11.9. SATISFACTION OF COVENANTS WITH RESPECT TO ▇▇▇. Seller shall have
satisfied its obligations under Section 10.5 hereof, and ▇▇▇ shall not have
properly exercised its right of first refusal under the ROFR Agreement.
11.10. LIEN SEARCH. Buyer shall have received a written report
concerning the liens and other encumbrances, if any, on any of the Station
Assets and shall have received confirmation from Seller that any liens and other
encumbrances disclosed on such report have been removed or will be removed at
the Closing.
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11.11. RENEWAL OF LICENSE. The Station Licenses shall have been renewed
by the FCC for a full term expiring on October 1, 2006 without imposition of any
conditions or modifications except those generally applied to stations of the
same type and class.
ARTICLE 12
CONDITIONS PRECEDENT TO SELLER'S OBLIGATION TO CLOSE
The obligations of Seller hereunder are, at its option, subject to
satisfaction, at or prior to the Closing Date, of each of the following
conditions:
12.1. REPRESENTATIONS, WARRANTIES AND COVENANTS.
(a) All representations and warranties made by Buyer in this Agreement
shall be true and complete in all material respects on and as of the Closing
Date as if made on and as of that date.
(b) All the terms, covenants and conditions to be complied with and
performed by Buyer under this Agreement on or prior to the Closing Date shall
have been complied with or performed in all material respects.
12.2. GOVERNMENTAL CONSENTS. The conditions specified in Article 4 and
Section 11.2 of this Agreement shall have been satisfied.
12.3. ADVERSE PROCEEDINGS. No suit, action, claim or governmental
proceeding shall be pending against, and no order, decree or judgment of any
court, agency or other governmental authority shall have been rendered against
any party hereto that Seller in good faith, based upon a written opinion of
counsel (and provided to Buyer), believes would or could (if resolved adversely
to Seller or Buyer) render it unlawful, as of the Closing Date, to effect the
transactions contemplated by this Agreement in accordance with its terms or
would or could preclude Seller from assigning and conveying the Station Assets
to Buyer in accordance with the terms and conditions of this Agreement.
12.4. DELIVERIES. Buyer shall have made or stand ready, willing and able
to make all the deliveries required under Section 13.2.
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12.5. FCC CONSENT TO ASSIGNMENT OF STATION KWBQ-TV; CONSUMMATION OF
KWBQ-TV AGREEMENT. The FCC shall have granted its consent to the assignment of
the FCC Authorizations for Station KWBQ-TV, Santa Fe, New Mexico, from Buyer to
Seller and such consent shall have become a Final Order. The parties shall
consummate the KWBQ-TV Agreement and Seller and ATNM shall enter into the
KWBQ-TV LMA simultaneous with the Closing of this Agreement; provided, that, if
the Closing is held under Section 11.2 of this Agreement upon an initial staff
grant of the FCC Consent, then, in that event, the parties shall be obligated to
close the assignment of the FCC authorizations and other assets for Station
KWBQ-TV upon a similar initial staff grant of the FCC Consent for that
transaction; provided further, that, in the event the closing for the assets of
Station KWBQ-TV occurs before any FCC Consent becomes final, then, in that
event, the parties shall enter into a similar Reversal Agreement for that
transaction as well. This condition relating to the KWBQ-TV LMA is subject to
waiver by ATNM pursuant to Section 11.8 hereof.
12.6 SATISFACTION OF COVENANTS WITH RESPECT TO ▇▇▇. Buyer shall have
satisfied its obligations under Section 10.5 hereof, and ▇▇▇ shall not have
properly exercised its right of first refusal under the ROFR Agreement.
ARTICLE 13
DOCUMENTS TO BE DELIVERED AT THE CLOSING
13.1. DOCUMENTS TO BE DELIVERED BY SELLER. At the Closing, Seller shall
deliver to Buyer the following:
(a) a certificate of an officer of Seller's general partner,
dated the Closing Date, in form and substance reasonably satisfactory to
Buyer, certifying to the fulfillment of the conditions set forth in
Sections 11.1 through 11.9 hereof;
(b) instruments of conveyance and transfer, in form and substance
reasonably satisfactory to counsel to Buyer, effecting the sale,
transfer, assignment and conveyance of the Station Assets to Buyer,
including, but not limited to, the following:
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(i) assignments of the Station Licenses and other Government
Authorizations;
(ii) bills of sale for all Personal Property, including all
books, records, logs and similar assets;
(iii) assignments of the Real Property Leases and Contracts; and
(iv) assignments of all intangible personal property.
