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EXHIBIT 10.1
EXECUTION COPY
ASSET PURCHASE AGREEMENT
DATED AS OF FEBRUARY 19, 0000
XXXXXXX
XXXX XXXXXXXXXX XX XXX XXXXXX, LLC
ACME TELEVISION LICENSES OF NEW MEXICO, LLC
AND
RAMAR COMMUNICATIONS II, LTD.
WITH RESPECT TO TELEVISION STATION
KWBQ-TV, SANTA FE, NEW MEXICO
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EXECUTION COPY
ASSET PURCHASE AGREEMENT
This Asset Purchase Agreement is entered into as of February 19, 1999,
by and among Ramar Communications II, Ltd., a Texas limited partnership
("Buyer"), ACME Television of New Mexico, LLC, a Delaware limited liability
company ("ATNM"), and ACME Television Licenses of New Mexico, LLC, a Delaware
limited liability company ("ATLNM") (ATNM and ATLNM shall be collectively
referred to herein as "Seller").
R E C I T A L S
ATLNM is the permittee of Television Station KWBQ-TV, Santa Fe, New
Mexico, (the "Station"), pursuant to a construction permit issued by the Federal
Communications Commission (the "FCC"), and ATNM is the owner of other assets
used or useful in connection with the business or operation of the Station.
Seller desires to sell and assign, and Buyer desires to purchase and
acquire, certain assets owned or held by Seller and used or useful in the
conduct of the business or operations of the Station, on the terms and
conditions hereinafter set forth.
A G R E M E N T S
ARTICLE 1
ASSETS TO BE CONVEYED
1.1. CLOSING. Subject to Section 17.1 hereof and except as otherwise
mutually agreed upon by Seller and Buyer, the closing of this transaction (the
"Closing") shall take place on a date designated by Buyer no later than ten (10)
days after the last of the conditions specified in Articles 11 and 12 hereof has
been fulfilled (or waived by the party entitled to waive such condition). The
Closing shall be held at 10:00 a.m. in the offices of 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.
1.2. STATION ASSETS. At the Closing, Seller shall sell, assign, transfer
and convey to Buyer, and Buyer shall purchase from Seller, certain of the
assets, real, personal and mixed, tangible and intangible, owned or held by
Seller and used or useful in the conduct of the business and operation of the
Station (but excluding the assets specified in Section 1.3), including, but not
limited to, the following:
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(a) all of Seller's rights in and to (i) the Station Licenses
(as defined in Article 22 hereof), (ii) all licenses, permits and other
authorizations issued to Seller by the Federal Aviation Administration
("FAA") or any governmental authority and used or useful in the
operation of the Station (with all of the foregoing, including the
Station Licenses, collectively referred to hereinafter as the
"Government Authorizations"), copies of which are listed in Schedule
1.2(a), together with any additions thereto (including modifications of
such licenses, permits and authorizations and applications therefor)
between the date hereof and the Closing Date;
(b) the Tower Lease Agreement dated December 30, 1998 by and
between Xxxxxxx Broadcasting Company of New Mexico, LLC and ATNM, a true
and correct copy of which has been provided to Buyer (the "Tower
Lease");
(c) all of Seller's rights in and to the trademarks, trade
names, service marks, patents, franchises, copyrights, including
registrations and applications for registration of any of them, jingles,
logos, slogans, licenses, permits and privileges, trade secrets, and
other similar intangible property rights and interests owned by or
licensed to Seller and used or useful exclusively in the operation of
the Station except the call sign KWBQ and the name "ACME Television" and
any variant thereof;
(d) all files, records, studies, data, lists, filings, general
accounting records, books of account, computer programs, software and
logs relating exclusively to the operation of the Station; and
(e) all of Seller's good will in and going concern value of the
Station.
The assets to be assigned and transferred to Buyer hereunder are
hereinafter collectively referred to as the "Station Assets." The Station Assets
shall be assigned and transferred to Buyer free and clear of all security
interests, financing agreements, liens, claims, and encumbrances of any and
every kind (except Permitted Encumbrances).
1.3. EXCLUDED ASSETS. The Station Assets shall not include the following
(the "Excluded Assets"):
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(a) other than the assets encompassed by the Tower Lease and the
Equipment Lease, all broadcast and other equipment, office furniture and
fixtures, office materials and supplies, inventory, spare parts, and
other tangible personal property of every kind and description, owned,
leased or held by Seller and used or useful in the operation of the
Station, together with any replacements thereof and additions thereto,
made between the date hereof and the Closing Date;
(b) other than the Tower Lease and the Equipment Lease, all of
Seller's rights under and interest in the Contracts, together with all
of Seller's rights under and interest in all Contracts entered into or
acquired by Seller between the date hereof and the Closing Date;
(c) Seller's studio property located at 0000 Xxxxxxxxxx, XX,
Xxxxxxxxxxx, XX;
(d) Seller's books and records as pertain to the organization,
existence or capitalization of Seller, and duplicate copies of such
records as are necessary to enable Seller to file tax returns and
reports;
(e) all cash, cash equivalents or similar type investments of
Seller, such as certificates of deposit, Treasury bills, and other
marketable securities on hand and/or in banks;
(f) all accounts receivable arising out of the operation of the
Station for services performed or provided prior to the Effective Time
(the "Accounts Receivable");
(g) all contracts of insurance, insurance proceeds, and
insurance claims made by Seller relating to Station Assets repaired,
replaced, or restored by Seller prior to Closing, except for any rights
that may be assigned pursuant to Article 20 hereof;
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(h) all pension, profit sharing or cash or deferred (Section
401(k)) plans and trusts and the assets thereof and any other employee
benefit plan or arrangement and the assets thereof, if any;
(i) all claims, rights and interest in and to any refunds of
federal, state or local franchise, income or other taxes or fees of any
nature whatsoever for any period prior to Closing;
(j) the right to the call sign KWBQ-TV; and
(k) the name "ACME Television" and any variant thereof or logo
used in connection therewith.
ARTICLE 2
PURCHASE PRICE
2.1. PURCHASE PRICE. The total consideration to be paid by Buyer for the
Station Assets (the "Purchase Price") shall be One Hundred Thousand Dollars
($100,000), or such lesser amount as may be approved by the FCC.
2.2. PAYMENT OF PURCHASE PRICE. On the Closing Date, Buyer shall pay the
amount of One Hundred Thousand Dollars ($100,000), or such lesser amount as may
be approved by the FCC, by wire transfer of immediately available federal funds
to a bank or other financial institution designated by Seller at least two (2)
days prior to the Closing Date. Buyer may, at its option, pay the Purchase Price
by reducing the amount payable to Buyer under the KASY-TV Agreement by the
amount of the Purchase Price payable hereunder.
2.3. ALLOCATION OF PURCHASE PRICE. Buyer shall prepare an initial draft
of IRS Form 8594 prior to or within one hundred eighty (180) days after the
Closing. Buyer shall forward such form to Seller for its approval, which shall
not be unreasonably withheld or delayed; provided, however, that if Seller does
not approve the draft of IRS Form 8594, it shall bear all expenses of revising
such form, including the costs of any appraisals, and Buyer and Seller shall
each file the IRS Form 8594 finally agreed upon by the parties with their
respective federal income tax return for the tax year in which the Closing
occurs. In no event shall Seller or Buyer take any position in any filing or
other representation with or to the IRS or any governmental authority which is
inconsistent with the allocation agreed to by the parties pursuant to this
Section.
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ARTICLE 3
ASSUMPTION OF OBLIGATIONS
3.1. ASSUMPTION OF OBLIGATIONS. Subject to the provisions of this
Agreement, Buyer shall assume and undertake to pay, satisfy or discharge the
liabilities, obligations and commitments of Seller arising and accruing after
the Closing Date under the Tower Lease.
