PURCHASE AGREEMENT
THIS AGREEMENT is made this 28th day of May, 1997, by and among
ACME TELEVISION LICENSES OF TENNESSEE, LLC ("ATLT"), a limited liability company
organized and existing under the laws of the State of Tennessee, and ACME
TELEVISION OF TENNESSEE, LLC ("ATT"), a limited liability company organized and
existing under the laws of the State of Tennessee (with ATLT and ATT
collectively referred to as "Purchaser"), and C.W. TV, INC. ("CWTV"), A FLORIDA
CORPORATION AND THE GENERAL PARTNER OF CROSSVILLE TV LIMITED PARTNERSHIP (THE
"PARTNERSHIP"), A FLORIDA LIMITED PARTNERSHIP; XXXXX X. XXXXXX; XXXXX X. XXXXXX;
XXXXXXXX X. XXXXXXXX; XXXX X. XXXXXXXXXX; XXXXX X. X. XXXXXX; XXXXX X. XXXXXX,
CUSTODIAN FOR XXXXXX X. XXXXXX, A MINOR; XXX X. XXXXXX; THE XXXXX TRUST U/A
DATED 10/18/95, XXXXXXX X. XXXX, TRUSTEE; THE XXXXXX TRUST U/A DATED 10/18/95,
XXXXXXX X. XXXX, TRUSTEE; XXXX XXXXXX XXXXX IRREVOCABLE TRUST U/A DATED JANUARY
18, 1996, XXXXXX X. XXXXX, TRUSTEE; XXXXXXXXX XXX XXXXX IRREVOCABLE TRUST U/A
DATED JANUARY 18, 1996, XXXXXX X. XXXXX, TRUSTEE; XXXXXXX X. XXXX IRREVOCABLE
TRUST U/A DATED JANUARY 18, 1996, X. X. XXXX, TRUSTEE; AND XXXXXXX X. XXXX
IRREVOCABLE TRUST U/A DATED JANUARY 18, 1996, X. X. XXXX, TRUSTEE (with all of
the foregoing except the Partnership collectively referred to herein as
"Sellers"), and the PARTNERSHIP.
The parties hereto have agreed that it is in their mutual best
interests for Purchaser to purchase from Sellers all of the general and limited
partnership interests in the Partnership on terms and conditions set forth
herein. The
parties hereto desire to make this Agreement for the purpose of setting forth
those terms and conditions, including certain representations, warranties and
covenants to be made in connection with the aforesaid purchase and sale of such
partnership interests.
THEREFORE, in consideration of the mutual representations,
warranties and covenants contained herein, the parties hereto have agreed and do
hereby agree as follows:
ARTICLE I
DEFINITIONS
The following terms used in this Agreement shall have the
meanings set forth below:
1.01 AFFILIATE - Any person, firm, corporation, partnership or
association controlling, controlled by or under common control with another
person, firm, corporation, partnership or association.
1.02 CLOSING - The closing referred to in Section 2.02 hereof.
1.03 CLOSING DATE - The date referred to in Section 2.02 hereof.
1.04 CODE - The Internal Revenue Code of 1986, as amended.
1.05 FCC OR COMMISSION. The Federal Communications Commission.
1.06 FCC LICENSES. Any and all licenses, permits and other
authorizations issued by the FCC to or held by the
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Partnership with respect to the Station, as well as any and all applications for
modification, extension or renewal thereof.
1.07 FINANCIAL STATEMENTS - The Financial Statements of the
Partnership described in Section 5.03 hereof.
1.08 GENERAL PARTNER - C.W. TV, Inc., a Florida corporation.
1.09 PARTNER - A general or limited partner in the Partnership.
1.10 PARTNERSHIP AGREEMENT - The Partnership Agreement of
Crossville TV Limited Partnership dated July 12, 1995, as amended by a First
Amendment dated October 19, 1995.
1.11 PARTNERSHIP INTEREST - All of a Partner's right, title and
interest in and to the Partnership.
1.12 SCHEDULES - Those Schedules referred to in Article III, IV
and V hereof.
1.13 STATION - Television station XXXX-TV, Crossville, Tennessee.
1.14 STATION ASSETS. All of the Partnership's right, title and
interest in property, real and personal, tangible and intangible, and used or
useful in the operation of the Station, including but not limited to the FCC
Licenses, together with any improvements, replacements, additions or
modifications thereto between the date of this Agreement and the Closing Date.
1.15 UNDISCLOSED LIABILITIES - Any material liability or
obligation of the Partnership, whether liquidated or contingent, as of the
Closing Date that is not fully reflected or
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reserved against in the Financial Statements or fully disclosed in a Schedule.
ARTICLE II
PURCHASE AND SALE OF THE PARTNERSHIP INTERESTS
2.01 AGREEMENT TO SELL. For the consideration hereinafter
provided and subject to the terms and conditions herein set forth, on the
Closing Date each of the Sellers shall sell, assign and deliver to Purchaser,
and Purchaser shall purchase and acquire from such Seller, all of his or her
Partnership Interests. At the Closing each Seller shall cause to be delivered to
Purchaser assignments of his or her Partnership Interests.
2.02 CLOSING. The closing of the purchase and sale of the
Partnership Interests and payment of the Purchase Price shall take place at the
offices of the Partnership in Tallahassee, Florida on a date set by Purchaser
within ten (10) business days after the consent of the Federal Communications
Commission ("FCC") to the transfer of control of the FCC Licenses has become a
Final Order (meaning an order which is no longer subject to judicial or
administrative review); provided that waiver of such Final Order requirement may
be made in the sole discretion of Purchaser) or at such other time and place as
shall be mutually agreeable to the parties hereto.
ARTICLE III
PURCHASE PRICE
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3.01 PURCHASE PRICE. The total Purchase Price for the acquisition
of the Partnership Interests from the Sellers shall be (i) Thirteen Million Two
Hundred Thousand Dollars ($13,200,000) PLUS (ii) an amount equal to the total of
all liabilities incurred or amounts paid by the Partnership after January 7,
1997 (and projected on Schedule 3.01 hereto or otherwise agreed between the
General Partner (acting on behalf of Sellers) and Purchaser) in connection with
the contracts and invoices for construction of the Station and any improvements
thereto set forth in Schedule 3.01 hereto (collectively, the "Tower Project"),
including, without limitation, the broadcasting tower, antenna and transmitting
facilities.
3.02 PAYMENT OF PURCHASE PRICE. At the Closing, Purchaser shall
pay and deliver the Purchase Price to the Escrow Agent named in the Escrow
Agreement, which the parties will execute contemporaneously with the execution
of this Agreement and which will be in the form of Exhibit A attached hereto, in
cash or by wire transfer, reduced by the amount of the Escrow Deposit (as
hereinafter defined) and other adjustments provided for in this Agreement. The
Escrow Agent shall transfer on the Closing Date, pay by bank charge or wire
transfer, to each of the Sellers the pro rata amount of the Purchase Price due
each Seller in accordance with Schedule 3.02, less a pro rata reduction for the
Post-Closing Escrow Deposit (as hereinafter defined) and the aforementioned
adjustments. Notwithstanding the foregoing provisions, the Escrow Agent shall
pay to the General Partner or
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such other creditors of the Partnership (other than Purchaser) such amounts as
may be necessary to pay off the liabilities of the Partnership (as approved by
the Sellers and Purchaser) other than the Tower Project costs identified in
Schedule 3.01 and such amounts shall be deducted on a pro rata basis from the
amount to be paid to each Seller.
3.03 DEPOSIT. The parties hereby confirm that simultaneously with
the execution and delivery of this Agreement, Purchaser has deposited with the
Escrow Agent the sum of Six Hundred Sixty Thousand Dollars ($660,000) (the
"Escrow Deposit") to be applied as provided herein and in the Escrow Agreement
among the Escrow Agent, Purchaser, Sellers, and the Partnership. In the event of
a termination of this Agreement, the Escrow Deposit shall be paid to the Sellers
or Purchaser as provided in Section 11.03 below. The parties agree to give joint
written instructions to the Escrow Agent in accordance with the provisions of
this Agreement.
3.04 DELIVERY OF THE PARTNERSHIP INTERESTS. Within five (5)
business days after the execution of this Agreement, each Seller shall deliver
to the Escrow Agent a duly executed assignment of such Seller's Partnership
Interest in the form set forth in the Escrow Agreement. The Escrow Agent shall
hold the Sellers' assignments for delivery to Purchaser at the Closing, or, upon
termination of this Agreement, for return to the Sellers. Upon receipt of the
Purchase Price from Purchaser less the Escrow Deposit and any adjustments
specified herein, the
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Escrow Agent shall thereupon deliver the assignments of the Partnership
Interests and irrevocable powers of attorney to Purchaser.