(c) the Reversal Agreement unless at the time of Closing the FCC
Consent shall have become a Final Order;
(d) if the Post-Closing Scenario is applicable, the TBA Escrow
Agreement;
(e) resolutions of the members of Seller's general partner,
countersigned by the Seller's limited partners, authorizing the
execution, delivery and performance of this Agreement, certified by the
secretary of Seller;
(f) the KWBQ-TV LMA;
(g) assignments, consents and Estoppel Certificates relative to
the Real Property Leases;
(h) such other documents as may reasonably be requested by
Buyer's counsel; and
(i) the opinions of Seller's corporate and FCC counsel in the
form and substance reasonably satisfactory to Buyer.
13.2. DOCUMENTS TO BE DELIVERED BY BUYER. At the Closing, Buyer shall
deliver to Seller the following:
(a) a certificate of an officer of Buyer, dated the Closing Date,
in form and substance reasonably satisfactory to Seller, certifying to
the fulfillment of the conditions specified in Sections 12.1 through
12.6 hereof;
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(b) immediately available wire-transferred federal funds as
provided in Section 2.2(b);
(c) instruments, in form and substance reasonably satisfactory to
Seller and its counsel, pursuant to which Buyer assumes obligations,
liabilities and commitments as provided in Article 3;
(d) the opinion of Buyer's counsel in the form and substance
reasonably satisfactory to Seller; and
(e) resolutions of the members of each Buyer, authorizing the
execution, delivery and performance of this Agreement, certified by an
officer of each Buyer;
(f) the KWBQ-TV LMA;
(g) if the Pre-Closing Scenario is applicable, the cancelled
Note;
(h) if the Post-Closing Scenario is applicable, the TBA Escrow
Agreement; and
(i) such other documents as may reasonably be requested by
Seller's counsel.
13.3. ESCROW AGENT. At the Closing the parties shall cause the Escrow
Agent to deliver the Escrow Deposit to Seller by wire transfer of immediately
available funds, and deliver the interest on the Escrow Deposit to Buyer by wire
transfer of immediately available funds.
ARTICLE 14
TRANSFER TAXES; FEES AND EXPENSES
14.1. TRANSFER TAXES AND SIMILAR CHARGES. Except as set forth in
Sections 14.2 and 14.3 hereof, all costs of transferring the Station Assets in
accordance with this Agreement, including recordation, transfer and documentary
taxes and fees, and any excise, sales or use taxes, shall be borne by Seller.
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14.2. GOVERNMENTAL FILING FEES. Any filing or grant fees imposed by the
FCC shall be borne equally by Buyer and Seller. The HSRA fee shall be paid by
Buyer.
14.3. EXPENSES. Except as otherwise provided in this Agreement, each
party hereto shall be solely responsible for and shall pay all costs and
expenses incurred by it in connection with the negotiation, preparation and
performance of and compliance with the terms of this Agreement.
ARTICLE 15
BROKER'S COMMISSION OR FINDER'S FEE
15.1. BUYER'S REPRESENTATION AND AGREEMENT TO INDEMNIFY. Buyer
represents and warrants to Seller that neither it nor any person or entity
acting on its behalf has agreed to pay a commission, finder's fee or similar
payment in connection with this Agreement or any matter related hereto to any
person or entity, other than ▇▇▇▇▇ ▇▇▇▇▇, nor has it or any person or entity
acting on its behalf taken any action on which a claim for any such payment
could be based. Buyer agrees to indemnify and hold Seller harmless from and
against any and all claims, losses, liabilities and expenses (including
reasonable attorneys' fees) arising out of a claim by any person or entity based
on any such arrangement or agreement made or alleged to have been made by Buyer.
Buyer agrees to be solely responsible for the payment on the Closing Date of the
$250,000 fee due to ▇▇▇▇▇ ▇▇▇▇▇.
15.2. SELLER'S REPRESENTATION AND AGREEMENT TO INDEMNIFY. Seller
represents and warrants to Buyer that neither it nor any person or entity acting
on its behalf has agreed to pay a commission, finder's fee or similar payment in
connection with this Agreement or any matter related hereto to any person or
entity, nor has it or any person or entity acting on its behalf taken any action
on which a claim for any such payment could be based. Seller agrees to indemnify
and hold Buyer harmless from and against any and all claims, losses, liabilities
and expenses (including reasonable attorneys' fees) arising out of a claim by
any person or entity based on any such arrangement or agreement made or alleged
to have been made by Seller.