3.2. LIMITATION. Except as set forth in Section 3.1 hereof, Buyer
expressly does not, and shall not, assume or be deemed to assume, under this
Agreement or otherwise by reason of the transactions contemplated hereby, any
liabilities, obligations or commitments of Seller of any nature whatsoever.
Without limiting the generality of the foregoing, Buyer shall not assume or be
liable for any liability or obligation of Seller (a) arising out of any
litigation, proceeding or claim by any person or entity relating to the business
or operation of the Station prior to the Closing Date, whether or not such
litigation, proceeding or claim is pending, threatened or asserted before, on or
after the Closing Date, (b) under any employment contract, collective bargaining
agreement, insurance, pension, retirement, deferred compensation, incentive
bonus or profit sharing or employee benefit plan or trust, or (c) relating to
any accounts payable.
ARTICLE 4
REQUIRED CONSENTS
4.1. FCC APPLICATION. The assignment of the Station Licenses as
contemplated by this Agreement is subject to the prior consent of the FCC. Upon
Seller's three (3) business days' prior written notice to Buyer, but in any
event, no later than thirty (30) days after the date of this Agreement whether
or not such notice is given, Buyer and Seller shall file the FCC Application.
Seller and Buyer shall thereafter prosecute the FCC Application with all
reasonable diligence and otherwise use their commercially reasonable efforts to
obtain the grant of the FCC Application as expeditiously as practicable;
provided, however, that neither Seller nor Buyer shall have any obligation to
satisfy any third party (including but not limited to a petitioner or
complainant) or the FCC by taking any steps which would have a material adverse
effect upon Seller or Buyer or upon any affiliated entity, but neither the
expense nor inconvenience to a party of defending against a petition to deny or
other third party complaint or an inquiry by the FCC shall be considered a
material adverse effect on such
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party. Each party will promptly provide the other party with a copy of any
pleading, order, or other document sent or received by it relating to the FCC
Application. Each party shall make whatever amendments or submissions are
required or requested by the FCC or otherwise necessary to secure FCC Consent;
provided however, that such amendment or response does not have a material
adverse effect on such party or any affiliated entity. If the FCC Consent
imposes any condition on any party hereto, such party shall use commercially
reasonable efforts to comply with such condition; provided, however, that no
party shall be required to comply with any condition that would have a material
adverse effect upon it or any affiliated entity. If reconsideration or judicial
review is sought with respect to the FCC Consent, the party affected shall
vigorously oppose such reconsideration or judicial review; provided, however,
that nothing herein shall be construed to limit either party's right to
terminate this Agreement pursuant to Article 17 hereof.
4.2. OTHER GOVERNMENTAL CONSENTS. Promptly following the execution of
this Agreement, the parties shall prepare and file with any other appropriate
governmental authorities any other requests for approval or waiver that are
required from such governmental authorities in connection with the transactions
contemplated hereby and shall diligently and expeditiously prosecute, and shall
cooperate fully with each other in the prosecution of, such requests for
approval or waiver and all proceedings necessary to secure such approvals and
waivers.
ARTICLE 5
PRORATIONS
5.1. PRORATION OF INCOME AND EXPENSES. All income and expenses arising
from the conduct of the business and operation of the Station shall be prorated
between Buyer and Seller as of the Effective Time in accordance with GAAP. Such
prorations shall be based upon the principle that Seller shall be entitled to
all income earned and shall be responsible for all liabilities and obligations
incurred or accruing in connection with the operation of the Station until the
Effective Time, and, subject to the LMA, Buyer shall be entitled to all income
earned and be responsible for such liabilities and obligations incurred by Buyer
thereafter. Such prorations shall include, without limitation, all ad valorem,
real estate and other property taxes (but excluding taxes arising by reason of
the transfer of the Station Assets as contemplated hereby, which shall be paid
as set forth in Article 14 of this Agreement), business and license fees, music
and other license fees (including any retroactive adjustments thereof), utility
expenses,
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liabilities and obligations under all Contracts to be assumed by Buyer, rents
and similar prepaid and deferred items and all other expenses attributable to
the ownership and operation of the Station. To the extent not known, real estate
taxes shall be apportioned on the basis of taxes assessed for the preceding
year, with a reapportionment as soon as the new tax rate and valuation can be
ascertained.
5.2. PAYMENT OF PRORATION ITEMS. Within sixty (60) days following the
Closing Date, Buyer shall deliver to Seller a schedule of its proposed
prorations (which shall set forth in reasonable detail the basis for those
determinations) (the "Proration Schedule"). The Proration Schedule shall be
conclusive and binding upon Seller unless Seller provides Buyer with written
notice of objection (the "Notice of Disagreement") within thirty (30) days after
Seller's receipt of the Proration Schedule, which notice shall state the
prorations of expenses proposed by Seller (the "Seller's Proration Amount").
Those items which are not in dispute shall be paid by Seller or Buyer, as the
case may be, within forty-five (45) days after Seller's receipt of the Proration
Schedule. Buyer shall have fifteen (15) days from receipt of a Notice of
Disagreement to accept or reject Seller's Proration Amount. If Buyer rejects
Seller's Proration Amount, the items in dispute shall be submitted within ten
(10) days to a mutually acceptable accounting firm that has no relationship with
either Buyer or Seller (the "Referee") for resolution, such resolution to be
made within thirty (30) days after submission to the Referee and to be final,
conclusive and binding on Seller and Buyer. Buyer and Seller agree to share
equally the cost and expenses of the Referee, but each party shall bear its own
legal and other expenses, if any. Payment by Buyer or Seller, as the case may
be, of the proration amounts determined pursuant to this Section 5.2 shall be
due thirty (30) days after the last to occur of (i) Seller's acceptance of the
Proration Schedule or failure to give Buyer a timely Notice of Disagreement;
(ii) Buyer's acceptance of Seller's Proration Amount; and (iii) notice to Seller
and Buyer of the resolution of the disputed amount by the Referee. Any payment
required by Seller to Buyer or by Buyer to Seller, as the case may be, under
this Section 5.2 shall be paid by wire transfer of immediately available federal
funds to the account of the payee with a financial institution in the United
States as designated by Buyer in the Proration Schedule or by Seller in the
Notice of Disagreement (or by separate notice in the event that Seller does not
send a Notice of Disagreement). If either Buyer or Seller fails to pay when due
any amount under this Section 5.2, interest on such amount will accrue from the
date payment was due to the date such payment is made at a per annum rate equal
to the Prime Rate plus three percent (3%), and such interest shall be payable
upon demand.
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ARTICLE 6
REPRESENTATIONS AND WARRANTIES OF BUYER
Buyer represents and warrants to Seller as follows:
6.1. ORGANIZATION AND STANDING. Buyer is a limited partnership
organized, validly existing and in good standing under the laws of the State of
Texas.
6.2. AUTHORIZATION AND BINDING OBLIGATION. Buyer has all necessary power
and authority to enter into and perform under this Agreement and the
transactions contemplated hereby, and Buyer's execution, delivery and
performance of this Agreement has been duly and validly authorized by all
necessary action on its part. This Agreement has been duly executed and
delivered by Buyer and constitutes its valid and binding obligation, enforceable
in accordance with its terms, except as limited by laws affecting creditors'
rights or equitable principles generally.
6.3. FCC QUALIFICATIONS. To Buyer's knowledge, there are no facts which,
under the Communications Act of 1934, as amended, or the published rules and
regulations of the FCC, would disqualify Buyer as assignee of the Station
Licenses.
