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EXHIBIT 10.5A
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EXECUTION COPY
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AMENDMENT
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This Amendment (the "Amendment"), made as of the 30th day of July, 1999,
is between Ramar Communications II, Ltd., a Texas limited partnership
("Seller"), ACME Television of New Mexico, LLC, a Delaware limited liability
company ("ATNM"), ACME Television Licenses of New Mexico, LLC, a Delaware
limited liability company ("ATLNM") (ATNM and ATLNM shall be collectively
referred to herein as "Buyer"), and, for purposes of Section 5 below, ACME
Television Holdings, LLC.
Seller and Buyer have entered into an Asset Purchase Agreement dated as of
February 19, 1999 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 is
required to take place no later than ten (10) days after the conditions in
Articles 11 and 12 of the Purchase Agreement have been fulfilled. All such
conditions shall have been fulfilled (or shall be able to be fulfilled) prior
to August 3, 1999; therefore, and the Closing should occur on or before August
13, 1999. Buyer desires to delay Closing until October 31, 1999. Seller is
willing to delay Closing under the terms and conditions set forth in this
Amendment.
Accordingly, Seller and Buyer have agreed to enter into this 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 October 31, 1999, unless Buyer, subject to Sections
2.2(c), 10.5(b) and 19.2 hereof, elects to postpone the Closing to a
date prior to
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February 1, 2000. 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-Five Million
Three Hundred Ninety Thousand Dollars ($25,390,000), subject to upward
adjustment pursuant to Section 11.8 hereof, plus: (a) any Additional
Purchase Price payable to Seller pursuant to Section 2.2(c) hereof, and
(b) subject to Section 10.5(b) hereof, any amount paid by Ramar to Xxx
pursuant to Section 4 ("Xxx Purchase Option") of that certain December
12, 1994 Equipment Lease between Xxx and Ramar Communications, Inc.,
Ramar's predecessor in interest (the portion of the Purchase Price
related to the Xxx Purchase Option shall be referred to herein as the
"Xxx Purchase Option Cost").
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.
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.
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(3) Buyer will pay Seller Nine Hundred and Ninety Thousand Dollars
($990,000) on or before August 10, 1999.
(b) The payment schedule of the remaining Twenty-Three Million Five
Hundred Thousand Dollars ($23,500,000) plus the Xxx Purchase Option
Cost (if any), subject to upward adjustment pursuant to Section 11.8
hereof, will depend on whether the Closing occurs after December 31,
1999 (the "Year 2000 Closing Scenario"), or the Closing occurs prior to
January 1, 2000 (the "1999 Closing Scenario"), as follows:
(1) Under the Year 2000 Closing Scenario, the entire Twenty Three
Million Five Hundred Thousand Dollars ($23,500,000) plus the Xxx
Purchase Option Cost (if any), subject to upward adjustment pursuant to
Section 11.8 hereof, will be paid to Seller at Closing.
(2) Under the 1999 Closing Scenario, on the Closing Date, Seller shall
assign to Buyer and Buyer shall assume, all of Seller's rights and
obligations under the Xxx 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 (substantially in the form
of Exhibit D), together with all interest earned thereon, and (ii) pay
Twenty-One Million Eight Hundred Thousand Dollars ($21,800,000) 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 One
Million Seven Hundred Thousand Dollars ($1,700,000) liquidated
damages, or, if the Xxx TBA is terminated during the Renewal Term
thereof, as defined therein, such higher or lower amount of liquidated
damages required to be paid to Xxx under the Xxx TBA (the "Xxx TBA
Liquidated Damages") as assignee of the Xxx TBA or pursuant to Section
10.5 hereof and Buyer and Seller agree to give Escrow 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 Xxx TBA Liquidated Damages and the termination of the
Xxx TBA shall be released to Seller (with interest thereon paid to
Buyer). 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
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subsequent agreement they may mutually reach with each other and Xxx
which relates to the Xxx TBA Liquidated Damages.
(c) If the Closing does not occur on or before October 31, 1999, Buyer
shall owe Seller an additional purchase price (the "Additional
Purchase Price"), payable at Closing and calculated at the rate of
ten percent (10%) per annum, retroactive to August 13, 1999 on the
Purchase Price (less the Nine Hundred and Ninety Thousand Dollar
Payment referenced in Subsection 2.2(a)(3) of Section 2 hereof) until
such date as the Closing occurs. If the Closing occurs on or before
October 31, 1999, or if the Closing does not occur, Seller shall not be
entitled to any Additional Purchase Price.