ARTICLE 16
INDEMNIFICATION
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16.1. INDEMNIFICATION BY SELLER. Notwithstanding the Closing, Seller
hereby agrees to indemnify, defend and hold Buyer harmless against and with
respect to, and shall reimburse Buyer for:
(a) Any and all losses, direct or indirect, liabilities, or damages
resulting from any untrue representation, breach of warranty, or nonfulfillment
of any covenant or obligation by any Seller contained herein or in any
certificate, document or instrument delivered to Buyer hereunder;
(b) Any and all obligations of Seller not assumed by Buyer pursuant to
the terms of this Agreement;
(c) Any and all losses, liabilities or damages resulting from the
operation or ownership of the Station prior to the Effective Time, including but
not limited to (i) any and all liabilities arising under the Station Licenses,
the Real Property Leases, or the Contracts which relate to events occurring
prior to the Effective Time, and; (ii) any fines, forfeitures, and other
penalties imposed by the FCC related to Seller's operation of the Station prior
to Closing (e.g.. commercial overages for children's programming) (collectively,
"FCC Penalties"); provided, however, that in the event the Seller/Buyer LMA
becomes effective, then Seller shall not indemnify Buyer for any FCC Penalties
attributable in whole or in part to Buyer's action or inaction under the
Seller/Buyer LMA.
(d) Any and all losses, liabilities or damages resulting from any
failure to comply with any "bulk sales" laws applicable to the transactions
contemplated by this Agreement;
(e) Any and all losses, liabilities or damages resulting from the
litigation listed on Schedule 7.9;
(f) Any and all actions, suits, proceedings, claims, demands,
assessments, judgments, costs and expenses, including reasonable legal fees and
expenses, incident to any of the foregoing or incurred in investigating or
attempting to avoid the same or to oppose the imposition thereof, or in
enforcing this indemnity, subject to the notice and opportunity to remedy
requirements of Section 16.3 hereof; and
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(g) Interest at the Prime Rate on any reimbursable expense or loss
incurred by Seller from the date of payment, in the case of a reimbursable
expense, and from the date of incurrence, in the case of any other losses, until
the date of reimbursement by Buyer.
16.2. INDEMNIFICATION BY BUYER. Notwithstanding the Closing, Buyer
hereby agrees to indemnify and hold the Seller harmless against and with respect
to, and shall reimburse the Seller for:
(a) Any and all losses, direct or indirect, liabilities, or damages
resulting from any untrue representation, breach of warranty, or nonfulfillment
of any covenant or obligation by Buyer contained herein or in any certificate,
document or instrument delivered to Seller hereunder;
(b) Any and all losses, liabilities or damages resulting from the
operation or ownership of the Station by Buyer on and after the Effective Time,
including but not limited to any and all liabilities arising under the Station
Licenses or the Contracts assigned to Buyer which relate to events occurring
after the Effective Time;
(c) Any and all actions, suits, proceedings, claims, demands,
assessments, judgments, costs and expenses, including reasonable legal fees and
expenses, incident to any of the foregoing or incurred in investigating or
attempting to avoid the same or to oppose the imposition thereof, or in
enforcing this indemnity, subject to the notice and opportunity to remedy
requirements of Section 16.3 hereof; and
(d) Interest at the Prime Rate on any reimbursable expense or loss
incurred by Seller from the date of payment, in the case of a reimbursable
expense, and from the date of incurrence, in the case of any other losses, until
the date of reimbursement by Buyer.
16.3. PROCEDURE FOR INDEMNIFICATION. The procedure for indemnification
shall be as follows:
(a) The party seeking indemnification under this Article 16 (the
"Claimant") shall give notice to the party from whom indemnification is sought
(the "Indemnitor") of any claim, whether solely between the parties or brought
by a third party, specifying (i) the factual basis for the claim, and (ii) the
amount of the claim. If the claim relates to an action, suit or proceeding filed
by a third party against Claimant, notice shall be given by
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Claimant within fifteen (15) business days after written notice of the action,
suit or proceeding was given to Claimant, or sooner if action is required by the
Indemnitor prior to the expiration of the fifteen (15) business days. In all
other circumstances, notice shall be given by Claimant within thirty (30)
business days after Claimant becomes, or should have become, aware of the facts
giving rise to the claim. Notwithstanding the foregoing, Claimant's failure to
give Indemnitor timely notice shall not preclude Claimant from seeking
indemnification from Indemnitor except to the extent that Claimant's failure has
materially prejudiced Indemnitor's ability to defend the claim or litigation.