3.05 THE POST-CLOSING ESCROW. At Closing, the Escrow Agent shall
retain $2,000,000 of the Purchase Price (the "Post- Closing Escrow Deposit"),
which shall be held, managed and distributed in accordance with this Agreement
and pursuant to the terms and conditions of the Escrow Agreement in the form
annexed hereto as Exhibit A. The Post-Closing Escrow Deposit shall be held for
the purpose of satisfying any of the Sellers' or Partnership's indemnification
obligations hereunder for twenty-four (24) months; provided, that (i) if Sellers
have received timely written notice of a Claim for indemnification by Purchaser
prior to the expiration of the twenty-four (24) month period, the amount of the
Claim shall continue to be held in escrow until the final arbitration decision
resolving the Claim or final settlement or adjudication of the Claim, at which
time any portion of the Post-Closing Escrow Deposit which is not required to be
paid to Purchaser shall then be distributed to Sellers (pro rata as set forth in
Schedule 3.02); (ii) one-half (1/2) the Post-Closing Escrow Deposit (less the
amount of any Claim made by Purchaser) shall be released to Sellers twelve (12)
months from the Closing Date; (iii) any Seller hereunder shall have recourse
only to other Sellers in the event any or all of the Post-Closing Escrow Deposit
is paid to Purchaser in discharge of an individual Seller or Sellers' liability
hereunder; and (iv) accrued interest
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on the Post-Closing Escrow Deposit shall at all times belong to and be paid to
Sellers.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF SELLERS
Each Seller severally, but not jointly, and on its own behalf and
not on behalf of any other Seller, hereby represents and warrants to Purchaser
as follows:
4.01 TITLE TO PARTNERSHIP INTERESTS. Each Seller is a partner in
the Partnership and is the owner of all right, title and interest in and to that
percentage of Partnership Interests set forth next to the Seller's name on
Schedule 3.02, free and clear of any and all claims, liens and encumbrances of
any kind or nature, except as set forth in Schedule 4.01 and except for
restrictions expressly set forth in the Partnership Agreement; provided that all
of the foregoing restrictions shall have been either waived or satisfied prior
to Closing.
4.02 CAPACITY AND VALIDITY. Each Seller has the full power,
capacity and authority necessary to enter into and perform its obligations under
this Agreement. This Agreement constitutes the valid and binding obligation of
each Seller, enforceable in accordance with its terms, except as may be limited
by bankruptcy, insolvency or other laws affecting creditors' rights generally,
or as may be modified by a court of equity in an action for specific
performance. Neither the execution and delivery of this Agreement by such Seller
nor the consummation of the transactions contemplated hereby will violate any
provisions
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of any law, or any regulation, policy or order of any court or any governmental
unit to which such Seller is subject, nor will such execution, delivery or
consummation conflict with, result in a breach of or constitute a default under
any indenture, mortgage, lease, agreement, or other instrument to which such
Seller is a party or by which such Seller is bound, or result in the creation of
any lien, charge or encumbrance upon such Seller's Partnership Interest.
4.03 ORGANIZATION. Each Seller that is listed as a trust is a
trust duly created and validly existing under the laws of the state set forth in
its organizing trust instrument, with the power and authority to own and operate
its assets, to enter into this Agreement, and to fulfill each and every
obligation of such Seller under this Agreement.
4.04 LITIGATION. No Seller is a party to any, or has any
knowledge of any threatened, litigation (i) by which any third party asserts an
interest in the Seller's Partnership Interest or (ii) which seeks to or would
otherwise impair or prevent Seller's conveyance of that Seller's Partnership
Interest to Purchaser.
4.05 COMPLIANCE WITH APPLICABLE SECURITY LAWS. The Partnership
Interests to be conveyed to Purchaser hereunder are intended to be conveyed by
each Seller pursuant to a valid exemption from the registration requirements of
the Securities Act of 1933, as amended (the "Securities Act") and in compliance
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with all applicable federal and state securities laws, regulations and policies.
4.06 INSOLVENCY. No insolvency proceedings of any character,
including, without limitation, bankruptcy, receivership, reorganization,
composition or arrangement with creditors, voluntary or involuntary, affecting
the Seller or the Seller's Partnership Interest, is pending or, to the best of
the Seller's knowledge, threatened, and except for the partnership interest
pledge set forth in Schedule 4.01, the Seller has not made any assignment for
the benefit of creditors, nor taken any actions with a view to, or which would
constitute the basis for, the institution of any such insolvency proceedings.
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF THE PARTNERSHIP
The Partnership and the General Partner jointly and severally
represent and warrant to Purchaser as follows:
5.01 ORGANIZATION OF PARTNERSHIP. The Partnership is a limited
partnership duly organized, validly existing and in good standing under the laws
of the State of Florida. The Partnership has all requisite partnership power and
authority to carry on its business, to own, hold, lease or operate the Station
Assets and its other properties. The Partnership is duly qualified to do
business and is in good standing in the State of Tennessee. Schedule 3.02 sets
forth the names, addresses and Partnership Interests of each Partner. A true and
correct copy of the Partnership Agreement, with all amendments thereto, and
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the Certificate of Limited Partnership, is attached hereto in Schedule 5.01.
5.02 ORGANIZATION OF GENERAL PARTNER. The General Partner is a
corporation duly organized, validly existing and in good standing under the laws
of the State of Florida. All of the issued and outstanding shares of common
stock of the General Partner are owned by Xxxxxxx X. Xxxxxx, a Florida resident.
5.03 FINANCIAL STATEMENTS.
(a) Annexed hereto in Schedule 5.03 are unaudited
financial statements and an unaudited balance sheet for the calendar year 1996
and for the month ending March 31, 1997 (the "Financial Statements"). The
Financial Statements fairly present in all material respects the Partnership's
financial income, expenses, assets, liabilities, and the results of operations
of the Station as of the dates and for the periods indicated. Except for costs
and liabilities associated with the Tower Project, no event has occurred that
would make such Financial Statements inaccurate or misleading in any material
respect.
(b) Except as disclosed on the Financial Statements or in
the Schedules, there exist no material liabilities of the Partnership,
contingent or absolute, matured or unmatured, known or unknown. Except for
expenses incurred in connection with the Tower Project and except as disclosed
in the Schedules, since March 31, 1997, (i) the Partnership has not incurred any
material obligation or liability (contingent or otherwise), (ii) there has not
been any discharge or satisfaction
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of any material obligation or liability owed to the Partnership, and (iii) there
has not occurred any sale of the Station Assets except those non-material assets
disposed of in the ordinary course of business.
5.04 TAXES. The Partnership has timely filed with all appropriate
governmental authorities any and all federal, state, commonwealth, local, and
other tax or information returns and tax reports (including, but not limited to,
those for any income tax, unemployment compensation, Social Security, payroll,
sales and use, profit, excise, privilege, occupation, property, ad valorem,
franchise, license, school and any other tax under the laws of the United States
or of any state or any commonwealth or any municipal entity or of any political
subdivision with valid taxing authority) due for all periods ended on or before
the date hereof. The Partnership has paid in full all federal, state,
commonwealth, foreign, local and other governmental taxes, estimated taxes,
interest, penalties, assessment and deficiencies (collectively, "Taxes") which
have become due pursuant to such returns or without returns or pursuant to any
assessments received by the Partnership. Such returns and forms are true,
correct and complete in all material respects, and, to the knowledge of the
General Partner and the Partnership, the Partnership has no liability for any
Taxes in excess of the Taxes shown on such returns. The Partnership is not a
party to any pending action or proceeding and, to the knowledge of the General
Partner and the Partnership, there is no action or proceeding
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threatened by any governmental authority against the General Partner of the
Partnership for assessment or collection of any Taxes, and no unresolved claim
for assessment or collection of any Taxes has been asserted against the General
Partner or the Partnership.
5.05 PERSONAL PROPERTY.
(a) Schedule 5.05(a) contains a true and correct copy of
all material machinery, vehicles, equipment and other personal property (the
"Personal Property") owned by the Partnership. The Partnership has good and
marketable title to all of the Personal Property, free and clear of all liens,
claims, charges, security interests and other encumbrances of any kind or
nature, except as disclosed on Schedule 5.05(a). The material Station Assets,
including without limitation any and all studio equipment, satellite receiving
antennas, transmitters, studio-transmitter links, transmission lines and
broadcast antennas, wherever located, meet all government requirements and are
sufficient to enable the Partnership to operate the Station as presently
operated in accordance with the FCC Licenses.
(b) Schedule 5.05(b) contains a list of all material leases
(the "Operating Leases") for machinery, vehicles, equipment and personal
property used or employed by the Partnership, including expiration dates, terms,
details or purchase options, if any, and, with respect to any personal property
subject to a security interest or similar agreement, details thereof, together
with copies of such instruments. Each
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of the Operating Leases is in full force and effect, and there are no existing
defaults or events of default, real or claimed, or events which would, with
notice or lapse of time or both, constitute defaults, the consequence of which,
individually or in the aggregate, would have a material adverse effect on the
Station Assets or the business or financial condition of the Partnership.
5.06 REAL PROPERTY.
(a) The Partnership does not own any real property.
(b) Schedule 5.06(b) contains a true and correct copy of
all leases (the "Real Estate Leases") for real property leased to the
Partnership. Each Real Estate Lease is in full force and effect and there are no
existing defaults or events of default, real or claimed, or events which would,
with notice or lapse of time or both, constitute a material default.
(c) All improvements on the real estate owned by, leased to
or used by the Partnership are in material compliance with all applicable
federal, state and local laws, regulations and policies, including but not
limited to zoning and building ordinances and health and safety ordinances.
5.07 PATENTS AND TRADEMARKS. Schedule 5.07 lists all trade names,
trademarks, trade styles and service marks licensed to, held by or lawfully used
by the Partnership in the conduct of its business at any time since formation of
the Partnership. The Partnership has not received notice that its use of any
such trade names, trademarks, trade styles or service marks violates
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or infringes upon any rights claimed therein by third parties. The Partnership
does not own or have rights as licensee in any patents or patent applications,
and the Partnership has not received notice that its operations violate or
infringe upon any claims of any patent or patent application owned or held by
any third party.
5.08 INSURANCE. Schedule 5.08 contains a summary of all policies
of fire, liability and other forms of insurance owned or held by the Partnership
or in which the Partnership is a named insured. The Partnership is not in
default regarding the provisions of any such policy and has not failed to give
any notice or present any material claim thereunder in due and timely fashion.