6.4. ABSENCE OF CONFLICTING AGREEMENTS OR REQUIRED CONSENTS. Except as
set forth in Article 4 with respect to FCC and other governmental consents or as
disclosed on Schedule 6.4, the execution, delivery and performance of this
Agreement and the consummation of the transactions contemplated hereby by Buyer:
(a) do not and will not require the consent of any third party; (b) do not and
will not violate any provisions of Buyer's governing instruments; (c) do not and
will not violate any applicable law, judgment, order, injunction, decree, rule,
regulation or ruling of any governmental authority which exist as of the date of
this Agreement and to which Buyer is subject; and (d) do not and will not,
either alone or with the giving of notice or the passage of time, or both,
conflict with, constitute grounds for termination of or result in a breach of
the terms, conditions or provisions of, or constitute a default under any
agreement, instrument, license or permit to which Buyer is now subject as of the
date of this Agreement.
6.5. ABSENCE OF LITIGATION. Except as set forth on Schedule 6.5, there
is no claim, litigation, proceeding or investigation pending or, to the best of
Buyer's knowledge, threatened against Buyer which seeks to enjoin or prohibit,
or which
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otherwise questions the validity of, any action taken or to be taken in
connection with this Agreement.
ARTICLE 7
REPRESENTATIONS AND WARRANTIES OF SELLER
Seller represents and warrants to Buyer as follows:
7.1. ORGANIZATION AND STANDING. ATNM and ATLNM are limited liability
companies duly formed, validly existing and in good standing under the laws of
the State of Delaware. ATNM and ATLNM each has all necessary power and authority
to own, lease and operate the Station Assets and to carry on the business of the
Station as now being conducted and as proposed to be conducted by ATNM and ATLNM
between the date hereof and the Closing Date.
7.2. AUTHORIZATION AND BINDING OBLIGATION. ATNM and ATLNM each has all
necessary power and authority to enter into and perform this Agreement and the
transactions contemplated hereby, and ATNM's and ATLNM's execution, delivery and
performance of this Agreement has been duly and validly authorized by all
necessary action on its part. This Agreement has been duly executed and
delivered by ATNM and ATLNM and constitutes the valid and binding obligation of
each of them, enforceable in accordance with its terms, except as limited by
laws affecting the enforcement of creditors' rights or equitable principles
generally.
7.3. ABSENCE OF CONFLICTING AGREEMENTS OR REQUIRED CONSENTS. Except as
set forth in Article 4 with respect to FCC and other governmental consents and
except as set forth on Schedule 7.3, the execution, delivery and performance of
this Agreement and the consummation of the transactions contemplated hereby by
Seller (a) do not and will not require the consent of any third party; (b) do
not and will not violate any provisions of ATNM's or ATLNM's governing
instruments; (c) do not and will not violate any applicable law, judgment,
order, injunction, decree, rule, regulation or ruling of any governmental
authority which exists as of the date of this Agreement and by which Seller or
the Station Assets are bound; (d) do not and will not, either alone or with the
giving of notice or the passage of time, or both, conflict with, constitute
grounds for termination of, or result in a breach of the terms, conditions or
provisions of, or constitute a default under, any Real Property Lease or
Contract, agreement, instrument, license or permit to
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which either Seller or the Station Assets are now subject; and (e) do not and
will not result in the creation of any lien, charge or encumbrance on any of the
Station Assets.
7.4. GOVERNMENT AUTHORIZATIONS.
(a) Schedule 1.2(a) lists the Station Licenses and other material
Government Authorizations (including those issued by the FAA), and, except as
set forth on Schedule 1.2(a), and there are no other licenses, permits or other
authorizations from governmental or regulatory authorities required for the
lawful conduct of the business and operation of the Station in the manner and to
the full extent it is now conducted or proposed to be conducted. The Station
Licenses and other licenses, permits and authorizations listed in Schedule
1.2(a) were validly issued and are validly held by Seller, are in full force and
effect, and except as disclosed in Schedule 1.2(a) or on the face of such
Station License, none is subject to any restriction or condition which would
limit in any respect the operation of the Station in accordance with the terms
of such Station Licenses.
(b) Except as disclosed in Schedule 1.2(a), there are no applications,
petitions, complaints, investigations or other proceedings pending or, to the
best of Seller's knowledge, threatened before the FCC relating to the business
or operation of the Station or that may result in the revocation, modification,
non-renewal or suspension of any of the Station Licenses, the denial of any
pending application or the imposition of any fines, forfeitures, or other
administrative actions by the FCC with respect to the Station or its operation
other than proceedings affecting the broadcasting industry generally. Except as
disclosed in Schedule 1.2(a), Seller is not subject to any outstanding judgment
or order of the FCC or any court relating to the Station. The Station is being
constructed and will be operated in accordance with the terms and conditions of
the Station Licenses, the underlying construction permits, the Communications
Act of 1934, as amended, and all rules, regulations and policies of the FCC.
(c) To Seller's knowledge, there are no facts which, under the
Communications Act of 1934, as amended, or the existing rules and regulations of
the FCC, would disqualify it as the assignor of the Station Licenses.
7.5. TITLE TO AND CONDITION OF REAL PROPERTY.
(a) Seller has not assigned title or any other interest (except a
lender's leasehold mortgage, which shall be eliminated no later than the Closing
Date) to the
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Tower Lease or otherwise taken, or failed to take, any action which would
adversely affect Seller's title therein. The Tower Lease constitutes the valid
and binding obligation of the Seller and, to Seller's knowledge, of all other
parties thereto, and is in full force and effect as of the date hereof. Seller
is not in material default under the Tower Lease and to Seller's knowledge, the
other party to the Tower Lease is not in default thereunder. Seller has not
received or given written notice of any default thereunder from or to the other
party thereto. Seller has all requisite power and authority to assign its rights
under the Tower Lease to Buyer in accordance with this Agreement on terms and
conditions no less favorable than those in effect on the date hereof, and such
assignment will not affect the validity, enforceability or continuity of such
Tower Lease.
7.6. INTELLECTUAL PROPERTY. There is no pending or, to the best of
Seller's knowledge, threatened proceeding or litigation affecting or with
respect to the Intellectual Property. Seller has received no notice and has no
knowledge of any infringement or unlawful use of the Intellectual Property.
7.7. LITIGATION. Seller is not subject to any judgment, award, order,
writ, injunction, arbitration decision or decree. Except as disclosed on
Schedule 7.7, there is no claim, litigation, proceeding or investigation pending
or, to the best of Seller's knowledge, threatened against the Seller or relating
to the Station in any federal, state or local court, or before any
administrative agency, arbitrator or other tribunal authorized to resolve
disputes. Except as disclosed on Schedule 7.7, there is no claim, litigation,
proceeding or investigation pending or, to the best of Seller's knowledge,
threatened against Seller or relating to the Station Assets, which might have a
material adverse effect upon the business, assets or condition (financial or
otherwise) of the Station or which seeks to enjoin or prohibit, or otherwise
questions the validity of, any action taken or to be taken in connection with
this Agreement, or which might impede Seller's ability to assign the Station
Assets to Buyer in a timely manner under this Agreement and otherwise in
accordance with the terms and conditions of this Agreement.
7.8. COMPLIANCE WITH LAWS. Seller has operated and is operating in
material compliance with all laws, regulations and governmental orders and
published policies applicable to the conduct of the business and operation of
the Station, and, to Seller's knowledge, its present use of the Station Assets
does not violate any such laws, regulations or orders in any material respect.
Seller has not received any notice asserting any noncompliance with any
applicable statute, rule, published policy or regulation, in connection with the
business or operation of the Station.
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7.9. TAXES. Seller has duly, timely and in the required manner filed all
federal, state, local and foreign income, franchise, sales, use, property,
excise, payroll and other tax returns and forms required to be filed, and has
paid in full or discharged all taxes, assessments, excises, interest, penalties,
deficiencies and losses required to be paid. No event has occurred which could
impose on Buyer any liability for any taxes, penalties or interest due or to
become due from Seller from any taxing authority.