(b) With respect to claims between the parties, following receipt of
notice from the Claimant of a claim, the Indemnitor shall have thirty (30)
business days to make any investigation of the claim that the Indemnitor deems
necessary or desirable. For the purposes of this investigation, the Claimant
agrees to make available to the Indemnitor and/or its authorized representatives
the information relied upon by the Claimant to substantiate the claim. If the
Claimant and the Indemnitor cannot agree as to the validity and amount of the
claim within the 30-day period (or any mutually agreed upon extension thereof),
the Claimant may seek appropriate legal remedy.
(c) With respect to any claim by a third party as to which the Claimant
is entitled to indemnification hereunder, the Indemnitor shall have the right at
its own expense to participate in or assume control of the defense of the claim,
and the Claimant shall cooperate fully with the Indemnitor, subject to
reimbursement for actual out-of-pocket expenses incurred by the Claimant as the
result of a request by the Indemnitor. If the Indemnitor elects to assume
control of the defense of any third-party claim, the Claimant shall have the
right to participate in the defense of the claim at its own expense. If the
Indemnitor does not elect to assume control or otherwise participate in the
defense of any third party claim, Claimant may, but shall have no obligation to,
defend or settle such claim or litigation in such manner as it deems
appropriate, and in any event Indemnitor shall be bound by the results obtained
by the Claimant with respect to the claim (by default or otherwise) and shall
promptly reimburse Claimant for the amount of all expenses (including the amount
of any judgment rendered), legal or otherwise, incurred in connection with such
claim or litigation. The Indemnitor shall be subrogated to all rights of the
Claimant against any third party with respect to any claim for which indemnity
was paid. Notwithstanding anything herein to the contrary, neither Indemnitor
nor Claimant shall settle any third party claim or litigation without providing
the other party reasonable prior notice of the terms of such settlement at least
five (5) business days prior to the
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execution of any such settlement, unless emergency circumstances dictate
otherwise; provided, that Indemnitor shall not enter into any such settlement of
third party claim without the Claimant's prior written approval, which approval
shall not be unreasonably withheld and shall, in any event, be provided if the
settlement provides a full release of liability for Claimant and does not
otherwise impose any liability on Claimant.
16.4. LIMITATIONS. Neither any Seller nor Buyer shall have any
obligation to the other party for any matter described in Section 16.1 or
Section 16.2, as the case may be, except upon compliance by the other party with
the provisions of this Article 16, particularly Section 16.3. Neither party
shall be required to indemnify the other party under this Article 16 for any
breach of any representation or warranty contained in this Agreement unless
written notice of a claim under this Article 16 was received by the party within
the pertinent survival period specified in Article 18 of this Agreement.
ARTICLE 17
TERMINATION RIGHTS
17.1. TERMINATION.
(a) This Agreement may be terminated by either Buyer or Seller, if the
party seeking to terminate is not in material breach of this Agreement, upon
written notice to the other upon the occurrence of any of the following:
(i) if, on or prior to the Closing Date, there is a material
breach by the other party with respect to the observance or in the due
and timely performance of any of its covenants or agreements contained
herein and such party fails to cure such breach within ten (10) business
days from receipt of written notice of such breach, and the terminating
party is not in material breach hereunder;
(ii) if, by Final Order, the FCC denies the FCC Application or
any part thereof or designates the FCC Application for a trial-type
hearing;
(iii) if there shall be in effect any judgment, final decree or
order that would prevent or make unlawful the Closing; or
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(iv) if the FCC or its staff has not issued the FCC Consent and
such FCC Consent has not become a Final Order within eighteen (18)
months of the date the FCC Application is submitted to the FCC.
(b) This Agreement may be terminated by Buyer, upon written notice to
Seller, if Buyer elects to terminate pursuant to Article 20 hereof.
(c) This Agreement may be terminated by Seller, upon written notice to
Buyer of Seller's election under Section 11.7 hereof (which has not been set
aside by Buyer's waiver).
(d) This Agreement shall automatically terminate pursuant to Section
2.2(a) or pursuant to the last sentence of Section 10.5(a) or upon termination
of the KWBQ-TV Agreement.
17.2. LIABILITY. Except as otherwise provided in Sections 2.2(a),
10.5(a), and 11.7 and Article 20 hereof, the termination of this Agreement under
Section 17.1 hereof shall not relieve any party of any liability for breach of
this Agreement prior to the date of termination.