5.09 NO DEFAULTS. Neither the execution and delivery by the
Partnership of this Agreement nor the consummation by the Partnership of the
transactions contemplated herein are events that, by themselves or with the
giving of notice or the passage of time or both, constitute a material violation
or of will materially conflict with or result in any material breach of or any
material default under (a) the terms, conditions, or provisions of any
arbitration award, judgment, law, order, decree, writ, governmental policy or
regulation to which the Partnership is subject, (b) the Partnership Agreement or
other organizational documents of the Partnership, or (c) any agreement or
instrument to which the Partnership is a party or by which the Partnership is
bound, or result in the creation or imposition of
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any lien, charge, or encumbrance on any of the Station Assets or other
properties of the Partnership.
5.10 LITIGATION. Except as disclosed in Schedule 5.10, the
Partnership has not been operating under and is not subject to, or in default
with respect to, any order, judgment, writ, injunction, decree of any court or
any federal, state, municipal, or other governmental department, commission,
board, agency, or instrumentality, foreign or domestic, which has had or could
reasonably be expected to have a material adverse effect on the Station Assets
or the manner in which the Partnership currently operates the Station. Except as
disclosed in Schedule 5.10, there is no litigation, arbitration, dispute,
proceeding or investigation ("Litigation") pending by or against, or, to the
best of the General Partner's and the Partnership's knowledge, threatened
against the Station or the Partnership which relates to or affects the Station
Assets or the business of the Partnership and which materially interferes or
could reasonably be expected materially to interfere with the Partnership's (a)
right, title to, or interest in the Partnership or the Station Assets, (b)
operation of the Station, or (c) ability to consummate the transactions
contemplated by this Agreement.
5.11 COMPLIANCE WITH LAWS. Except as disclosed in Schedule 5.11,
neither the General Partner nor the Partnership has failed to comply in any
material respect with, or is in default in any material respect under, any laws,
ordinances,
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requirements, regulations, policies, or orders applicable to the Partnership,
the Station Assets, or the Partnership's business.
5.12 LABOR MATTERS. The Partnership has no employees.
5.13 CONTRACTS AND COMMITMENTS.
(a) Schedule 5.13 contains a true and accurate copy, or in
the case of oral contracts, an accurate description of all material terms of all
material contracts or commitments to which the Partnership is a party or by
which the Partnership benefits or is bound, and which are not provided in any
other Schedule.
(b) Each of the contracts listed in Schedule 5.13 is in
full force and effect, and there are no material existing defaults or events of
default, real or claimed, or events which would, with notice or lapse of time or
both, constitute material defaults. Except as reflected in Schedule 5.13, the
continuation, validity and effectiveness of such contracts, and all other
material terms thereof, will in no way be affected by the transactions
contemplated by this Agreement.
5.14 POWER OF ATTORNEY. Neither the General Partner nor the
Partnership has given any power of attorney regarding its business, properties
and assets except for powers given to Xxxx X. Xxxxxx Ventures, Inc. as
"Partnership Administrator" in accordance with the Partnership Agreement. A true
copy of such Designation of Partnership Administrator is attached hereto as
Schedule 5.14.
5.15 AUTHORITY. Except for restrictions on the transfer of
Partnership Interests set forth in the Partnership
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Agreement and other restrictions described in any Schedule to this Agreement,
all of which will be removed or satisfied prior to Closing, neither the
execution and delivery of this Agreement by the Partnership nor the consummation
of the transactions contemplated hereby will violate any provisions of the
Partnership Agreement, any law, or any regulation, policy or order of any court
or any governmental unit to which the Partnership is subject, nor will such
execution, delivery or consummation conflict with, result in a breach of, or
constitute a default under any indenture, mortgage, lease, agreement, or other
instrument to which the Partnership is a party or by which it is bound, or
result in the creation of any lien, charge or encumbrance upon any of the
Partnership's assets or properties.
5.16 BANKS. Schedule 5.16 lists all banks or other financial
institutions with which the Partnership has an account and the account numbers
thereof and names of persons authorized to act in connection therewith.
5.17 GOVERNMENTAL AUTHORIZATIONS. The Partnership is the holder
of licenses and other authorizations from governmental authorities, set forth in
Schedule 5.17, true copies of which are included in Schedule 5.17. Each of such
licenses and other authorizations are in full force and effect. The FCC Licenses
and the Determinations of No Hazard to Air Navigation by the Federal Aviation
Administration ("FAA") constitute all of the licenses and other authorizations
required under the Communications Act of 1934, as amended (the "Act"), and the
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current rules, regulations, and policies of the FCC for the operation of the
Station as currently conducted and for construction of the tower as specified in
file number XXXX-000000XX. The FCC Licenses authorize the operation of the
Station for the license term expiring on August 1, 1997. Except as set forth in
Schedule 5.17, the Partnership has filed with the FCC all material applications,
reports and other disclosures required by the Act and by FCC rules and policies.
As of the date of this Agreement, there is not pending or, to the best of the
Partnership's knowledge, threatened, any petition, complaint, objection (whether
formal or informal), order to show cause, investigation, or other action by or
before the FCC or any court to revoke, cancel, rescind, modify or refuse to
renew any of the FCC Licenses, or which would otherwise have a material adverse
impact on the operation of the Station or the construction of the tower as
specified in file number XXXX-000000XX. Other than proceedings of general
applicability to the broadcasting industry, to the best of the General Partner's
or Partnership's knowledge there is not now pending or threatened any other
petition, complaint, objection (whether formal or informal), investigation,
order to show cause, notice of violation, notice of apparent liability, or
notice of forfeiture or other proceeding by or before the FCC or any court
against the Partnership with respect to any matter affecting the Station. Except
as is set forth in Schedule 5.17, the Station is operating in material
compliance with the FCC Licenses, the Act, and the
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rules, regulations and policies of the FCC and the FAA, and the Station's signal
coverage is not subject to any interference which materially impairs the
reception of its signal within the Station's Grade A or Grade B contours. Except
as is set forth in Schedule 5.17, neither the General Partner nor the
Partnership knows of any reason why the Partnership's FCC Licenses would not be
renewed for a full term in due course without modification.
5.18 ENVIRONMENTAL. Except as disclosed in Schedule 5.18, no
hazardous or toxic waste, substance, material or pollutant (collectively
"Hazardous Waste"), as defined under the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended, 42 U.S.C. ss.9601 et seq.,
the Toxic Substances Control Act, as amended, 15 U.S.C. ss.2601 et seq., the
Resource Conservation and Recovery Act of 1976, as amended, 42 U.S.C. ss.6901 et
seq., the Clean Water Act, as amended, 42 U.S.C. ss.1251 ET SEQ., the Clean Air
Act, as amended, 42 U.S.C. ss.7401 ET SEQ. or any other applicable federal,
state or local law, or any regulations or policies adopted pursuant to such laws
(the foregoing laws, regulations and policies collectively referred to herein as
the "Environmental Laws") has been released, emitted or discharged by the
Partnership or, to the General Partner's or Partnership's knowledge, is
currently located in or on the Station Assets or in, on or under the real
property on which any of the Station Assets are situated in violation of any
Environmental Laws. The Station Assets and Partnership's use thereof are not in
material violation of any Environmental Laws,
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including but not limited to FCC rules, policies and guidelines concerning RF
radiation. The Partnership has not received any notice, summons, citation,
directive, letter or other communication, written or oral, from the United
States, the State of Tennessee, or any other party concerning any intentional or
unintentional action or omission on the part of the Partnership or any other
party which resulted in the releasing, spilling, leaking, pumping, pouring,
emitting, emptying, discharging, injecting, escaping, leeching, dumping, or
disposing of Hazardous Waste on, above or under Station Assets owned or used by
the Partnership in operation of the Station.
5.19 BROKERS. There is no broker or finder or other person who
would, as a result of any agreement of or action taken by the General Partner or
the Partnership, have any valid claim against any of the parties to this
Agreement for a commission or brokerage fee in connection with this Agreement or
the transactions contemplated herein.
5.20 PARTNERSHIP ACTION. All Partnership actions and proceedings
necessary to be taken by or on the part of the Partnership in connection with
the transactions contemplated by this Agreement and necessary to make the
Agreement effective have been duly and validly taken. This Agreement has been
duly and validly authorized, executed, and delivered by the Partnership and
constitutes the valid and binding agreement of Partnership, enforceable in
accordance with and subject to its respective terms, except as enforceability
may be limited by laws affecting
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the enforcement of creditor rights or equitable principles generally.
5.21 INSOLVENCY. No insolvency proceedings of any character,
including, without limitation, bankruptcy, receivership, reorganization,
composition or arrangement with creditors, voluntary or involuntary, affecting
the Partnership or any of the Station Assets is pending or, to the best of the
General Partner's or the Partnership's knowledge, threatened, and the
Partnership has not been made any assignment for the benefit of creditors, nor
taken any actions with a view to, or which would constitute the basis for, the
institution of any such insolvency proceedings.
5.22 CABLE CARRIAGE. Schedule 5.22 annexed hereto sets forth a
correct and complete list of (i) all cable television systems which carry the
Station's signal on the date hereof under the FCC's "must carry" rules; and (ii)
all cable television systems which carry the Station's signal pursuant to
retransmission consent agreements (with copies of such agreements included in
the schedule).
5.23 TRADE, BARTER AND SALES AGREEMENTS. Schedule 5.23 annexed
hereto (a) discloses the material terms of any and all trade and barter
agreements entered into by the Partnership relating to the Station which are
currently in effect or for which a trade or barter obligation remains
unsatisfied, and
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(b) discloses any sales agreements entered into by the Partnership relating to
the Station which have a term longer than thirty (30) days.