7.10. BANKRUPTCY. No insolvency proceedings of any character, including
without limitation, bankruptcy, receivership, reorganization, composition or
arrangement with creditors, voluntary or involuntary, affecting Seller or any of
the Station Assets, are pending or threatened, and Seller has not made any
assignment for the benefit of creditors or taken any action in contemplation of
or which would constitute the basis for the institution of such insolvency
proceedings.
7.11. ENVIRONMENTAL MATTERS. To Seller's knowledge, no Hazardous
Substance (a) is or has been used, treated, stored, disposed of, released,
spilled, generated, manufactured, transported or otherwise handled at the Tower
Lease site, (b) has been spilled, released or disposed of on property adjacent
to the Tower Lease site, or (c) has otherwise come to be located on or under the
Tower Lease site. To Seller's knowledge, the Tower Lease site and all operations
on the Tower Lease site are in material compliance with all Environmental Laws.
Seller has obtained all environmental, health and safety permits necessary for
the operation of the Station, and all such permits are in full force and effect,
and Seller is in material compliance with the terms and conditions of all such
permits. To Seller's knowledge, no outstanding liens have been placed on the
Tower Lease site under any Environmental Laws. Seller has not received any
notice concerning, and is not aware of, any administrative or judicial
investigations, proceedings or actions with respect to, violations, alleged or
proven, of Environmental Laws by Seller, or otherwise involving the Tower Lease
site or the operations conducted on the Tower Lease site.
7.12. UCC FINANCING STATEMENTS. All of the Station Assets are and have
been located in the State of New Mexico since the Station Assets were acquired
by Seller. Copies of all financing statements filed by any party with respect to
the Station Assets are listed in Schedule 7.12.
7.13. INSURANCE. Schedule 7.14 lists all insurance policies maintained
by Seller. All of such policies are in full force and effect, and Seller is not
in default of any material
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provision thereof. Seller has not received notice from any issuer of any such
policies of its intention to cancel, terminate or refuse to renew any policy
issued by it.
7.14. NO MATERIAL OMISSION. Seller has not failed to disclose any
material fact within its knowledge which would make any statement or
representation in this Agreement inaccurate or misleading.
ARTICLE 8
COVENANTS OF BUYER
8.1. NOTIFICATION. Buyer shall notify Seller of any material litigation,
arbitration or administrative proceeding pending or, to its knowledge,
threatened against Buyer which challenges the transactions contemplated hereby,
including any challenges to the FCC Application, and shall use commercially
reasonable efforts to remove any such impediment to the transactions
contemplated by this Agreement.
8.2. NO INCONSISTENT ACTION. Buyer shall not take any action materially
inconsistent with its obligations under this Agreement or that would hinder or
delay the consummation of the transactions contemplated by this Agreement.
8.3. REVERSAL AGREEMENT. In the event that the Closing occurs prior to
the FCC Consent becoming a Final Order, at the Closing, Buyer shall execute and
deliver the Reversal Agreement.
ARTICLE 9
COVENANTS OF SELLER
9.1. COMMENCEMENT OF PROGRAM TESTS. Seller will take the steps necessary
to commence operations on the Station pursuant to 47 C.F.R. Section 73.1620 at
the earliest possible time;
9.2. INTERIM OPERATION. Between the date of this Agreement and the
Closing Date, except as expressly permitted or required by this Agreement, or
with the prior written consent of Buyer:
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(a) Seller shall conduct the business of the Station solely in
the ordinary and normal course of business consistent with past
practice, with the intent of preserving the assets of the Station;
(b) Seller shall not sell, assign, lease or otherwise transfer
or dispose of any of the Station Assets, except for assets consumed or
disposed of in the ordinary course of business, where no longer used or
useful in the business or operation of the Station, in which event the
same shall be replaced with assets of equal or greater value and
utility, and the Station's inventories of spare parts and expendable
supplies shall be maintained at levels consistent with customary
practices in the broadcast industry;
(c) Seller shall not create, assume or permit to exist any
claim, liability, mortgage, lien, pledge, condition, charge, or
encumbrance of any nature whatsoever upon the Station Assets, except for
those in existence or required by Seller's lender (which shall be
eliminated no later than the Closing Date) on the date of this
Agreement, all of which will be removed on or prior to the Closing Date
unless they are to be assumed by Buyer in accordance with Section 3.1 of
this Agreement;
(d) Seller shall construct and operate the Station in accordance
with the FCC's published rules, policies and regulations, the Station
Licenses, and with all other applicable laws, regulations, rules and
orders, and shall not cause or permit by any act, or failure to act, any
of the Station Licenses to expire, be surrendered, adversely modified,
or otherwise terminated, or fail to prosecute with due diligence any
pending application to the FCC;
(e) Seller shall timely make all payments required to be paid
under the Tower Lease when due and otherwise pay all liabilities and
satisfy all obligations when such liabilities and obligations become
due;
(f) Seller shall maintain insurance on the Station Assets.
9.3. ACCESS TO STATION. Between the date of this Agreement and the
Closing Date, Seller shall give Buyer and Buyer's counsel, accountants,
engineers and other representatives, reasonable access during normal business
hours to all of Seller's properties, records and employees relating to the
Station, and shall furnish Buyer with all
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information related to the Station that Buyer reasonably requests. The rights of
Buyer under this Section 9.3 shall not be exercised in such a manner as to
interfere unreasonably with the business of the Station.
9.4. NO SOLICITATION. Between the date of this Agreement and the
Closing, neither Seller nor any Affiliate of Seller, nor their respective
officers, directors or shareholders shall directly or indirectly (a) solicit,
initiate, entertain or encourage submission of any proposal or offer from any
person relating to any acquisition or purchase of all or any substantial amount
of the Station Assets or Seller, or (b) participate in any discussions or
negotiations regarding, or furnish to any person any information with respect
to, or otherwise cooperate in any way, or assist or participate in, facilitate
or encourage, any effort or attempt by any person to do or seek any of the
foregoing.
9.5. NOTIFICATION. Seller shall notify Buyer of any litigation,
arbitration or administrative proceeding pending or, to its knowledge,
threatened against Seller which challenges the transactions contemplated hereby,
including any challenges to the FCC Application, and shall use commercially
reasonable efforts to take such steps as may be necessary to remove any such
impediment to the transactions contemplated by this Agreement.
9.6. THIRD-PARTY CONSENTS. Seller shall obtain at its own expense the
consent of any third parties, if any, necessary for the assignment to Buyer of
any Station Asset to be assigned hereunder.
9.7. CLOSING COVENANT. On the Closing Date, Seller shall transfer,
convey, assign and deliver to Buyer the Station Assets as provided in Article 1
of this Agreement.
9.8. REVERSAL AGREEMENT. In the event that the Closing occurs prior to
the FCC Consent becoming a Final Order, at the Closing, Seller shall execute and
deliver the Reversal Agreement.
9.9. SELLER'S INTERMEDIARY. Notwithstanding anything to the contrary in
this Agreement, Seller may, at any time on or prior to the Closing, in the sole
exercise of its discretion, assign its rights under this Agreement to one or
more qualified intermediaries (as defined under applicable law and regulations)
in order to facilitate a like-kind exchange under Section 1031 of the Internal
Revenue Code of 1986, as amended, in which event Seller shall promptly notify
Buyer of such assignment; provided, that such
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assignment shall not affect Buyer's rights and obligations under this Agreement;
and provided further, that such assignment shall be at Seller's sole cost, with
any such costs incurred by Buyer to be reimbursed by Seller within ten (10) days
of Buyer's submission to Seller of invoices or other documentation of such
costs, and such assignment will not otherwise delay the Closing of the
transactions contemplated by this Agreement. Buyer will cooperate with Seller
and shall execute such other documents as Seller may reasonably request to
effect the assignment contemplated by this section.