ARTICLE 18
SURVIVAL OF REPRESENTATIONS,
WARRANTIES AND COVENANTS
The representations, warranties, covenants, indemnities and agreements
contained in this Agreement or in any certificate, document or instrument
delivered pursuant to this Agreement are and will be deemed and construed to be
continuing representations, warranties, covenants, indemnities and agreements
and shall survive the Closing for a period of two (2) years after the Closing
Date, except for (a) agreements under Section 10.4 of this Agreement, which
shall survive the Closing for five (5) years, and (b) indemnification
obligations resulting from or for third party claims, which shall survive the
Closing for a period of one (1) month after the last day of the longest
applicable statutory limitation period. No claim may be brought under this
Agreement or any other certificate, document or instrument delivered pursuant to
this Agreement unless written notice describing in reasonable detail the nature
and basis of such claim is given on or prior to the last day of the applicable
survival period. In the event such a notice is given,
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the right to indemnification with respect thereto shall survive the applicable
survival period until such claim is finally resolved and any obligations thereto
are fully satisfied. Any investigation by or on behalf of any party hereto shall
not constitute a waiver as to enforcement of any representation, warranty,
covenant or agreement contained herein.
ARTICLE 19
REMEDIES
19.1. DEFAULT BY SELLER. Seller recognizes that, in the event Seller
defaults in the performance of its obligations under this Agreement, monetary
damages alone will not be adequate. Buyer shall therefore be entitled in such
event, in addition to bringing suit at law or equity for money or other damages
(including costs and expenses incurred by Buyer in the preparation and
negotiation of this Agreement and in contemplation of the Closing hereunder) or
for indemnification under Article 16 hereof, to seek to obtain specific
performance of the terms of this Agreement. In any action to enforce the
provisions of this Agreement, Seller shall waive the defense that there is an
adequate remedy at law or equity and agree that Buyer shall have the right to
seek to obtain specific performance of the terms of this Agreement without being
required to prove actual damages, post bond or furnish other security. In
addition, Buyer shall be entitled to obtain from Seller court costs and
reasonable attorneys' fees incurred by it in successfully enforcing its rights
hereunder, plus interest at the Prime Rate on the amount of any judgment
obtained against Seller from the date of default until the date of payment of
the judgment. As a condition to seeking specific performance, Buyer shall not be
required to have tendered the Purchase Price specified in Section 2.1 of this
Agreement, but shall be ready, willing and able to do so.
19.2. DEFAULT BY BUYER. If the transactions contemplated by this
Agreement are not consummated as a result of Buyer's wrongful failure to close
hereunder, and Seller is not also in material breach hereunder, Seller shall be
entitled to, in addition to Buyer's obligation to pay the ▇▇▇ TBA Liquidated
Damages pursuant to Section 10.5(b) hereof, payment of Five Hundred Thousand
Dollars ($500,000) as liquidated damages in full settlement of any damages of
any nature or kind that Seller may suffer or allege to suffer as the result
thereof. It is understood and agreed that the amount of liquidated damages
represents Buyer's and Seller's reasonable estimate of actual damages and does
not constitute a penalty. Subject to Sections 10.5(b) and 19.3 hereof, which
shall govern responsibility for the ▇▇▇ TBA Liquidated Damages in the
circumstances specified
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therein, recovery of liquidated damages under this Section 19.2 shall be the
sole and exclusive remedy of Seller against Buyer for failure to consummate this
Agreement and shall be applicable regardless of the actual amount of damages
sustained. In addition, Seller shall be entitled to obtain from Buyer court
costs and reasonable attorneys' fees incurred by Seller in successfully
enforcing its rights hereunder, plus interest at the Prime Rate on the amount of
any judgment obtained against Buyer from the date of default until the date of
payment of the judgment. As a condition to obtaining liquidated damages, Seller
shall not be required to have tendered the Station Assets but shall be required
to demonstrate that it is willing and able to do so and to perform its other
closing obligations in all material respects.
19.3. REMEDIES RELATING TO VOLUNTARY TERMINATION. In the event that
either party has a right to terminate this Agreement pursuant to Section
17.1(a)(iv), the party who first provides written notice of its election to
terminate this Agreement pursuant to Section 17.1(a)(iv) shall be required to
pay the ▇▇▇ TBA Liquidated Damages or to cancel or pay the Note, as the case may
be.