5.24 CERTAIN INTERESTS AND RELATED PARTIES. Except as set forth
in Schedule 5.24, (a) neither the General Partner, Partnership Administrator nor
any Seller has any material interest in any property used in or pertaining to
the Station, nor are any of the foregoing indebted or otherwise obligated to the
Partnership; (b) the Partnership is not indebted or otherwise obligated to the
General partner, Partnership Administrator or any Seller or others except for
amounts due under normal arrangements as to salary or reimbursement of ordinary
business expenses not unusual in amount or significance; (c) neither the General
Partner nor Partnership Administrator has any interest whatsoever in any
corporation, firm, partnership or other business enterprise which has had any
business transactions with the Partnership relating to the Station; and (d) no
Seller has entered into any contract with the Partnership relating to the
Station. Except as set forth in Schedule 5.24, the consummation of the
transactions contemplated by this Agreement will not (either alone, or with the
occurrence of any termination or constructive termination of any arrangement, or
with the lapse of time, or both) result in any benefit or payment (severance or
otherwise) arising or becoming due from the Partnership to the General Partner
or Partnership Administrator.
23
5.25 PARTNERSHIP BOOKS AND RECORDS. Schedule 5.25 annexed hereto
identifies any and all material Partnership books of account, Station records,
and Partnership records to be delivered to Purchaser at the Closing.
5.26 COMPLIANCE WITH APPLICABLE SECURITIES LAWS. The Partnership
Interests to be conveyed to Purchaser hereunder (a) were offered to the original
purchasers of the Partnership Interests and transferred to the Sellers pursuant
to valid exemptions from the registration requirements of the Securities Act and
in compliance with all applicable state securities laws, regulations, and
policies; and (b) are intended to be transferred to Purchaser pursuant to valid
exemptions from the registration requirements of the Securities Act and in
compliance with all applicable federal and state securities laws, regulations,
and policies.
5.27 PROGRAMMING CONTRACTS. Annexed hereto as Schedule 5.27 are
all contracts for programming entered into and in effect at the Station. All
such contracts: (a) contain a full indemnity from the program provider relating
to the content of the program provided thereunder; and (b) are cancelable on 15
days notice or less, except as set forth on Schedule 5.27.
5.28 STATION ASSETS. Except as set forth in Schedule 5.28 or any
other Schedule to this Agreement, all Station Assets and other property of the
Partnership are free and clear of any and all liens, debts, charges, judgments,
security interests and
24
other encumbrances of any nature or kind except those specifically permitted
under this Agreement.
5.29 CORRECTNESS OF REPRESENTATIONS. No representation or
warranty of the General Partner or Partnership in this Agreement or in any
statement, certificate or Schedule furnished by the General Partner or the
Partnership pursuant hereof, or in connection with the transactions contemplated
hereby, contains any untrue statement of a material fact or omits to state any
material fact necessary in order to make the statements contained therein not
inaccurate or misleading.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES OF PURCHASER
The Purchaser represents and warrants to Sellers as follows:
6.01 ORGANIZATION AND CAPITALIZATION. Purchaser is a limited
liability company duly organized, validly existing and in good standing under
the laws of the State of Tennessee. Purchaser has all requisite power and
authority to carry on its business, to own, lease or operate its properties and
to consummate the transactions contemplated by this Agreement.
6.02 AUTHORITY. The execution and delivery of this Agreement and
the consummation of the transactions contemplated hereby have been duly and
validly authorized by Purchaser. No further action of any nature is required
pursuant to the organizational documents of the Purchaser. This Agreement
constitutes the valid and binding obligation of Purchaser, except
25
as may be limited by bankruptcy, insolvency or other laws affecting creditors'
rights generally or as may be modified by a court of equity in an action for
specific performance. The execution, delivery and performance of this Agreement
will not violate or result in default under any provision of the organizational
documents of Purchaser or any material commitment, indenture, license or other
obligation to which Purchaser is a party, will not contravene any law, rule or
regulation of any administrative agency or governmental body or any order, writ,
injunction or decree of any court, administrative agency or governmental agency
applicable to Purchaser.
6.03 FINANCIAL CAPABILITY. Purchaser has the financial capability
to consummate the transactions contemplated by this Agreement.
6.04 INVESTMENT INTENT.
(a) Purchaser is acquiring the Partnership Interests for
its own account and for investment purposes only, and not with a view to, or
for, resale, distribution or fractionalization thereof, in whole or in part.
(b) Purchaser acknowledges and agrees that the Partnership
Interests may not be sold, transferred or conveyed except pursuant to an
effective registration statement under the Securities Act and the rules and
regulations promulgated thereunder, and in compliance with all applicable state
securities laws, or pursuant to an available exemption from such registration
requirements and applicable state securities laws.
26
(c) Purchaser acknowledges that the offer and sale of the
Partnership Interests pursuant to this Agreement are intended to be exempt from
the registration requirements under the Securities Act.
6.05 QUALIFICATION AS A LICENSEE. To Purchaser's knowledge, there
are no facts relating to Purchaser that, under the Act, or the rules,
regulations and policies of the FCC and the FAA, would cause the FCC to deny an
application to assign control of the FCC Licenses to Purchaser or impose any
condition materially adverse to Purchaser in connection therewith. Purchaser is
in compliance with Section 310(b) of the Act.
ARTICLE VII
OBLIGATIONS AND COVENANTS OF SELLERS
AND THE PARTNERSHIP PENDING THE CLOSING
7.01 CONDUCT OF THE PARTNERSHIP'S BUSINESS PRIOR TO CLOSING. From
the date hereof to the Closing Date, and except (a) as otherwise provided in
this Article VII or (b) to the extent that Purchaser shall otherwise consent in
writing, the Partnership shall make its best efforts to continue to operate its
business in the ordinary course and consistent with past practice, and use its
best efforts to (a) preserve intact its goodwill and reputation and to preserve
its relationships with persons having business dealings with it, (b) except as
set forth in Schedule 5.17, comply with all laws applicable to the conduct of
the business of the Partnership the failure of which would result in material
injury to the Partnership, and (c) comply in
27
all material respects with all contracts and Real Estate Leases to which the
Partnership is a party or by which the Partnership is bound.
7.02 ACCESS AND INFORMATION. From the date hereof to the Closing
Date the Partnership shall afford to Purchaser, its counsel, accountants and
other representatives, free and full access to all the offices, properties,
books, contracts, commitments and records of the Partnership and shall furnish
such persons with all information (including financial and operating data)
concerning its affairs as they reasonably may request, including copies and
extracts of pertinent records, documents and contracts. The Partnership and the
General Partner will cooperate with all reasonable requests with respect to any
audit conducted by Purchaser of the Partnership's finances or Station Assets.
7.03 NOTIFICATION OF CHANGES. Between the date hereof and the
Closing Date, the Partnership shall promptly (and in any event within five (5)
business days) notify Purchaser of any material adverse change in the business
or assets of the Partnership, the institution of or the threat of institution of
legal proceedings against the Partnership, or upon becoming aware of any event
that would cause or constitute a material breach of any of the representations
or warranties of the Partnership.
7.04 CERTAIN ACTS PROHIBITED. Except for the Tower Project costs
and contracts, between the date hereof and the Closing Date the Partnership
shall not, without the prior written
28
consent of Purchaser, which consent shall not be unreasonably withheld:
(a) incur any material liability or encumber or permit the
encumbrance of any properties or assets of the Partnership;
(b) dispose of or contract to dispose of any property or
assets of the Partnership (except those non-material assets consumed or disposed
of in the ordinary course of business); or
(c) enter into any lease or contract for the purchase,
lease or acquisition of real estate or any lease or contract for the purchase,
lease or acquisition of personal property (except for non-material personal
property needed in the ordinary course of business);
(d) enter into any employment agreement or collective
bargaining agreement; or
(e) make any material change in the insurance policies
described in Schedule 5.08.
7.05 MAINTENANCE OF STATION. The Partnership and the General
Partner shall maintain in full force and effect through and including the
Closing Date the existing property damage, liability, and other insurance with
respect to the Station Assets to cover contingencies that can reasonably be
anticipated.
7.06 FCC APPLICATION. Within ten (10) days after execution of
this Agreement, the Partnership and the General Partner shall prepare and
provide Purchaser's counsel with the transferor's portion of an appropriate
application (the
29
"Application") with the FCC requesting its written consent to the transfer of
control of the FCC Licenses from the Sellers to Purchaser. The Partnership and
the General Partner shall diligently take, or cooperate in the taking of, all
steps necessary and appropriate to expedite the preparation of the Application
and its prosecution to a favorable conclusion. The Partnership and the General
Partner will promptly provide Purchaser with a copy of any pleading, order, or
other document served on it relating to the Application. The Partnership and the
General Partner will use their respective best efforts and otherwise cooperate
with Purchaser in responding to any information requested by the FCC related to
the Application, in making any amendment to this Agreement requested by the FCC
which does not adversely affect the Partnership or Sellers in a material manner,
and in defending against any petition, complaint, or objection which may be
filed against the Application.
7.07 CONFIDENTIAL INFORMATION. If the transactions contemplated
in this Agreement are not consummated for any reason, neither the General
Partner nor any Seller shall disclose to third parties any information
designated as confidential and received from Purchaser or its agents in the
course of investigating, negotiating, and consummating the transactions
contemplated by this Agreement; provided, that no information shall be deemed to
be confidential that (a) becomes publicly known or available other than through
disclosure by any Seller or
30
the General Partner; (b) is rightfully received by any Seller or the General
Partner from a third party; or (c) is independently developed by any Seller or
the General Partner. All originals of all material provided to any Seller or the
General Partner by Purchaser or its agents shall be returned to Purchaser and
all copies thereof shall be destroyed.