9.10. PAYMENT OF INDEBTEDNESS; FINANCING STATEMENTS. Seller shall secure
the release of all liens or encumbrances on the Station Assets that secure the
payment of any indebtedness and shall deliver to Buyer at the Closing releases
or terminations under the Uniform Commercial Code and any other applicable
federal, state or local statutes or regulations of any financing or similar
statements filed against any Station Assets in (a) the jurisdictions in which
the Station Assets are and have been located since such Station Assets were
acquired by Seller, and (b) any other location specified or required by
applicable federal, state or local statutes or regulations.
9.11. NO INCONSISTENT ACTION. Seller shall not take any action which is
materially inconsistent with its obligations under this Agreement or that would
hinder or delay the consummation of the transactions contemplated by this
Agreement.
ARTICLE 10
JOINT COVENANTS
10.1. CONDITIONS. If any event should occur between the date hereof and
the Closing, either within or without the control of any party hereto, which
would prevent fulfillment of the conditions upon the obligations of any party to
consummate the transactions contemplated by this Agreement, the parties shall
use their reasonable efforts to cure the event as expeditiously as possible.
10.2. COMMERCIALLY REASONABLE EFFORTS. Between the date of this
Agreement and the Closing, each party shall use commercially reasonable efforts
to cause the fulfillment at the earliest practicable date of all of the
conditions to the obligations of the other party to consummate the sale and
purchase under this Agreement.
10.3. CONTROL OF STATION. Between the date of this Agreement and the
Closing, Buyer shall not, directly or indirectly, control, supervise or direct
the operations of the
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Station. Such operations shall be the sole responsibility of Seller and, subject
to the provisions of Article 9, shall be in its complete discretion.
10.4. CONFIDENTIALITY. Buyer and each Seller shall each keep
confidential all information obtained by it with respect to the other in
connection with this Agreement, and if the transactions contemplated hereby are
not consummated for any reason, each shall return to the other, without
retaining a copy thereof, any schedules, documents or other written information,
including all financial information, obtained from the other in connection with
this Agreement and the transactions contemplated hereby, except where such
information is known or available through other lawful sources or where such
party is advised by counsel that its disclosure is required in accordance with
applicable law.
ARTICLE 11
CONDITIONS PRECEDENT TO BUYER'S OBLIGATION TO CLOSE
The obligations of Buyer hereunder are, at its option, subject to
satisfaction, at or prior to the Closing Date, of each of the following
conditions:
11.1. REPRESENTATIONS, WARRANTIES AND COVENANTS.
(a) All representations and warranties of Seller made in this Agreement
shall be true, correct and complete in all material respects on and as of the
Closing Date as if made on and as of that date.
(b) All of the terms, covenants and conditions to be complied with and
performed by Seller on or prior to Closing Date shall have been complied with or
performed.
11.2. GOVERNMENTAL CONSENTS. The conditions specified in Article 4 of
this Agreement shall have been satisfied, and the FCC Consent shall have become
a Final Order, provided however, that either party shall have the right to
require the other to proceed to Closing upon an initial staff grant of the FCC
Consent, in which event the parties will enter into the Reversal Agreement.
11.3. GOVERNMENTAL AUTHORIZATIONS. Seller shall be the lawful holder of
the Station Licenses and all other material licenses, permits and other
authorizations listed in Schedule 1.2(a), and there shall not have been any
modification of any of such licenses, permits and other authorizations which
might have a material adverse effect on the
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Station or the conduct of its business and operation. No proceeding shall be
pending which seeks or the effect of which reasonably could be to revoke,
cancel, fail to renew, suspend or modify adversely any of the Station Licenses
or any other licenses, permits or other authorizations relating to the Station.
11.4. THIRD-PARTY CONSENTS. Seller shall have obtained and shall have
delivered to Buyer all third-party consents, if any, that may be required for
assignment of the Station Assets, without any material change or impairment of
such Station Assets.
11.5. ADVERSE PROCEEDINGS. No suit, action, claim or governmental
proceeding shall be pending against, and no order, decree or judgment of any
court, agency or other governmental authority shall have been rendered against,
any party hereto that Buyer in good faith, based upon a written opinion of
counsel (and provided to Seller), believes would or could (if resolved adversely
to Seller or Buyer) render it unlawful, as of the Closing Date, to effect the
transactions contemplated by this Agreement in accordance with its terms, or
would or could preclude Seller from assigning and conveying the Station Assets
to Buyer in accordance with the terms and conditions of this Agreement.
11.6. DELIVERIES. Seller shall have made or stand ready, willing and
able to make all the deliveries required under Section 13.1.
11.7. ENVIRONMENTAL AUDIT. Buyer shall have received, within sixty (60)
days of the date of this Agreement (and promptly thereafter provided to Seller),
completed Phase I environmental audit reports (the "Phase I Reports") at Buyer's
sole expense regarding the Tower Lease site, which Phase I Reports shall be
reasonably satisfactory to Buyer. In the event Buyer fails to obtain such Phase
I Reports within the aforementioned sixty (60) day period, Buyer shall have
irrevocably waived such condition. If, in Buyer's reasonable judgment, Phase II
environmental audit reports ("Phase II Reports") are necessary in light of the
contents of the Phase I Reports, at Buyer's sole expense, Buyer shall be
required to obtain such Phase II Reports to its reasonable satisfaction within
ninety (90) days of the date of this Agreement (and promptly thereafter provide
them to Seller). In the event Buyer fails to obtain any such Phase II Report
within such 90-day period, Buyer shall have irrevocably waived such condition.
In the event that a Phase I Report and/or a Phase II Report discloses an
environmental condition or matter which is reasonably unsatisfactory to Buyer,
Buyer shall notify Seller in writing of its objection to any environmental
condition or matter addressed in the Phase I Reports or Phase II Reports and
Seller shall have sixty (60) days from Seller's receipt of notice to remediate
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and eliminate such condition or matter, provided, that such matters and
conditions can be remediated and eliminated by Seller's expenditure of One
Hundred Thousand Dollars ($100,000) or less, such expense to be paid by Seller.
If the environmental condition or matter cannot be remediated and eliminated by
Seller's expense of One Hundred Thousand Dollars ($100,000) or less, Seller
shall elect (and provide Buyer with written notice of such election within the
sixty (60) day period following Buyer's initial notice) to either (a) proceed
with the remediation and elimination of such conditions and matters without
regard to the One Hundred Thousand Dollars ($100,000) expense threshold
referenced above, or (b) terminate this Agreement without any further obligation
or liability hereunder; provided however, that if Seller elects to so terminate
this Agreement, Buyer may then elect, by providing Seller with notice thereof
within ten (10) days after Buyer's receipt of Seller's election, to either: (a)
accept such termination by Seller, or (b) notwithstanding anything herein to the
contrary, waive all non-compliant environmental conditions and matters and any
claims it may have against Seller with respect to any such non-remediated or
non-compliant condition or matter, in which case the Closing will proceed as
contemplated by this Agreement (subject to its terms and conditions) and Buyer
shall receive a One Hundred Thousand Dollar ($100,000) credit against the
Purchase Price otherwise payable pursuant to Section 2.1 hereof.
11.8. FCC CONSENT TO ASSIGNMENT OF STATION KASY-TV; CONSUMMATION OF
KASY-TV AGREEMENT. The FCC shall have granted its consent to the assignment of
license of Station KASY-TV, Albuquerque, New Mexico from Buyer to Seller. The
parties' simultaneous closing of the KASY-TV Agreement shall be a condition
precedent to the Closing of this Agreement, provided, that if the parties are
prepared to close the KASY-TV Agreement, the parties shall simultaneously close
this Agreement (assuming that initial FCC Consent has been received and all
other conditions have been or will be satisfied or waived).
