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EXHIBIT 10.78
SECOND AMENDMENT
This Second Amendment (this "Second Amendment"), made as of the 1st day
of November, 1999, is between Ramar Communications II, Ltd., a Texas limited
partnership ("Seller"), ACME Television of New Mexico, LLC, a Delaware limited
liability company ("ATNM"), and ACME Television Licenses of New Mexico, LLC, a
Delaware limited liability company ("ATLNM") (ATNM and ATLNM shall be
collectively referred to herein as "Buyer").
Seller and Buyer have entered into an Asset Purchase Agreement dated as
of February 19, 1999, as amended pursuant to an Amendment dated July 30, 1999
(the "First Amendment"), relating to the purchase and sale of Station KASY-TV,
Albuquerque, New Mexico (the "Purchase Agreement").
The Purchase Agreement provides that the Closing of the transaction
shall take place on October 31, 1999, unless Buyer, subject to Sections 2.2(c),
10.5(b) and 19.2 of the Purchase Agreement, elects to postpone Closing to a date
prior to February 1, 2000. Buyer and Seller have agreed to modify the terms and
conditions of the Purchase Agreement with respect to Closing and other matters
as set forth in this Second Amendment.
Accordingly, in view of the foregoing and the mutual promises and
covenants contained herein, Seller and Buyer hereby enter into this Second
Amendment to the Purchase Agreement.
1. Defined Terms. Unless otherwise defined, capitalized terms used
herein shall have the same meanings as set forth in the Purchase Agreement.
2. Closing. Section 1.1 of the Purchase Agreement shall be replaced in
its entirety with the following provision:
1.1. CLOSING. Except as otherwise mutually agreed upon by Seller
and Buyer, and subject to the satisfaction or waiver of the
conditions specified in Articles 11 and 12 of this Agreement
(except as otherwise expressly provided herein), the closing
of this transaction (the "Closing") shall take place on or
before December 3, 1999 on a
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date selected by Buyer with three business days' prior written
notice to Seller. The Closing shall be held at 10:00 a.m. in
the offices of Xxxxxxxxx, Xxxxxx & Xxxxxx P.L.L.C., 0000 X
Xxxxxx, X.X., Xxxxx 000, Xxxxxxxxxx, D.C., or at such place as
the parties may otherwise agree.
3. Purchase Price. Section 2.1 of the Purchase Agreement shall be
replaced in its entirety with the following provision:
2.1. PURCHASE PRICE. The total consideration to be paid by Buyer
for the Station Assets (the "Purchase Price") shall be
Twenty-Seven Million Sixty-Five Thousand Dollars
($27,065,000), plus all interest earned on the Additional
Escrow Deposit, as defined in Section 2.2(a)(2) below.
4. Payment of Purchase Price. Section 2.2 of the Purchase Agreement
shall be replaced in its entirety with the following provision:
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.
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(2) On November 1, 1999, Buyer shall deposit the amount of
Eleven Million Eight Hundred Seventy Five Thousand
($11,875,000) (the "Additional Escrow Deposit") with Escrow
Agent to be held pursuant to the terms and conditions of the
Escrow Agreement, together with all interest earned thereon.
At the Closing, the Additional Escrow Deposit, and all
interest earned thereon shall be paid by Escrow Agent to
Seller.
(b) Buyer will pay Seller Nine Hundred and Ninety Thousand
Dollars ($990,000) on or before August 10, 1999 (the "Purchase
Price Deposit").
(c) Buyer will pay Seller Twelve Million Dollars ($12,000,000)
by wire transfer of immediately-available funds on November 1,
1999 (the "Further Purchase Price Deposit").
(d) On November 1, 1999, Buyer shall pay One Million Seven
Hundred Thousand Dollars ($1,700,000) to Xxx Enterprises, Inc.
("Xxx") to satisfy Buyer's obligation to pay the One Million
Seven Hundred Thousand Dollars ($1,700,000) liquidated damages
(the "Xxx TBA Liquidated Damages"). Any Xxx TBA Liquidated
Damages owing to Xxx in excess of $1,700,000 shall be paid to
Xxx by Buyer when due.