7.08 CONSUMMATION OF AGREEMENT. The Partnership and the Sellers
shall make every reasonable effort to fulfill all conditions to be fulfilled by
the Partnership and Sellers, respectively, under this Agreement and make every
reasonable effort to cause the transactions contemplated by this Agreement to be
fully carried out.
7.09 CONSENTS. The Partnership and the General Partner shall make
every reasonable effort to obtain or cause to be obtained prior to the Closing
consents to the change of control of the Partnership contemplated herein of all
material contracts and leases included in the Station Assets that require the
consent of any third party by reason of the transactions provided for in this
Agreement. The Partnership and the General Partner shall use commercially
reasonable efforts prior to Closing to obtain the signature of each lessor of a
material lease held by the Partnership as lessee to an estoppel certificate
which shall set forth, as to such lease: (a) the current term thereof; (b) the
number of options to renew such term, and for what additional term; (c) the
monthly rent, and that such rent is current; (d) that neither party is in
material
31
default thereunder and all material obligations have been performed; and (e) to
their knowledge, there is no zoning or similar restriction applicable to the
leased property which impairs or would impair lessee's proposed operations or
permitted activities on such property.
7.10 WAIVER OF TRANSFER RESTRICTIONS. Each Seller hereby waives
the restrictions in Articles 8, 9 and 11 of the Partnership Agreement with
respect to the assignment by all other Sellers of their Partnership Interests as
provided in this Agreement and consents to such assignments.
7.11 DELIVERY OF PARTNERSHIP INTERESTS FREE OF DEBT. At or prior
to the Closing, Sellers shall cause the Partnership to pay all of the
Partnership's existing debts and liabilities, except for debts and liabilities
incurred with respect to the Tower Project referred to in Section 3.01 of this
Agreement, which will be assumed and performed in full by Purchaser.
7.12 DISTRIBUTION OF CASH FROM PARTNERSHIP. At or prior to the
Closing, the Sellers shall withdraw all cash and cash equivalents from the
Partnership and shall be entitled to any cash prepayments or deposits made on
behalf of the Partnership.
7.13 FINAL TAX RETURN. The Sellers shall cause the Partnership to
file a federal and state income tax return for the period beginning January 1,
1997 and ending on the Closing Date.
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ARTICLE VIII
COVENANTS OF PURCHASER PENDING THE CLOSING
Purchaser covenants and agrees that, from the date of this
Agreement to and including the Closing, it will take, or refrain from taking,
the following actions:
8.01 REPRESENTATION AND WARRANTIES. Purchaser shall give notice
to Sellers promptly upon the occurrence of, or upon becoming aware of the
impending or threatened occurrence of, any event that would cause or constitute
a material breach of any of the representations and warranties of Purchaser in
this Agreement.
8.02 APPLICATION FOR COMMISSION CONSENT. Within ten (10) days
after execution of this Agreement, Purchaser shall prepare and file an
appropriate Application with the FCC requesting its written consent to the
transfer of control of the FCC Licenses from the Sellers to Purchaser. Purchaser
will diligently take, or cooperate in the taking of, all steps necessary and
appropriate to expedite the preparation of the Application and its prosecution
to a favorable conclusion. Purchaser will promptly provide the Partnership with
a copy of any pleading, order, or other document served on it relating to the
Application. Purchaser will use its best efforts and otherwise cooperate with
the Partnership in responding to any information requested by the FCC related to
the Application or this Agreement, in making any amendment to this Agreement
requested by the FCC which does not adversely affect Purchaser in
33
a material manner, and in defending against any petition, complaint, and other
objection which may be filed against the Application. The FCC filing fees shall
be paid by Purchaser.
8.03 CONFIDENTIAL INFORMATION. If the transactions contemplated
in this Agreement are not consummated for any reason, Purchaser shall not
disclose to third parties any information designated as confidential and
received from Sellers or the Partnership or its agents in the course of
investigating, negotiating, and performing the transactions contemplated by this
Agreement; provided, however, that no information shall be deemed to be
confidential that (a) become publicly known or available other than through
disclosure by Purchaser; (b) is rightfully received by Purchaser from a third
party; or (c) is independently developed by Purchaser. All originals of material
provided by the Partnership and Sellers to Purchaser or its agents shall be
returned to the Partnership and Sellers and all copies thereof destroyed.
8.04 CONSUMMATION OF AGREEMENT. Purchaser shall make every
reasonable effort to fulfill all conditions to be fulfilled by Purchaser under
this Agreement and make every reasonable effort to cause the transactions
contemplated by this Agreement to be fully carried out.
8.05 NOTICE OF PROCEEDINGS. Purchaser will promptly (and in any
event within five (5) business days) notify Sellers upon becoming aware of any
actual or threatened claim, dispute, arbitration, litigation, complaint,
judgment, order, decree,
34
action or proceeding relating to Purchaser, the Station, the Station Assets, or
the consummation of this Agreement or any transaction contemplated herein.
ARTICLE IX
CONDITIONS TO OBLIGATIONS OF PURCHASER
The obligations of Purchaser to consummate the transactions
provided for herein are, at the option of Purchaser, subject to the satisfaction
of the following conditions on or prior to the Closing Date:
9.01 COMPLIANCE BY SELLERS AND THE PARTNERSHIP. All the terms,
covenants and conditions of this Agreement to be complied with and performed by
the Sellers or the Partnership on or before the Closing Date shall have been
complied with and performed in all material respects.
9.02 REPRESENTATIONS AND WARRANTIES OF SELLERS AND THE
PARTNERSHIP. The representations and warranties of Sellers and the Partnership
contained herein and in the Schedules, statements and documents delivered
pursuant hereto or in connection with the transactions contemplated hereby shall
be true and correct in all material respects on and as of the Closing Date with
the same effect as though all such representations and warranties had been made
on and as of that date, and Purchaser shall have received a certificate to such
effect dated the Closing Date signed by the Sellers and the Partnership.
35
9.03 LITIGATION. No litigation shall be pending or threatened
before any court, governmental agency, bureau, board or other authority seeking
to enjoin the consummation of this Agreement or seeking damages or other relief
pursuant to any material claim not disclosed herein or in the Schedules
delivered pursuant hereto on the date of this Agreement.
9.04 XXXX-XXXXX-XXXXXX FILING. All requirements, if any, imposed
with respect to the transactions contemplated by this Agreement under the
Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, 15 U.S.C.A. ss.18a, shall
have been satisfied and the applicable waiting period under such Act shall have
expired by or prior to the Closing Date.
9.05 FCC CONSENT. The FCC shall have (a) approved the
Partnership's 1997 license renewal application without modification, and (b)
given all requisite consent to the acquisition of control of the Partnership by
Purchaser as provided in this Agreement, and such approval shall have become a
Final Order (subject to waiver of such final order requirement in the sole
discretion of Purchaser).
9.06 PARTNERSHIP FREE OF DEBT. The Partnership, the Station
Assets and all other property of the Partnership shall be free and clear of any
and all liens, debts, charges, judgments, security interests and other
encumbrances of any nature or kind except those specifically permitted under
this Agreement including debt and liabilities incurred in connection with the
Tower Project.
36
9.07 DELIVERIES OF SELLER AT THE CLOSING. Sellers shall have
delivered or caused to be delivered to Purchaser at the Closing the following
items:
(a) valid assignments of the Partnership Interests to
Purchaser;
(b) the books and records of the Partnership referred to in
Section 5.25;
(c) certificates of good standing for the Partnership from
the State of Florida and the State of Tennessee dated no less than thirty (30)
days prior to the Closing Date;
(d) the certificates referred to in Section 9.02 hereof;
(e) a certificate of the General Partner that all
liabilities of the Partnership have been satisfied (except for Tower Project
costs described in Schedule 3.01);
(f) the results of a UCC, lien and docket search regarding
the Partnership and Station Assets in Florida and Tennessee;
(g) one or more opinions of Sellers' counsel and/or special
counsel in substantially the form annexed hereto as Exhibit B (see Exhibit B as
to which party pays for the legal opinions); and
(h) the third party consents of any party required to
enable Purchaser to assume any material contracts or Real Estate Leases or other
items included in the Station Assets.
37
9.08 PERMITS AND APPROVALS. The Partnership shall have obtained all
material permits and approvals from governmental authorities necessary for the
operation of the Station as currently conducted and for the construction of the
tower as currently proposed.
ARTICLE X
CONDITIONS TO OBLIGATIONS OF SELLERS
The obligation of Sellers to consummate the transactions provided
for herein is subject to the satisfaction of the following conditions on or
prior to the Closing Date:
10.01 COMPLIANCE BY PURCHASER. All the terms, covenants and
conditions of this Agreement to be complied with and performed by Purchaser on
or before the Closing Date shall have been complied with and performed in all
material respects.
10.02 REPRESENTATIONS AND WARRANTIES OF PURCHASER. The
representations and warranties of Purchaser contained herein shall be true and
correct in all material respects on and as of the Closing Date, with the same
force and effect as though such representations and warranties had been made on
and as of the Closing Date, and Purchaser shall have furnished to Sellers a
certificate to such effect dated the Closing Date signed by the Managing Member
of Purchaser.
10.03 FCC CONSENT. The FCC shall have (a) approved the
Partnership's 1997 license renewal application without modification or any
condition materially adverse to Purchaser, and (b) given all requisite consent
to the acquisition of control
38
of the Partnership by Purchaser as provided in this Agreement, and such approval
shall have become a Final Order (subject to waiver of such final order
requirement in the sole discretion of Purchaser).
10.04 RELEASE FROM TOWER PROJECT LIABILITIES. The General Partner
and the Sellers shall have received releases from appropriate contractors,
subcontractors and vendors of all liabilities and obligations associated with
the Tower Project.