11.9. OPTION AGREEMENT AND LOCAL MARKETING AGREEMENT. Simultaneous with
the Closing of this Agreement, (a) Seller and Montecito Broadcasting, LLC shall
enter into an Option Agreement substantially in the form of Exhibit A (the
"Option Agreement"); and (b) Buyer and ATNM shall have entered into a Local
Marketing Agreement substantially in the form of Exhibit B ("LMA"), subject to
ATNM's right to waive this condition relating to the LMA pursuant to Section
11.8 of the KASY-TV Agreement.
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11.10. LIEN SEARCH. Buyer shall have received a written report
concerning the liens and other encumbrances, if any, on any of the Station
Assets and shall have received confirmation from Seller that any liens and other
encumbrances disclosed on such report have been removed or will be removed at
the Closing.
11.11. EQUIPMENT LEASE. Seller and Buyer shall have entered on the
Closing Date a transmitter equipment lease substantially in the form of Exhibit
C hereto (the "Equipment Lease").
11.12 COMMENCEMENT OF PROGRAM TESTS. Seller shall have commenced
operations on the Station pursuant to 47 C.F.R. Section 73.1620.
ARTICLE 12
CONDITIONS PRECEDENT TO SELLER'S OBLIGATION TO CLOSE
The obligations of Seller hereunder are, at its option, subject to
satisfaction, at or prior to the Closing Date, of each of the following
conditions:
12.1. REPRESENTATIONS, WARRANTIES AND COVENANTS.
(a) All representations and warranties made by Buyer in this Agreement
shall be true and complete in all material respects on and as of the Closing
Date as if made on and as of that date.
(b) All the terms, covenants and conditions to be complied with and
performed by Buyer under this Agreement on or prior to the Closing Date shall
have been complied with or performed in all material respects.
12.2. GOVERNMENTAL CONSENTS. The conditions specified in Article 4 and
Section 11.2 of this Agreement shall have been satisfied.
12.3. ADVERSE PROCEEDINGS. No suit, action, claim or governmental
proceeding shall be pending against, and no order, decree or judgment of any
court, agency or other governmental authority shall have been rendered against
any party hereto that Seller in good faith, based upon a written opinion of
counsel (and provided to Buyer) believes would or could (if resolved adversely
to Seller or Buyer) render it unlawful, as of the Closing Date, to effect the
transactions contemplated by this Agreement in accordance
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with its terms or would or could preclude Seller from assigning and conveying
the Station Assets to Buyer in accordance with the terms and conditions of this
Agreement..
12.4. DELIVERIES. Buyer shall have made or stand ready, willing and able
to make all the deliveries required under Section 13.2.
12.5. FCC CONSENT TO ASSIGNMENT OF STATION KASY-TV; CONSUMMATION OF
KASY-TV AGREEMENT. The FCC shall have granted its consent to the assignment of
the FCC Authorizations for Station KASY-TV, Albuquerque, New Mexico, from Buyer
to Seller. The parties' simultaneous closing of the KASY-TV Agreement shall be a
condition precedent to the Closing of this Agreement; provided, that, if the
parties are prepared to close the KASY-TV Agreement, the parties shall
simultaneously close this Agreement (assuming that initial FCC Consent has been
received and all other conditions have been or will be satisfied or waived).
12.6. OPTION AGREEMENT AND LOCAL MARKETING AGREEMENT. Simultaneous with
the Closing of this Agreement (a) Seller and Montecito Broadcasting, LLC shall
enter into the Option Agreement; and (b) Buyer and ATNM shall enter into the
LMA, subject to ATNM's right to waive this condition relating to the LMA
pursuant to Section 11.8 of the KASY-TV Agreement.
ARTICLE 13
DOCUMENTS TO BE DELIVERED AT THE CLOSING
13.1. DOCUMENTS TO BE DELIVERED BY SELLER. At the Closing, Seller shall
deliver to Buyer the following:
(a) a certificate of an officer of each Seller, dated the
Closing Date, in form and substance reasonably satisfactory to Buyer,
certifying to the fulfillment of the conditions set forth in Sections
11.1 through 11.10 hereof;
(b) instruments of conveyance and transfer, in form and substance
reasonably satisfactory to counsel to Buyer, effecting the sale,
transfer, assignment and conveyance of the Station Assets to Buyer,
including, but not limited to, the following:
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(i) assignment of the Station Licenses and other Government
Authorizations;
(ii) bills of sale for all Personal Property, expressly included
as a Station Asset under Section 1.2 hereof;
(iii) assignments, any necessary consents, and Estoppel
Certificates relative to the Tower Lease;
(iv) assignment of all intangible personal property, expressly
included as a Station Asset under Section 1.2 hereof;
(c) the Reversal Agreement unless at the time of Closing the FCC
Consent shall have become a Final Order;
(d) resolutions of the members of each Seller, authorizing the
execution, delivery and performance of this Agreement, certified by the
secretary of Seller;
(e) the LMA (unless waived by ATNM pursuant to Section 11.8 of
the KASY-TV Agreement;
(f) the Equipment Lease;
(g) such other documents as may reasonably be requested by
Buyer's counsel; and
(h) the opinion of Seller's legal counsel in form and substance
reasonably satisfactory to Buyer.
13.2. DOCUMENTS TO BE DELIVERED BY BUYER. At the Closing, Buyer shall
deliver to Seller the following:
(a) a certificate of an officer of Buyer's general partner, dated the
Closing Date, in form and substance reasonably satisfactory to Seller,
certifying to the fulfillment of the conditions specified in Sections 12.1
through 12.6 hereof;
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(b) immediately available wire-transferred federal funds as provided in
Section 2.2;
(c) instruments, in form and substance reasonably satisfactory to Seller
and its counsel, pursuant to which Buyer assumes obligations, liabilities and
commitments as provided in Article 3 specifically including, without limitation,
with respect to the Tower Lease;
(d) the opinion of Buyer's legal counsel in form and substance
reasonably satisfactory to Seller;
(e) resolutions of the members of Buyer's general partner, countersigned
by the Buyer's limited partners, authorizing the execution, delivery and
performance of this Agreement, certified by the secretary of Seller;
(f) the LMA (unless waived by ATNM pursuant to Section 11.8 of the
KASY-TV Agreement);
(g) the Equipment Lease; and
(h) such other documents as may reasonably be requested by Seller's
counsel.
ARTICLE 14
TRANSFER TAXES; FEES AND EXPENSES
14.1. TRANSFER TAXES AND SIMILAR CHARGES. Except as set forth in
Sections 14.2 and 14.3 hereof, all costs of transferring the Station Assets in
accordance with this Agreement, including recordation, transfer and documentary
taxes and fees, and any excise, sales or use taxes, shall be borne by Seller.
14.2. GOVERNMENTAL FILING OR GRANT FEES. Any filing or grant fees
imposed by the FCC shall be borne equally by Buyer and Seller.
14.3. EXPENSES. Except as otherwise provided in this Agreement, each
party hereto shall be solely responsible for and shall pay all costs and
expenses incurred by it in connection with the negotiation, preparation and
performance of and compliance with the terms of this Agreement.
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ARTICLE 15
BROKER'S COMMISSION OR FINDER'S FEE
15.1. BUYER'S REPRESENTATION AND AGREEMENT TO INDEMNIFY. Buyer
represents and warrants to Seller that neither it nor any person or entity
acting on its behalf has agreed to pay a commission, finder's fee or similar
payment in connection with this Agreement or any matter related hereto to any
person or entity, nor has it or any person or entity acting on its behalf taken
any action on which a claim for any such payment could be based. Buyer agrees to
indemnify and hold Seller harmless from and against any and all claims, losses,
liabilities and expenses (including reasonable attorneys' fees) arising out of a
claim by any person or entity based on any such arrangement or agreement made or
alleged to have been made by Buyer.