(3) 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 Xxx which relates to the Xxx TBA Liquidated
Damages.
5. Covenants with Respect to Agreements with Xxx. Section 10.5(b) of
the Purchase Agreement shall be replaced in its entirety with the following
provision:
(b) On August 13, 1999, Seller shall provide notice to Xxx of
its intention to terminate the Xxx TBA pursuant to Section 4.3
thereof; provided however, that notwithstanding anything to
the contrary contained herein, if this Agreement is terminated
at any time after July 30, 1999 for any reason other than
Seller's material uncured breach hereof or Seller's voluntary
election pursuant to Section 17.1(a)(iv) hereof, Buyer shall
be responsible for paying the full
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amount of the Xxx TBA Liquidated Damages. Buyer agrees to
fulfill this obligation by paying Xxx One Million Seven
Hundred Thousand Dollars ($1,700,000) on November 1, 1999 as
set forth in Section 2.2(d) hereof, and, in addition, by
paying directly to Xxx when due any Xxx TBA Liquidated Damages
in excess of $1,700,000.
6. Conditions Precedent to Buyer's and Seller's Obligation to Close.
The first two sentences of Sections 11.8 and 12.5 shall be replaced in their
entirety with the following sentences:
Subject to Buyer's right to terminate the KWBQ-TV Agreement
pursuant to Section 17.1(e) of the 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. Unless Buyer exercises its right to terminate the
KWBQ-TV Agreement pursuant to Section 17.1(e) of the KWBQ-TV
Agreement, the parties shall consummate the KWBQ-TV Agreement
and commence the term of the Local Marketing Agreement
executed by Seller and ACME Television of New Mexico, LLC on
July 30, 1999.
The final sentences of Sections 11.8 and 12.5 are hereby deleted.
7. Documents to be Delivered at Closing. Section 13.1 shall be modified
to eliminate items 13.1(c), (d) and, subject to Buyer's right to terminate the
KWBQ-TV Agreement pursuant to Section 17.1(e) of the KWBQ-TV Agreement, (f).
Section 13.2 shall be modified to eliminate items 13.2 (g), (h) and, subject to
Buyer's right to terminate the KWBQ-TV Agreement pursuant to Section 17.1(e) of
the KWBQ-TV Agreement, (f).
8. Termination Rights. Section 17.1(a)(v) of the Purchase Agreement
shall be replaced in its entirety with the following provision:
(v) Subject to Article 19 hereof, this Agreement may be terminated by
either Seller or Buyer if the Closing shall not have been consummated
on or before December 3, 1999; provided, that the party terminating the
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Agreement is not then in material breach of its obligations under
this Agreement.
9. Remedies. The following sentence shall be added at the end of
Section 19.1 of the Purchase Agreement.
Notwithstanding anything to the contrary herein, if the transactions
contemplated by this Agreement are not consummated solely because of
Seller's material uncured breach of its obligations under this
Agreement, Seller shall immediately refund to Buyer the Purchase Price
Deposit and the Further Purchase Price Deposit along with interest
calculated from the date of the Seller's receipt of those funds through
and including the date of their return to Buyer, with such interest to
be calculated at the rate of 6% per annum, provided that any such
refund shall not relieve Buyer of its obligation to pay to Seller the
full Purchase Price at any consummation of the transactions
contemplated hereunder.