ARTICLE 20
RISK OF LOSS
The risk of loss or damage to the Station Assets prior to the Effective
Time shall be upon Seller. Seller shall repair, replace and restore any damaged
or lost Station Asset to its prior condition as soon as possible and in no event
later than the Effective Time. If Seller is unable or fails to restore or
replace any such lost or damaged Station Asset(s) prior to the Closing and the
aggregate cost of such restoration or replacement would exceed One Hundred
Thousand Dollars ($100,000), Buyer may elect (a) to terminate this Agreement
pursuant to Article 17 hereof, (b) to consummate the transactions contemplated
by this Agreement on the Closing Date, in which event Seller shall assign to
Buyer at Closing Seller's rights under any insurance policy or pay over to Buyer
all proceeds of insurance covering such Station Asset's damage, destruction or
loss (plus an amount equal to any deductible), without further obligation or
liability to Buyer for such loss, or (c) delay the Closing Date until a date
within fifteen (15) days after Seller gives written notice to Buyer of
completion of the restoration or replacement of such Station Asset(s). If Seller
is unable or fails to restore or replace any lost or damaged Station Asset(s)
prior to the Closing Date and the aggregate cost of such restoration or
replacement would be One Hundred Thousand Dollars ($100,000) or less, Seller
shall
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reimburse Buyer for the cost of restoration or replacement of such asset(s) and
One Hundred Thousand Dollars ($100,000) of the Escrow Deposit shall be retained
in escrow for that purpose until such reimbursement obligation is satisfied. If
the delay in the Closing Date under this Article 20 would cause the Closing to
fall at any time after the period permitted by the FCC Consent, Seller and Buyer
shall file an appropriate request with the FCC for an extension of time within
which to complete the Closing.
ARTICLE 21
OTHER PROVISIONS
21.1. PUBLICITY. Except as required by applicable law or with the other
party's express written consent, no party to this Agreement nor any Affiliate of
any party shall issue any press release or make any public statement (oral or
written) regarding the transactions contemplated by this Agreement.
21.2. BENEFIT AND ASSIGNMENT. This Agreement shall be binding upon and
shall inure to the benefit of the parties hereto and their respective successors
and assigns. Neither Buyer nor Seller may assign this Agreement without the
prior written consent of the other parties hereto except that Buyer may assign
its rights and obligations under this Agreement to any other party; provided,
that Buyer will remain liable in the event such assignee fails to fulfill any of
Buyer's obligations hereunder.
21.3. ENTIRE AGREEMENT. This Agreement, along with the exhibits,
schedules and any other documents referenced herein, embodies the entire
agreement and understanding of the parties hereto and supersede any and all
prior agreements, arrangements and understandings relating to the matters
provided for herein. No amendment, waiver of compliance with any provision or
condition hereof, or consent pursuant to this Agreement shall be effective
unless evidenced by an instrument in writing signed by the party against whom
enforcement of any waiver, amendment, change, extension or discharge is sought.
21.4. HEADINGS. The headings set forth in this Agreement are for
convenience only and will not control or affect the meaning or construction of
the provisions of this Agreement.
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21.5. COMPUTATION OF TIME. If after making computations of time provided
for in this Agreement, a time for action or notice falls on Saturday, Sunday or
a Federal holiday, then such time shall be extended to the next business day.
21.6. GOVERNING LAW. The construction and performance of this Agreement
shall be governed by the laws of the State of New Mexico without regard to its
principles of conflict of law.
21.7. NOTICES. Any notice, demand or request required or permitted to be
given under the provisions of this Agreement shall be in writing, addressed to
the following addresses, or to such other address as any party may request in
writing.
To Seller: Ramar Communications II, Ltd.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Mr. ▇▇▇▇ ▇▇▇▇▇
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
With a copy (which shall not constitute notice) to:
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇ P.L.L.C.
▇▇▇▇▇ ▇▇▇
▇▇▇▇ ▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
Telecopy: 202-293-7783
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
To Buyer: ACME Television of New Mexico, LLC
ACME Television Licenses of New Mexico, LLC
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇. ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇ ▇▇▇▇▇
Telecopy: 314-989-0566
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
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With a copy (which shall not constitute notice) to:
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, LLP
▇▇▇▇ ▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. Paper, Esq.
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Any such notice, demand or request shall be deemed to have been duly delivered
and received (i) on the date of personal delivery, or (ii) on the date of
transmission, if sent by facsimile (but only if a hard copy is also sent by
overnight courier), or (iii) on the date of receipt, if mailed by registered or
certified mail, postage prepaid and return receipt requested, or (iv) on the
date of a signed receipt, if sent by an overnight delivery service, but only if
sent in the same manner to all persons entitled to receive notice or a copy.