15.2. SELLER'S REPRESENTATION AND AGREEMENT TO INDEMNIFY. Seller
represents and warrants to Buyer that neither it nor any person or entity acting
on its behalf has agreed to pay a commission, finder's fee or similar payment in
connection with this Agreement or any matter related hereto to any person or
entity, nor has it or any person or entity acting on its behalf taken any action
on which a claim for any such payment could be based. Seller agrees to indemnify
and hold Buyer harmless from and against any and all claims, losses, liabilities
and expenses (including reasonable attorneys' fees) arising out of a claim by
any person or entity based on any such arrangement or agreement made or alleged
to have been made by Seller. Seller agrees to be solely responsible for the
payment on the Closing Date of the $250,000 fee due to Xxxxx Xxxxx in connection
with the KASY-TV Agreement.
ARTICLE 16
INDEMNIFICATION
16.1. INDEMNIFICATION BY SELLER. Notwithstanding the Closing, Seller
hereby agrees to indemnify, defend and hold Buyer harmless against and with
respect to, and shall reimburse Buyer for:
(a) Any and all losses, direct or indirect, liabilities, or damages
resulting from any untrue representation, breach of warranty, or nonfulfillment
of any covenant or obligation by any Seller contained herein or in any
certificate, document or instrument delivered to Buyer hereunder;
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(b) Any and all obligations of each Seller not assumed by Buyer pursuant
to the terms of this Agreement;
(c) Any and all losses, liabilities or damages resulting from the
construction, operation or ownership of the Station prior to the Effective Time,
including but not limited to (i) any and all liabilities arising under the
Station Licenses or the Tower Lease or any other Station Asset assigned to Buyer
which relate to events occurring prior to the Effective Time; and (ii) any
fines, forfeitures, and other penalties imposed by the FCC related to Seller's
operation of the Station prior to Closing (e.g. commercial overages for
children's programming) (collectively, "FCC Penalties").
(d) Any and all losses, liabilities or damages resulting from any
failure to comply with any "bulk sales" laws applicable to the transactions
contemplated by this Agreement;
(e) Any and all losses, liabilities or damages resulting from the
litigation listed on Schedule 7.7;
(f) Any and all actions, suits, proceedings, claims, demands,
assessments, judgments, costs and expenses, including reasonable legal fees and
expenses, incident to any of the foregoing or incurred in investigating or
attempting to avoid the same or to oppose the imposition thereof, or in
enforcing this indemnity, subject to the notice and opportunity to remedy
requirements of Section 16.3 hereof; and
(g) Interest at the Prime Rate on any reimbursable expense or loss
incurred by Seller from the date of payment, in the case of a reimbursable
expense, and from the date of incurrence, in the case of any other losses, until
the date of reimbursement by Buyer.
16.2. INDEMNIFICATION BY BUYER. Notwithstanding the Closing, Buyer
hereby agrees to indemnify and hold the Seller harmless against and with respect
to, and shall reimburse the Seller for:
(a) Any and all losses, direct or indirect, liabilities, or damages
resulting from any untrue representation, breach of warranty, or nonfulfillment
of any covenant or obligation by Buyer contained herein or in any certificate,
document or instrument delivered to Seller hereunder;
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(b) Subject to the provisions of the LMA, any and all losses,
liabilities or damages resulting from the operation or ownership of the Station
by Buyer on and after the Effective Time, including but not limited to any and
all liabilities arising under the Station Licenses, Tower Lease or any other
Station Asset assigned to Buyer relating to events occurring after the Effective
Time;
(c) Any and all actions, suits, proceedings, claims, demands,
assessments, judgments, costs and expenses, including reasonable legal fees and
expenses, incident to any of the foregoing or incurred in investigating or
attempting to avoid the same or to oppose the imposition thereof, or in
enforcing this indemnity, subject to the notice and opportunity to remedy
requirements of Section 16.3 hereof; and
(d) Interest at the Prime Rate on any reimbursable expense or loss
incurred by Seller from the date of payment, in the case of a reimbursable
expense, and from the date of incurrence, in the case of any other losses, until
the date of reimbursement by Buyer.
16.3. PROCEDURE FOR INDEMNIFICATION. The procedure for indemnification
shall be as follows:
(a) The party seeking indemnification under this Article 16 (the
"Claimant") shall give notice to the party from whom indemnification is sought
(the "Indemnitor") of any claim, whether solely between the parties or brought
by a third party, specifying (i) the factual basis for the claim, and (ii) the
amount of the claim. If the claim relates to an action, suit or proceeding filed
by a third party against Claimant, notice shall be given by Claimant within
fifteen (15) business days after written notice of the action, suit or
proceeding was given to Claimant, or sooner if action is required by the
Indemnitor prior to the expiration of the fifteen (15) business days. In all
other circumstances, notice shall be given by Claimant within thirty (30)
business days after Claimant becomes, or should have become, aware of the facts
giving rise to the claim. Notwithstanding the foregoing, Claimant's failure to
give Indemnitor timely notice shall not preclude Claimant from seeking
indemnification from Indemnitor except to the extent that Claimant's failure has
materially prejudiced Indemnitor's ability to defend the claim or litigation.
(b) With respect to claims between the parties, following receipt of
notice from the Claimant of a claim, the Indemnitor shall have thirty (30)
business days to make any investigation of the claim that the Indemnitor deems
necessary or desirable. For the purposes of this investigation, the Claimant
agrees to make available to the Indemnitor
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and/or its authorized representatives the information relied upon by the
Claimant to substantiate the claim. If the Claimant and the Indemnitor cannot
agree as to the validity and amount of the claim within the 30-day period (or
any mutually agreed upon extension thereof), the Claimant may seek appropriate
legal remedy.
(c) With respect to any claim by a third party as to which the Claimant
is entitled to indemnification hereunder, the Indemnitor shall have the right at
its own expense to participate in or assume control of the defense of the claim,
and the Claimant shall cooperate fully with the Indemnitor, subject to
reimbursement for actual out-of-pocket expenses incurred by the Claimant as the
result of a request by the Indemnitor. If the Indemnitor elects to assume
control of the defense of any third-party claim, the Claimant shall have the
right to participate in the defense of the claim at its own expense. If the
Indemnitor does not elect to assume control or otherwise participate in the
defense of any third party claim, Claimant may, but shall have no obligation to,
defend or settle such claim or litigation in such manner as it deems
appropriate, and in any event Indemnitor shall be bound by the results obtained
by the Claimant with respect to the claim (by default or otherwise) and shall
promptly reimburse Claimant for the amount of all expenses (including the amount
of any judgment rendered), legal or otherwise, incurred in connection with such
claim or litigation. The Indemnitor shall be subrogated to all rights of the
Claimant against any third party with respect to any claim for which indemnity
was paid. Notwithstanding anything herein to the contrary, neither Indemnitor
nor Claimant shall settle any third party claim or litigation without providing
the other party reasonable prior notice of the terms of such settlement at least
five (5) business days prior to the execution of any such settlement, unless
emergency circumstances dictate otherwise; provided, that Indemnitor shall not
enter into any such settlement of third party claim without the Claimant's prior
written approval, which approval shall not be unreasonably withheld and shall,
in any event, be provided if the settlement provides a full release of liability
for Claimant and does not otherwise impose any liability on Claimant.
16.4. LIMITATIONS. Neither any Seller nor Buyer shall have any
obligation to the other party for any matter described in Section 16.1 or
Section 16.2, as the case may be, except upon compliance by the other party with
the provisions of this Article 16, particularly Section 16.3. Neither party
shall be required to indemnify the other party under this Article 16 for any
breach of any representation or warranty contained in this Agreement unless
written notice of a claim under this Article 16 was received by the party within
the pertinent survival period specified in Article 18 of this Agreement.