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
amount of the Xxx TBA Liquidated Damages. Buyer agrees to fulfill this
obligation by making the TBA Escrow Deposit within five (5) days of
such termination of this Agreement, and, in addition, by paying
directly to Xxx when due any Xxx 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 pursuant
to Section 17.1(a)(iv) hereof, Seller shall be responsible for paying
the full amount of the Xxx 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 Xxx TBA Liquidated Damages
incurred by Buyer up to a maximum of $1,700,000. Ten (10) business
days in advance of Closing or no later than December 31, 1999,
whichever is earlier, Buyer shall notify Seller in writing as to
whether or not Buyer
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wishes Seller to exercise the Xxx Purchase Option. If Buyer notifies
Seller hereunder that Buyer does not wish the Xxx Purchase Option to
be exercised, Buyer shall not be liable for the Xxx Purchase Option
Cost.
Notwithstanding anything to the contrary herein, if Closing does not
occur on or before December 31, 1999, for any reason other than
Seller's material uncured breach hereof, Buyer shall be responsible
for paying the full amount of the Xxx TBA Liquidated Damages. If the
Closing does not occur by December 31, 1999 for any reason other than
Seller's material uncured breach hereof, Buyer, in order to secure
its obligation under this subsection, shall deposit the TBA Escrow
Deposit on January 5, 2000 with TBA Escrow Agent to be held pursuant
to the TBA Escrow Agreement, together with all interest earned
thereon. ACME Television Holdings, LLC hereby unconditionally
guarantees Buyer's obligation to deposit the TBA Escrow Deposit with
TBA Escrow Agent pursuant to this subsection.
6. Conditions Precedent to Buyer's Obligation to Close. The preamble to
Article 11 of the Purchase Agreement shall be replaced in its entirety with the
following provision:
Subject to Section 19.2 hereof, 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.
7. Termination Rights.
The following provision shall be added at the end of Section 17.1(a):
(v) This Agreement may be terminated by either Seller or Buyer, upon
written notice to the other party, if the Closing shall not have been
consummated on or before January 31, 2000, provided, that if the FCC
Consent shall not have become a Final Order by January 31, 2000, then this
subparagraph (v) shall be null and void and of no effect whatsoever.
8. Remedies. The following clause shall be added at the beginning of
Section 19.1 of the Purchase Agreement:
"Notwithstanding anything to the contrary herein,"
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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 deposit the TBA
Escrow Deposit in order to pay the Xxx TBA Liquidated Damages pursuant to
Section 10.5(b) hereof: (i) retain or, if not yet received, to receive,
the Nine Hundred and Ninety Thousand Dollar ($990,000) payment under
Section 2.2(a)(3) of this Agreement, and (ii) payment of Five Hundred
Thousand Dollars ($500,000), with the aggregate One Million Four Hundred
and Ninety Thousand Dollars ($1,490,000) constituting 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. Recovery of liquidated damages under this Section 19.2 and the
fulfillment of Buyer's obligation to pay the Xxx TBA Liquidated Damages
pursuant to Section 10(b)(5) hereof 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.
9. Amendment to Escrow Agreement. Buyer and Seller agree to enter into
an amendment to the Escrow Agreement dated as of March 1, 1999 by and between
Seller, ATNM And First Union National Bank. The amendment will provide that if
the Closing does not occur because of Buyer's material uncured breach, the
parties shall direct the Escrow Agent to pay the Escrow Deposit to Seller, and
all interest thereon to Buyer.
10. Execution of LMA. On the date hereof, Seller and ATNM agree to enter
into a Local Marketing Agreement which is based on Exhibit B (the "KWBQ LMA") to
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that certain Asset Purchase Agreement dated as of February 19, 1999 between
Seller and Buyer relating to the purchase and sale of Station KWBQ-TV, Santa
Fe, New Mexico (the "KWBQ-TV Purchase Agreement").
11. Effect of Amendment. Except as specifically modified by this
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 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, or any exhibits to any of the foregoing documents, the
provisions of this Amendment shall control and such agreements shall be modified
accordingly.
12. 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/ Xxxxxxx X. Xxxxx
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Xxxxxxx X. Xxxxx, President
ACME TELEVISION OF NEW MEXICO, LLC
By: /s/ Xxxxxxx X. Xxxxx
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Xxxxxxx X. Xxxxx, President
ACME TELEVISION HOLDINGS, LLC
(as Guarantor of the obligations set forth in Section 5 of this Amendment):
By: /s/ Xxxxxxx X. Xxxxx
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Xxxxxxx X. Xxxxx