21.8. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which will be deemed an original and all of which together
will constitute one and the same instrument.
21.9. FURTHER ASSURANCES. Seller shall at any time and from time to time
after the Closing execute and deliver to Buyer such further conveyances,
assignments and other written assurances as Buyer may reasonably request in
order to vest and confirm in Buyer (or their assignees) the title and rights to
and in all of the Station Assets to be and intended to be transferred, assigned
and conveyed hereunder.
ARTICLE 22
DEFINITIONS
Unless otherwise stated in this Agreement, the following terms when used
herein shall have the meanings assigned to them below (such meanings to be
equally applicable to both the singular and plural forms of the terms defined).
"Accounts Receivable" shall have the meaning set forth in Section
1.3(c).
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"Affiliate" shall mean any person or entity that is controlling,
controlled by or under common control with the named person or entity.
"Affiliate Transactions" shall mean the any transaction between the
Station and an Affiliate of any Seller.
"Agreement" shall mean this Asset Purchase Agreement, including the
exhibits and schedules hereto.
"Buyer" shall have the meaning set forth in the preamble to this
Agreement.
"Business Day," whether or not capitalized, shall mean every day of the
week excluding Saturdays, Sundays and Federal holidays.
"Claimant" shall have the meaning set forth in Section 16.3(a).
"Closing" shall have the meaning set forth in Section 1.1 hereof.
"Closing Date" shall mean the date on which the Closing is completed.
"Contracts" shall mean any and all of the contracts, agreements,
including leases (other than those relating to real property), commitments and
understandings, options, rights and interests, written or oral, of any Seller or
to which any Seller is a party, relating to the conduct of the business and
operations of the Station and listed in Schedule 1.2(d).
"Effective Time" shall mean 12:01 a.m., Mountain Time, on the Closing
Date.
"Environmental Laws" shall mean all applicable local, state and federal
statutes and regulations relating to the protection of human health or the
environment including the FCC's regulations concerning radio frequency
radiation.
"Escrow Agent" shall mean such Escrow Agent as the parties hereto
mutually agree upon no later than February 26, 1999.
"Escrow Agreement" shall mean the agreement between Buyer, Seller and
Escrow Agent in the form of Exhibit A hereto.
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"FCC" shall mean the Federal Communications Commission.
"FCC Application" shall mean the application or applications that Seller
and Buyer must file with the FCC requesting its consent to the assignment of the
Station Licenses.
"FCC Consent" shall mean the action by the FCC or its staff granting the
FCC Application.
"Final Order" shall mean action by the FCC (i) which has not been
vacated, reversed, stayed, set aside, annulled or suspended, (ii) with respect
to which no timely appeal, request for stay or petition for rehearing,
reconsideration or review by any party or by the FCC on its own motion, is
pending, and (iii) as to which the time for filing any such appeal, request,
petition, or similar document or for the reconsideration or review by the FCC on
its own motion under the Communications Act of 1934, as amended, and the rules
and regulations of the FCC, has expired.
"GAAP" shall mean generally accepted accounting principles, consistently
applied.
"Government Licenses" shall have the meaning set forth in Section 1.2(a)
hereof.
"Hazardous Substance" shall mean all hazardous or toxic waste or
material which, because of its quantity, concentration or physical, chemical or
infectious characteristics, may cause or pose a present or potential hazard to
human health or the environment when improperly used, treated, stored, disposed
of, generated, manufactured, transported or otherwise handled. "Hazardous
Substance" shall include, but is not limited to, any and all hazardous or toxic
substances, materials or wastes as defined or listed under the Resource
Conservation and Recovery Act, the Toxic Substances Control Act, the
Comprehensive Environmental Response, Compensation and Liability Act or any
comparable state statute or any regulation promulgated under any of such federal
or state statutes. "Hazardous Substance" shall not include ordinary quantities
of consumer or commercial products used in the normal course of broadcast
station operations, including grounds and building operation and maintenance;
provided, that such products have been stored, handled and disposed of in
accordance with applicable law and regulation.
▇▇
- ▇▇ -
"▇▇▇▇" shall mean the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust Improvements Act of
1976, as amended, and the regulations adopted thereunder.
"Indemnitor" shall have the meaning set forth in Section 16.3(a).
"Intellectual Property" shall mean all trademarks, trade names, service
marks, patents, franchises, copyrights, including applications for registration
of any of them, jingles, logos, slogans, licenses, permits and privileges, trade
secrets, and other similar intangible property rights and interests owned by or
licensed to Seller and used or useful in the operation of the Station.