Section 19.2 of the Purchase Agreement shall be replaced in its
entirety with the following provision:
19.2. FAILURE OF CONSUMMATION. Notwithstanding anything to the contrary
herein, if the transactions contemplated by this Agreement are not
consummated for any reason other than Seller's material uncured breach
of its obligations under this Agreement, Seller shall be entitled to,
in addition to Buyer's fulfillment of Buyer's obligation to pay Xxx One
Million Seven Hundred Thousand Dollars ($1,700,000) and to pay any Xxx
TBA Liquidated Damages in excess of $1,700,000 pursuant to Section
10.5(b) hereof: (i) receive payment of the Escrow Deposit paid into
escrow under Section 2.2(a)(1) of this Agreement, (ii) retain the
Purchase Price Deposit paid to Seller under Section 2.2(b) of this
Agreement, and (iii) retain the Further Purchase Price Deposit paid to
Seller under Section 2.2(c) of this Agreement, and Buyer shall be
entitled to a return of the Additional Escrow Deposit paid into Escrow
under Section 2.2(a)(2) of this Agreement along with interest earned
thereon and on the Escrow Deposit. Seller and Buyer hereby agree that
Seller's retention of the funds denoted in items (ii) and (iii) in the
preceding sentence, Seller's receipt of the Escrow Deposit, and the
fulfillment of Buyer's obligation to pay the Xxx TBA Liquidated
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Damages pursuant to Section 10.5(b) shall be Seller's exclusive remedy
hereunder and in lieu of any and all other damages, including without
limitation all consequential, incidental and punitive damages, and
Seller hereby waives and shall have no further recourse against Buyer
or any of its affiliates, partners, shareholders, officers, directors,
representatives or agents under or in connection with this Agreement.
10. Amendment to Escrow Agreement. The parties agree to execute an
amendment to the Escrow Agreement to account for the changes herein and other
changes agreed to by the parties. The parties agree to give joint instructions
to the Escrow Agent to fulfill the purposes of this Agreement.
11. Effect of Second Amendment. Except as specifically modified by this
Second Amendment, all of the terms and conditions of the Purchase Agreement
continue in full force and effect and are hereby ratified and affirmed. To the
extent that any provision of this Second Amendment is inconsistent with or
conflicts with the provisions of the Purchase Agreement, the KWBQ-TV Purchase
Agreement or the Escrow Agreement dated as of March 1, 1999 by and among Seller,
ATNM and First Union National Bank, as amended, or any exhibits to any of the
foregoing documents, the provisions of this Second Amendment shall control and
such agreements shall be modified accordingly.
12. Distribution of funds. By executing this Second Amendment, each of
the parties agrees to the distribution of funds set forth in the Flow of Funds
Memorandum which is Schedule A hereto and agrees that, subject to Article 5 of
the Purchase Agreement, that such distribution reflects all the payments to be
made by and among the parties on or before Closing.
13. Counterparts. This Amendment 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.
[signatures on following page]
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RAMAR COMMUNICATIONS II, LTD.
By: XX Xxxxx, LLC, its General Partner
By: Ramar Communications, Inc., Sole Member
By: /s/ Xxxx Xxxxx
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Xxxx Xxxxx, President
ACME TELEVISION LICENSES OF
NEW MEXICO, LLC
By: /s/ Xxx Xxxxx
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Xxx Xxxxx, Executive Vice-President
ACME TELEVISION OF NEW MEXICO, LLC
By: /s/ Xxx Xxxxx
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Xxx Xxxxx, Executive Vice-President
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SCHEDULE A
FLOW OF FUNDS MEMORANDUM FOR KWBQ/KASY TRANSACTION
(REVISED 11/1/99)
KASY PURCHASE PRICE: $ 27,065,000.00
KWBQ PURCHASE PRICE: $ 1,000.00
KASY PURCHASE PRICE
ACME Payment to Ramar on 8/10/99 $ 990,000.00
Escrow Deposit Held by First Union National Bank $ 500,000.00
ACME Deposit into First Union National Bank
Escrow Account (for Additional Escrow Deposit) on 11/1/99 $ 11,875,000.00
ACME Payment to Xxx
(relating to KASY/Xxx TBA Termination) on 11/1/99 $ 1,700,000.00
ACME Payment to Ramar on 11/1/99 $ 12,000,000.00
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Total: $ 27,065,000.00
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KWBQ PURCHASE PRICE
Ramar Payment of KWBQ Purchase Price on 12/3/99 $ 1,000.00
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PAYMENT TO BROKER
ACME Payment to Xxxxx Xxxxx, as Broker, on11/1/99: $ 250,000.00
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