10.05 DELIVERIES BY PURCHASER ON THE CLOSING DATE. Purchaser
shall have delivered or caused to be delivered to Sellers at Closing the
following items:
(a) the Purchase Price (less the Post-Closing Escrow
Deposit and the adjustments specified herein);
(b) the certificate set forth in Section 10.02;
(c) certificates of good standing from the State of
Tennessee; and
(d) an opinion of Purchaser's counsel in substantially the
form annexed hereto as Exhibit C.
ARTICLE XI
TERMINATION
11.01 RIGHT OF TERMINATION. This Agreement and the transactions
contemplated by this Agreement may be terminated at any time prior to the
Closing Date:
(a) by the mutual consent of Purchaser and Sellers (acting
unanimously).
39
(b) by Purchaser in the event that the conditions set forth
in Article IX of this Agreement shall not have been satisfied or waived within
270 days of the date of this Agreement or such later date as shall be agreed
upon by Purchaser and Sellers (acting unanimously);
(c) by Sellers (acting unanimously) in the event that the
conditions set forth in Article X of this Agreement shall not have been
satisfied or waived within 270 days from the date of this Agreement or such
later date as shall be agreed upon by Purchaser and Sellers (acting
unanimously);
(d) by either Purchaser or Sellers if the FCC denies the
Application in an order which has become a Final Order; or
(e) by either Purchaser or Sellers (acting unanimously) if
any action or proceeding before any court or other governmental body or agency
shall have been instituted in good faith by an unrelated third party (i) to
restrain, modify, or prohibit the transactions contemplated by this Agreement;
(ii) to recover damages from Purchaser, the Partnership or Sellers if such
action or proceeding could result in the imposition of a material liability
against or affecting the business or properties of Purchaser, the Partnership or
Sellers in the reasonable opinion of the party seeking to terminate this
Agreement, or (iii) to require Purchaser, Partnership or Sellers to take any
action that would have a material and adverse effect on the business or
properties of Purchaser, the Partnership or Sellers in the reasonable opinion of
the party seeking to
40
terminate this Agreement unless either Purchaser, the Partnership or Sellers
causes such action or proceeding to be dismissed within sixty (60) days after it
is filed.
11.02 NOTICE OF TERMINATION. Notice of termination of this
Agreement, as provided for in this Article XI, shall be given by the parties so
terminating to the other parties hereto in accordance with the provisions of
Section 14.07 of this Agreement.
11.03 EFFECT OF TERMINATION. In the event that this Agreement is
terminated pursuant to Section 11.01, except for the confidentiality provisions
of Sections 7.07 and 8.03, which shall remain in full force and effect, this
Agreement shall become void and of no further force and effect, without any
liability on the part of any of the parties hereto, and the Escrow Agent shall
return the Escrow Deposit to Purchaser. Notwithstanding the foregoing sentence,
if the Closing does not occur and the non-occurrence of the Closing is the
result of a material breach by Purchaser of its obligations under this
Agreement, and neither the Partnership nor the Sellers have materially breached
their obligations under this Agreement, the Escrow Agent shall disburse the
Escrow Deposit to the Sellers as liquidated damages resulting to Sellers from
such default. Receipt of the Escrow Deposit by Sellers shall be the exclusive
remedy that any of the Sellers or the Partnership may otherwise have as a result
of Purchaser's breach. If the non-occurrence of the Closing is not the result of
a material breach by Purchaser of its obligations under this
40
Agreement, or if the Partnership or the Sellers have materially breached their
obligations under this Agreement, the Escrow Agent shall return the Escrow
Deposit to Purchaser. Accrued interest on the Escrow Deposit shall at all times
belong to and be paid to Purchaser.
11.04 RISK OF LOSS. If the Station Assets are materially damaged
by wind, fire or other casualty prior to the Closing, the Partnership shall use
its best efforts to restore or replace such damaged property prior to the
Closing. If such damaged property is not restored or replaced prior to the
Closing, the transactions contemplated by this Agreement shall be consummated
subject to reduction of the Purchase Price to reflect the cost of repair or
replacement of the damaged asset. The Purchaser and the General Partner (on
behalf of the Sellers) shall negotiate in good faith to arrive at a mutually
acceptable adjustment to the Purchase Price. If Purchaser and the General
Partner are unable to agree upon the amount of such adjustment, the matter shall
be referred to arbitration pursuant to Section 14.02 of this Agreement.
11.05 SPECIFIC PERFORMANCE. The General Partner, Partnership and
the Sellers hereby acknowledge that the Station, FCC licenses and Station Assets
are unique assets not readily available on the open market and that money
damages would be incalculable and inadequate to compensate Purchaser for any
material breach by any of them of their obligations hereunder. Therefore, if the
parties hereto fail to consummate this
41
Agreement due to any material breach by the General Partner, the Partnership, or
Sellers of any representation, warranty, covenant, condition, or obligation
hereunder, and the Purchaser has not materially breached any representation,
warranty, covenant, condition, or obligation hereunder, Purchaser shall be
entitled to specific performance of the terms of this Agreement and of Sellers'
obligation to consummate the transaction contemplated hereby, in which event the
General Partner, Partnership and Sellers waive any defense that Purchaser has an
adequate remedy at law.
11.06 ASSUMPTION OF PURCHASER'S LEASES IN CERTAIN EVENTS. The
parties acknowledge that, in anticipation of the Closing, Purchaser may enter
into certain leases for real or personal property in connection with the
operation of the Station after the Closing. If the parties fail to consummate
this Agreement due to any material breach by the General Partner, the
Partnership or Sellers of any representation, warranty, covenant, condition or
obligation hereunder, and Purchaser has not materially breached any
representation, warranty, covenant, condition or obligation hereunder, the
Partnership shall assume Purchaser's obligations under all of such leases that
are reasonably related to the operation of the Station.
ARTICLE XII
INDEMNIFICATION
12.01 SELLERS' AGREEMENT TO INDEMNIFY. Subject to the terms and
conditions of this Article XII, each Seller severally
42
(and not jointly) agrees to indemnify, defend and hold Purchaser harmless, but
only in proportion to his, her or its pro rata share of Partnership Interests as
set forth in Schedule 3.02, from and against all demands, claims, actions or
causes of action, assessments, losses, damages, liabilities, costs and expenses,
including without limitation, reasonable attorneys' fees and expenses
(collectively "Claim" or "Claims"), asserted against, imposed upon or incurred
by Purchaser by reason of or resulting from (a) a breach of any representation
or warranty of Sellers or the Partnership contained in or made pursuant to this
Agreement, or (b) a breach of any covenant or agreement of Sellers or the
Partnership contained in or made pursuant to this Agreement, or (c) any
Undisclosed Liability, or (d) any FCC imposed forfeitures relating to actions or
inactions by the Partnership or the General Partner prior to the Closing;
provided, however, Sellers shall not be required to indemnify Purchaser with
respect to any Claim based upon the breach of any warranty, representation,
covenant or agreement contained in or made pursuant to this Agreement unless the
amount of such Claim, when aggregated with all other such Claims, shall exceed
$50,000, but then such indemnification shall be to the full extent of the Claim.
12.02 PURCHASER'S AGREEMENT TO INDEMNIFY. Subject to the terms
and conditions of this Article XII, Purchaser agrees to indemnify, defend and
hold each Seller harmless from and against all Claims asserted against, imposed
upon or incurred by such
43
Seller by reason of or resulting from (a) a breach of any representation or
warranty of Purchaser contained in or made pursuant to this Agreement, or (b) a
breach of any covenant or agreement of Purchaser contained in or made pursuant
to this Agreement, or (c) any Claim arising out of the operation of the Station
after the Closing.
12.03 CONDITIONS OF THIRD PARTY INDEMNIFICATION. The obligations
and liabilities of any party hereunder with respect to Claims resulting from the
assertion of liability by third parties shall be subject to the following terms
and conditions:
(a) The party seeking indemnification (the "Indemnified Party")
shall give the party from whom it asserts indemnification (the "Indemnifying
Party") timely notice of any such Claim after the Indemnified Party receives
notice thereof (and in no event less than thirty (30) days after the Indemnified
Party receives such notice), and the Indemnifying Party will undertake the
defense thereof by representatives of its, his or her own choosing. All costs
and expense of such defense (including fees of counsel), and any settlement
resulting from the defense of any Claim by the Indemnifying Party, shall be paid
for by the Indemnifying Party; provided, that in no event may the Indemnifying
Party settle any such Claim without the Indemnified Party's consent if the
settlement fails to include a full release of the Indemnified Party from any and
all liability and a payment of any and all loss incurred by the Indemnified
Party under the Claim.
44
(b) In the event that the Indemnifying Party, within a reasonable
time after receipt of notice of any such Claim, but in no event more than thirty
(30) days after receipt of such notice, fails to defend, the Indemnified Party
will have the right to undertake the defense, compromise or settlement of such
Claim on behalf of and for the account and risk of the Indemnifying Party,
subject to the right of the Indemnifying Party to assume the defense of such
Claim at any time prior to settlement, compromise or final determination
thereof.
(c) In the event so requested by the Indemnifying Party, the
Indemnified Party shall use its best efforts to make available all information
and assistance reasonably required in the defense by the Indemnifying Party of a
Claim.
12.04 TAX BENEFITS. In the event a Claim hereunder results in a
tax benefit to the Indemnified Party, the Indemnifying Party shall be entitled
to a credit against any liability thereunder in the amount by which federal and
state income taxes of the Indemnified Party shall be reduced by reason of any
deduction allowed the Indemnified Party for any payment, settlement or
satisfaction of such Claim.