"KWBQ-TV Agreement" shall mean that certain Asset Purchase Agreement
dated as of the date hereof by and between Seller and Buyer relating to the sale
and acquisition of Station KWBQ-TV, Santa Fe, New Mexico.
"▇▇▇ TBA Liquidated Damages" shall have the meaning set forth in Section
2.2(b)(1) hereof.
"Liens" shall mean mortgages, deeds of trust, liens, pledges, collateral
assignments, security interests, leases, subleases, conditional sales
agreements, judgments, easements, covenants, encroachments, encumbrances or
other defects of title.
"▇▇▇ TBA" shall mean that certain Time Brokerage Agreement by and
between Seller and ▇▇▇ dated December 12, 1994.
"Notice of Disagreement" shall have the meaning set forth in Section
5.2.
"Permitted Encumbrances" shall mean (a) liens for Taxes not yet due and
payable; (b) landlord's liens; and (c) statutory liens that were created in the
ordinary course of business that do not materially affect the current use and
enjoyment of the Station Assets.
"Personal Property" shall have the meaning set forth in Section 7.6.
"Prime Rate" shall mean a per annum rate equal to the "prime rate" as
published in the Money Rates column of the Eastern Edition of The Wall Street
Journal (or the average of such rates if more than one rate is indicated).
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"Proration Schedule" shall have the meaning set forth in Section 5.2.
"Purchase Price" shall have the meaning set forth in Section 2.1.
"Real Property" and "Real Property Leases" shall have the meanings set
forth in Section 7.5(a).
"Referee" shall have the meaning set forth in Section 5.2.
"Reversal Agreement" shall mean a reversal agreement between Seller and
Buyer in a mutually-agreeable form.
"ROFR Notice" shall have the meaning set forth in Section 10.5(a)
hereof.
"ROFR Exercise Notification" shall have the meaning set forth in Section
10.5(a) hereof.
"Seller" shall have the meaning set forth in the preamble to this
Agreement.
"Seller's Proration Amount" shall have the meaning set forth in Section
5.2.
"Station" shall mean television broadcast station KASY-TV, Albuquerque,
New Mexico.
"Station Assets" shall have the meaning set forth in Section 1.2.
"Station Licenses" shall mean the licenses, permits and other
authorizations, including any temporary waiver or special temporary
authorization, issued by the FCC to Seller in connection with the conduct of the
business and operation of the Station.
"TBA Escrow Agreement" shall mean the agreement between Buyer, Seller
and the TBA Escrow Agent in the form of Exhibit D hereto.
"TBA Escrow Deposit" shall have the meaning set forth in Section 2.2(c).
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the date first written above.
[SIGNATURES BEGIN ON PAGE IMMEDIATELY FOLLOWING]
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RAMAR COMMUNICATIONS II, LTD.
By: ▇▇ ▇▇▇▇▇ LLC, its General Partner
By: Ramar Communications, Inc., its Sole
Member
By: /s/ ▇▇▇▇ ▇▇▇▇▇
------------------------------
▇▇▇▇ ▇▇▇▇▇, President
ACME TELEVISION LICENSES OF NEW
MEXICO, LLC
By: /s/ ▇▇▇▇ ▇▇▇▇▇
------------------------------
▇▇▇▇ ▇▇▇▇▇, President
ACME TELEVISION OF NEW MEXICO, LLC
By: /s/ ▇▇▇▇ ▇▇▇▇▇
------------------------------
▇▇▇▇ ▇▇▇▇▇, President
49
EXHIBIT 10.2
The Following Schedules and Exhibits have been intentionally omitted by the
Registrants.
LIST OF EXHIBITS
Exhibit A Form of $500,000 Escrow Agreement
Exhibit B Form of Note
Exhibit C Form of Seller/Buyer ▇▇▇
▇▇▇▇▇▇▇ ▇ ▇▇▇▇ ▇▇ ▇▇▇ Escrow Agreement
LIST OF SCHEDULES
Schedule 1.2(a) Station Licenses
Schedule 1.2(b) Real Property
Schedule 1.2(c) Personal Property
Schedule 1.2(d) Contracts and Leases
Schedule 6.4 Buyer's Required Consents
Schedule 6.5 Buyer's Litigation
Schedule 7.3 Seller's Required Consents
Schedule 7.9 Seller's Litigation
Schedule 7.14 UCC Financing Statements
Schedule 7.16 Cable Carriage
A copy of any omitted Schedule or Exhibit will be provided to the Securities and
Exchange Commission upon request.