12.05 LIMITATIONS ON SURVIVAL. An Indemnifying Party's obligation
to indemnify an Indemnified Party as provided in this Article XII is subject to
the condition that the Indemnifying Party shall have received written notice of
the Claim for which indemnity is sought within two (2) years after the Closing
Date.
45
12.06 BROKERS' AND FINDERS' FEES. Each Seller, the Partnership
and the Purchaser severally agree that each of them is solely responsible for
the payment of brokers' or finders' fees payable to any person retained by any
Seller, the Partnership or Purchaser, respectively, in connection with the
transactions contemplated by this Agreement, and each will indemnify the others
with respect thereto.
12.07 LIMITATION OF SELLERS' LIABILITY. Notwithstanding anything
to the contrary herein contained, except for Claims resulting from fraud by a
Seller or the Partnership and except for Claims resulting from a breach of
Sections 5.04, 5.17 and 5.26, and of this Agreement, (a) the liability of
Sellers to Purchaser under Article 12.01 hereof shall not exceed the
Post-Closing Escrow Deposit (as defined in Section 3.05), and (b) the sole
source of indemnification from Sellers to Purchaser under this Article XII shall
be the Post-Closing Escrow Deposit. The liability of any Seller to Purchaser for
Claims resulting from fraud by a Seller or the Partnership and for Claims
resulting from a breach of Sections 5.04, 5.17 and 5.26 shall not exceed such
Seller's pro rata share of the Purchase Price.
12.08 REMEDIES EXCLUSIVE. The remedies provided in this Article
XII constitute the sole and exclusive remedies for recoveries by one party
against another party with respect to any breach of the representations,
warranties, covenants and agreements set forth in this Agreement; provided,
however, that
46
the foregoing shall not limit the right of Purchaser to specifically enforce
Sellers' performance under this Agreement.
ARTICLE XIII
ADDITIONAL COVENANTS
13.01 LOANS TO PARTNERSHIP BY PURCHASER AND ESCROW AGENT. (a) To assist
the Partnership with the construction of the Tower Project, the Escrow Agent
shall loan the Escrow Deposit to the Partnership and Purchaser shall loan to the
Partnership such additional funds as are reasonably needed to complete the Tower
Project (collectively the "Tower Project Loans") from the date hereof and the
Closing Date. Except as otherwise agreed by the General Partner, acting on
behalf of the Sellers, and Purchaser, the funds to be loaned by Purchaser shall
not exceed an amount equal to (i) the budget for the Tower Project set forth in
Schedule 3.01, less (ii) the Escrow Deposit plus $500,000. As an illustration,
if the budget for the Tower Project is $2,800,000, Purchaser need not loan the
Partnership more than $1,640,000 ($2,800,000 less $660,000 less $500,000).
Notwithstanding anything to the contrary in this Section 13.01, neither the
Escrow Agent nor Purchaser shall make any Tower Project Loans in excess of
amounts obligated in executed contracts set forth in Schedule 3.01 unless (i)
the loan amount is properly supported by an invoice and (ii) the invoice
receives the prior written approval of the Purchaser Representative appointed
pursuant to Section 13.02 of this Agreement. Each Tower Project Loan shall be
evidenced by a promissory note to the Escrow Agent in the form
47
attached hereto as Exhibit D (the "Escrow Agent Note") and a promissory note to
Purchaser in the form attached hereto as Exhibit E (the "Purchaser Note"). The
Escrow Agent Note and the Purchaser Note (collectively the "Tower Project
Notes") shall be secured by a lien on the Tower Project, the Real Estate Leases,
the Partnership Interests and the Station Assets, subject only to the
Partnership pledge described in Schedule 4.01, the lien of Premier Bank,
Tallahassee, Florida, and any lien imposed by a contractor or vendor of the
Tower Project. The Tower Project Notes shall bear interest at the rate of eight
and one-quarter percent (8.25%) per annum. The Tower Project Notes shall be due
and payable upon the earlier of (a) the Closing, or (b) the termination of this
Agreement pursuant to Article XI; provided that, upon the assignment of the
Partnership Interests to Purchaser at the Closing, the Tower Project Notes
(including principal and accrued interest) shall be cancelled and marked
satisfied and the principal and accrued interest shall be considered part of the
costs of the Tower Project assumed by Purchaser.
(b) To assist the Partnership's construction of the Station, Purchaser
may, with the prior written approval of the Partnership, enter into leases and
other arrangements for the construction of the Station; provided, that if this
Agreement is not consummated for any reason other than a material default by
Purchaser, the Partnership shall accept an assignment of and
48
assume responsibility for any such lease or other arrangement that was
previously approved in writing by the Partnership.
13.02 PURCHASER REPRESENTATIVE. The Purchaser shall appoint an
individual (the "Purchaser Representative") to consult with and advise the
Partnership on behalf of the Purchaser with respect to the Tower Project. The
Partnership shall furnish the Purchaser Representative with copies of plans,
proposals and invoices related to the Tower Project and shall permit the
Purchaser Representative to inspect the construction of the Tower Project and
participate in discussions with contractors, subcontractors and vendors.
Notwithstanding the foregoing provisions of this Section 13.02, the Partnership
shall have the final decision with respect to the construction of the Tower
Project. In no event shall Purchaser or the Purchaser's Representative be
entitled to make decisions for the Partnership with respect to the Tower Project
or to otherwise exercise any control over Station finances, personnel, and
programming.
ARTICLE XIV
MISCELLANEOUS
14.01 SURVIVAL OF REPRESENTATIONS. All statements contained in
any Schedule, document, certificate or other instrument delivered by or on
behalf of Purchaser, the Partnership or Sellers pursuant hereto, or in
connection with the transactions contemplated hereby, shall be deemed
representations and warranties hereunder by Purchaser, the Partnership or
Sellers, as the case may be. The representations, warranties and
49
agreements made by Purchaser, the Partnership and Sellers herein shall survive
consummation of the transactions contemplated hereby, subject to the conditions
and limitations of Article XII.
14.02 ARBITRATION. Any controversy or claim arising out of or
relating to this Agreement, or the breach thereof, shall be settled by
arbitration in Knoxville, Tennessee in accordance with the Rules of Commercial
Arbitration of the American Arbitration Association, and any decision or award
rendered by the arbitrators may be entered in any court having jurisdiction
thereof. The arbitration tribunal shall consist of three arbitrators, of whom
one shall be nominated by Purchaser, one shall be nominated by the Sellers
(acting unanimously), and the third, who shall serve as Chairman, shall be
chosen by the two party-nominated arbitrators, or, in the event the
party-nominated arbitrators are unable to designate the third arbitrator, by the
American Arbitration Association. Any party to this Agreement is authorized to
initiate arbitration by providing written notice of arbitration to the
Administrator of the American Arbitration Association and to the party or
parties against whom a claim is being made. Arbitrators shall be selected by the
parties within ten (10) days after such notice. The award of the arbitrators
shall be final and binding. The parties waive any right to appeal the award, to
the extent a right to appeal may be lawfully waived. Each party retains the
right to seek judicial assistance: (a) to compel arbitration;
50
(b) to obtain interim measure of protection pending arbitration; and (c) to
enforce any decision of the arbitrators, including the final award. If any
arbitration or other formal legal proceeding is instituted by any party to
enforce rights under this Agreement (including a lawsuit to compel arbitration),
the prevailing party shall be reimbursed by the other party or parties for all
reasonable expenses incurred thereby, including reasonable attorneys' fees.
14.03 ASSIGNMENT. This Agreement shall not be assignable by any
of the parties hereto without the written consent of the other.
14.04 CONSTRUCTION. This Agreement shall be construed and
enforced in accordance with the laws of the State of Florida.
14.05 AMENDMENT. This Agreement may not be amended, supplemented
or interpreted except by a written instrument executed by all parties hereto.
14.06 EXPENSES. Except as otherwise provided herein, each party
hereto shall pay its, his or her own expenses incident to this Agreement and the
transactions contemplated hereby, including all fees and expenses of their
counsel, whether or not such transactions shall be consummated.
14.07 NOTICES. All notices, requests, demands and other
communications hereunder shall be in writing and shall be deemed to have duly
been given if hand-delivered, if sent by facsimile (with written confirmation of
receipt), if mailed, by United States certified or registered mail, postage
prepaid, or
51
if sent by overnight courier, charges prepaid, to the parties or their assignees
at the following addresses, (or at such other addresses as shall be given in
writing by the parties to one another):
Purchaser: Xxxxxxx Xxxxx, Managing Member
Acme Television Licenses of Tennessee, LLC
0000 Xxxxxxxxxxx Xx.
Xxxxxxxx, XX 00000
With copy to: Xxxxx X. Paper
Dickstein, Shapiro, Xxxxx & Xxxxxxxx, LLP
0000 X Xxxxxx, X.X.
Xxxxxxxxxx, XX 00000
Partnership: c/o C.W. TV, Inc.
0000 Xxxxxxx Xxxxxx, X.X.
Xxxxxxxxxxx, XX 00000
Sellers: To the addresses set forth
on the signature pages hereof
With copy to: Alexander & Xxxx, LLP
P. O. Xxx 0000
Xxxxxxxxxxx, XX 00000
Attn: Xxxxx X. Xxxxxx
14.08 COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
14.09 ENTIRE AGREEMENT. This Agreement, the Exhibits hereto and
the certificates, Schedules and other documents delivered pursuant hereto or
incorporated by reference herein, contain the entire agreement between the
parties hereto concerning the transaction contemplated herein and supersede all
prior and contemporaneous agreements or understandings between
52
the parties hereto relating to the subject matter hereof. No oral
representation, agreement or understanding made by any party hereto shall be
valid or binding upon such party or any other party hereto.
14.10 ADDITIONAL DOCUMENTS. The Parties hereto will at any time
after the date hereof sign, execute, and deliver, or cause others so to do, all
such powers of attorney, deeds, assignments, documents and instruments and do or
cause to be done all such other acts and things as may be reasonably necessary
or proper to carry out the transactions contemplated by this Agreement.
14.11 PRONOUNS. All pronouns used herein shall be deemed to refer
to the masculine, feminine or neuter gender as the context requires.
14.12 CAPTIONS AND SECTION HEADINGS. Captions and section
headings used herein are for convenience only and are not a part of this
Agreement and shall not be used in construing it.
14.13 KNOWLEDGE OF PARTNERSHIP. For purposes of this Agreement,
"knowledge" or "awareness" of the Partnership means those facts known to the
General Partner, or to Xxxxxx X. Xxxxx.
14.14 DISCLOSURE. Disclosure by the Partnership or a Seller in
one Schedule to this Agreement shall be deemed disclosed for purposes of any
other Schedule.
14.15 PRESS RELEASE. Purchaser and the Sellers (acting
unanimously) shall jointly prepare and determine the timing of any press release
or other announcements to the public
53
or the news media relating to the execution of this Agreement. No party hereto
shall issue any press release or make any other public announcement relating to
the transactions contemplated by this Agreement without the prior consent of
both Purchaser and the Partnership, except that any party may make any
disclosure required to be made by it under applicable law (including applicable
FCC regulations, federal or state securities laws and the regulations of
securities markets) if such party determines in good faith that it is
appropriate to do so, gives prior notice thereof to the other parties hereto and
consults with the other parties hereto regarding the contents of such
disclosure.
14.16 PURCHASER. For purposes of this Agreement, (a) Sellers and
the Partnership may rely upon any notice or direction given by either ATLT or
ATT as if such notice or direction were given by Purchaser, and (b) any notice
given by the Partnership or Sellers or any delivery made by the Partnership or
Sellers to either ATLT or ATT shall be deemed given or made to Purchaser.
14.17 ENVIRONMENTAL AUDIT. Purchaser may obtain, at its expense,
a Phase 1 environmental audit of the Station Assets within twenty (20) days
after the execution of this Agreement. The Partnership shall be responsible for
curing or remediating any noncompliance with any Environmental Laws disclosed by
such audit prior to the Closing; provided, that (a) the Partnership may refuse
to expend any amount in excess of $50,000 for any such cure or remediation, and
(b) in the event
54
the Partnership refuses to expend any amount in excess of $50,000, Purchaser
may, at its option and within five (5) days after notice of such refusal,
terminate this Agreement by giving notice to the Partnership and Sellers without
further liability to any party. Purchaser shall provide the Partnership and
Sellers with a copy of any environmental audit conducted pursuant to this
section within five (5) business days after receipt of such report, and the
Partership and Sellers shall have ten (10) business days after receipt of the
report to advise Purchaser whether any cure or remediation recommended by the
report would exceed $50,000 and, if so, whether the Partnership and/or Sellers
are prepared to pay any amount in excess of $50,000.
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the day and year first above written.
PURCHASER:
ACME TELEVISION LICENSES OF
TENNESSEE, LLC, a Tennessee limited
liability company
By:/s/Xxxxxxx X. Xxxxx
--------------------------------
Xxxxxxx X. Xxxxx
Managing Member
ACME TELEVISION OF
TENNESSEE, LLC, a Tennessee
limited liability company
By:/s/Xxxxxxx X. Xxxxx
--------------------------------
Xxxxxxx X. Xxxxx
Managing Member
{SIGNATURES CONTINUED}
55
SELLERS:
C.W. TV, Inc.,
a Florida corporation
By:/s/Xxxxxxx X. Xxxxxx
--------------------------------
Xxxxxxx X. Xxxxxx, President
/s/Xxxxx X. Xxxxxx
--------------------------------
Xxxxx X. Xxxxxx
Address: 0000 Xxxxxxx Xxxxxx, X.X.
Xxxxxxxxxxx, XX 00000
/s/Xxxxx X. Xxxxxx
--------------------------------
Xxxxx X. Xxxxxx
Address: 0000 Xxxxxxx Xxxxxx, X.X.
Xxxxxxxxxxx, XX 00000
/s/Xxxxxxxx X. Xxxxxxxx
--------------------------------
Xxxxxxxx X. Xxxxxxxx
Address: 0000 Xxxxxxx Xxxxxx, X.X.
Xxxxxxxxxxx, XX 00000
/s/Xxxx X. Xxxxxxxxxx
--------------------------------
Xxxx X. Xxxxxxxxxx
Address: 0000 Xxxxxxx Xxxxxx, X.X.
Xxxxxxxxxxx, XX 00000
56
/s/Gavin X. X. Xxxxxx
--------------------------------
Gavin X. X. Xxxxxx
Address: 0000 Xxxxxxx Xxxxxx, X.X.
Xxxxxxxxxxx, XX 00000
/s/Xxxxx X. Xxxxxx
--------------------------------
Xxxxx X. Xxxxxx, Custodian
for Xxxxxx X. Xxxxxx, a minor
Address: 0000 Xxxxxxx Xxxxxx, X.X.
Xxxxxxxxxxx, XX 00000
{SIGNATURES CONTINUED}
57
/s/Xxx X. Xxxxxx
--------------------------------
Xxx X. Xxxxxx
Address: 0000 Xxxxxxx Xxxxxx, X.X.
Xxxxxxxxxxx, Xx 00000
THE XXXXX TRUST U/A DATED 10/18/95
By:/s/Xxxxxxx X. Xxxx
--------------------------------
Xxxxxxx X. Xxxx, Trustee
Address: Suite 1000
000 X. Xxx Xx.
Xxxxxxxxx, XX 00000
THE XXXXXX TRUST U/A DATED 10/18/95
By:/s/Xxxxxxx X. Xxxx
--------------------------------
Xxxxxxx X. Xxxx, Trustee
Address: Suite 1000
000 X. Xxx Xx.
Xxxxxxxxx, XX 00000
XXXX XXXXXX XXXXX IRREVOCABLE
TRUST U/A DATED JANUARY 18, 1996
By:/s/Xxxxxx X. Xxxxx
--------------------------------
Xxxxxx X. Xxxxx, Trustee
Address: 0000 Xxxxxxxx Xxxxx
Xxxxxxxxxxx, XX 00000
XXXXXXXXX XXX XXXXX IRREVOCABLE
TRUST U/A DATED JANUARY 18, 1996
By:/s/Xxxxxx X. Xxxxx
Xxxxxx X. Xxxxx, Trustee
Address: 0000 Xxxxxxxx Xxxxx
Xxxxxxxxxxx, XX 00000
58
{SIGNATURES CONTINUED}
XXXXXXX X. XXXX IRREVOCABLE
TRUST U/A DATED JANUARY 18, 1996
By:/s/X. X. Xxxx
--------------------------------
X. X. Xxxx, Trustee
Address: 0000 Xxxxxxxx Xx.
Xxxxxxxxxxx, XX 00000
XXXXXXX X. XXXX IRREVOCABLE
TRUST U/A DATED JANUARY 18, 1996
By:/s/X. X. Xxxx
--------------------------------
X. X. Xxxx, Trustee
Address: 0000 Xxxxxxxx Xx.
Xxxxxxxxxxx, XX 00000
PARTNERSHIP:
CROSSVILLE TV LIMITED PARTNERSHIP
By: C.W. TV, INC., General Partner
By:/s/Xxxxxxx X. Xxxxxx
--------------------------------
Xxxxxxx X. Xxxxxx, President
59
The following pages contain a list of Exhibits and Schedules which have
been intentionally omitted by the Registrants.
A copy of any omitted Exhibit or Schedule will be provided to the
Securities and Exchange Commission upon request.
LIST OF EXHIBITS AND SCHEDULES
Page 1 of 2
Exhibit A - ESCROW AGREEMENT
Exhibit B - SELLER'S COUNSEL OPINION
Exhibit C - PURCHASER'S COUNSEL OPINION
Exhibit D - ESCROW AGENT NOTE
Exhibit E - PURCHASER NOTE
Schedule 3.01 - TOWER PROJECT
Schedule 3.02 - LIST OF SELLERS AND PARTNERSHIP
INTERESTS
Schedule 4.01 - LIENS ON PARTNERSHIP INTERESTS
Schedule 5.01 - PARTNERSHIP AGREEMENT
Schedule 5.03 - FINANCIAL STATEMENTS
Schedule 5.05(a) - PERSONAL PROPERTY
Schedule 5.05(b) - OPERATING LEASES
Schedule 5.06(b) - REAL ESTATE LEASES
Schedule 5.07 - PATENTS
Schedule 5.08 - INSURANCE
Schedule 5.10 - LITIGATION
Schedule 5.11 - COMPLIANCE WITH LAWS
Schedule 5.13 - CONTRACTS
Schedule 5.14 - DESIGNATION OF PARTNERSHIP ADMINISTRATOR
Schedule 5.16 - BANK ACCOUNTS
Schedule 5.17 - GOVERNMENTAL AUTHORIZATIONS
(INCLUDING FCC LICENSES)
LIST OF EXHIBITS AND SCHEDULES
Page 2 of 2
Schedule 5.18 - ENVIRONMENTAL
Schedule 5.22 - CABLE CARRIAGE
Schedule 5.23 - TRADE, BARTER AND SALES AGREEMENTS
Schedule 5.24 - CERTAIN INTERESTS AND RELATED PARTIES
Schedule 5.25 - PARTNERSHIP BOOKS AND RECORDS
Schedule 5.27 - PROGRAMMING AGREEMENTS
Schedule 5.28 - STATION ASSETS