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ARTICLE 17
TERMINATION RIGHTS
17.1. TERMINATION.
(a) This Agreement may be terminated by either Buyer or Seller, if the
party seeking to terminate is not in material breach of this Agreement, upon
written notice to the other upon the occurrence of any of the following:
(i) if, on or prior to the Closing Date, there is a material
breach by the other party with respect to the observance or in the due
and timely performance of any of its covenants or agreements contained
herein and such party fails to cure such breach within ten (10) business
days from receipt of written notice of such breach;
(ii) if, by Final Order, the FCC or its staff denies the FCC
Application or any part thereof or designates the FCC Application for a
trial-type hearing;
(iii) if there shall be in effect any judgment, final decree or
order that would prevent or make unlawful the Closing; or
(iv) if the FCC staff has not issued the FCC Consent within
eighteen (18) months of the date the FCC Application is submitted to the
FCC.
(b) This Agreement may be terminated by Buyer, upon written notice to
Seller if Buyer elects to terminate pursuant to Article 20 hereof.
(c) This Agreement may be terminated by Seller, upon written notice to
Buyer of Seller's election under Section 11.7 hereof (which has not been set
aside by Buyer's waiver).
(d) This Agreement shall automatically terminate upon termination of the
KASY- TV Agreement.
17.2. LIABILITY. Except as otherwise provided in Section 11.7 and
Article 20 hereof, the termination of this Agreement under Section 17.1 hereof
shall not relieve any party of any liability for breach of this Agreement prior
to the date of termination.
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ARTICLE 18
SURVIVAL OF REPRESENTATIONS,
WARRANTIES AND COVENANTS
The representations, warranties, covenants, indemnities and agreements
contained in this Agreement or in any certificate, document or instrument
delivered pursuant to this Agreement are and will be deemed and construed to be
continuing representations, warranties, covenants, indemnities and agreements
and shall survive the Closing for a period of two (2) years after the Closing
Date, except for (a) agreements under Section 10.4 of this Agreement, which
shall survive the Closing for five (5) years, and (b) indemnification
obligations resulting from or for third party claims, which shall survive the
Closing for a period of one (1) month after the last day of the longest
applicable statutory limitation period. No claim may be brought under this
Agreement or any other certificate, document or instrument delivered pursuant to
this Agreement unless written notice describing in reasonable detail the nature
and basis of such claim is given on or prior to the last day of the applicable
survival period. In the event such a notice is given, the right to
indemnification with respect thereto shall survive the applicable survival
period until such claim is finally resolved and any obligations thereto are
fully satisfied. Any investigation by or on behalf of any party hereto shall not
constitute a waiver as to enforcement of any representation, warranty, covenant
or agreement contained herein.
ARTICLE 19
REMEDIES
19.1. DEFAULT BY SELLER. Seller recognizes that, in the event Seller
defaults in the performance of its obligations under this Agreement, monetary
damages alone will not be adequate. Buyer shall therefore be entitled in such
event, in addition to bringing suit at law or equity for money or other damages
(including costs and expenses incurred by Buyer in the preparation and
negotiation of this Agreement and in contemplation of the Closing hereunder) or
for indemnification under Article 16 hereof, to seek to obtain specific
performance of the terms of this Agreement. In any action to enforce the
provisions of this Agreement, Seller shall waive the defense that there is an
adequate remedy at law or equity and agree that Buyer shall have the right to
seek to obtain specific performance of the terms of this Agreement without being
required to prove actual damages, post bond or furnish other security. In
addition, Buyer shall be entitled to obtain from Seller court costs and
reasonable attorneys' fees incurred by it in successfully enforcing its rights
hereunder, plus interest at the Prime Rate on the amount
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of any judgment obtained against Seller from the date of default until the date
of payment of the judgment. As a condition to seeking specific performance,
Buyer shall not be required to have tendered the Purchase Price specified in
Section 2.1 of this Agreement, but shall be ready, willing and able to do so.
19.2. DEFAULT BY BUYER. In the event Buyer defaults in the performance
of its obligations under this Agreement, Seller shall be entitled to bring suit
at law or equity for money or other damages (including costs and expenses
incurred by Seller in the preparation and negotiation of this Agreement and in
contemplation of the Closing hereunder) or for indemnification under Article 16
hereof. In addition, Seller shall be entitled to obtain from Buyer court costs
and reasonable attorneys' fees incurred by it in 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.
ARTICLE 20
RISK OF LOSS
The risk of loss or damage to the Station Assets prior to the Effective
Time shall be upon Seller. Seller shall repair, replace and restore any damaged
or lost Station Asset to its prior condition as soon as possible and in no event
later than the Effective Time. If Seller is unable or fails to restore or
replace any such lost or damaged Station Asset(s) prior to the Closing and the
aggregate cost of such restoration or replacement would exceed One Hundred
Thousand Dollars ($100,000), Buyer may elect (a) to terminate this Agreement
pursuant to Article 17 hereof, (b) to consummate the transactions contemplated
by this Agreement on the Closing Date, in which event Seller shall assign to
Buyer at Closing Seller's rights under any insurance policy or pay over to Buyer
all proceeds of insurance covering such Station Asset's damage, destruction or
loss (plus an amount equal to any deductible) without further obligation or
liability to Buyer for such loss, or (c) delay the Closing Date until a date
within fifteen (15) days after Seller gives written notice to Buyer of
completion of the restoration or replacement of such Station Asset(s). If Seller
is unable or fails to restore or replace any lost or damaged Station Asset(s)
prior to the Closing Date and the aggregate cost of such restoration or
replacement would be One Hundred Thousand Dollars ($100,000) or less, Seller
shall reimburse Buyer for the cost of restoration or replacement of such
asset(s). If the delay in the Closing Date under this Article 20 would cause the
Closing to fall at any time after the period permitted by the FCC Consent,
Seller and Buyer shall file an appropriate request with the FCC for an extension
of time within which to complete the Closing.
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ARTICLE 21
OTHER PROVISIONS
21.1. PUBLICITY. Except as required by applicable law or with the other
party's express written consent, no party to this Agreement nor any Affiliate of
any party shall issue any press release or make any public statement (oral or
written) regarding the transactions contemplated by this Agreement.
21.2. BENEFIT AND ASSIGNMENT. This Agreement shall be binding upon and
shall inure to the benefit of the parties hereto and their respective successors
and assigns. Neither Buyer nor Seller may assign this Agreement without the
prior written consent of the other parties hereto except that Buyer may assign
its rights and obligations under this Agreement to an Affiliate of Buyer;
provided, that Buyer will remain liable in the event such assignee fails to
fulfill Buyer's obligations hereunder.
21.3. ENTIRE AGREEMENT. This Agreement, along with the exhibits and
schedules and other documents referenced herein, embodies the entire agreement
and understanding of the parties hereto and supersede any and all prior
agreements, arrangements and understandings relating to the matters provided for
herein. No amendment, waiver of compliance with any provision or condition
hereof, or consent pursuant to this Agreement shall be effective unless
evidenced by an instrument in writing signed by the party against whom
enforcement of any waiver, amendment, change, extension or discharge is sought.
21.4. HEADINGS. The headings set forth in this Agreement are for
convenience only and will not control or affect the meaning or construction of
the provisions of this Agreement.
21.5. COMPUTATION OF TIME. If after making computations of time provided
for in this Agreement, a time for action or notice falls on Saturday, Sunday or
a Federal holiday, then such time shall be extended to the next business day.
21.6. GOVERNING LAW. The construction and performance of this Agreement
shall be governed by the laws of the State of New Mexico without regard to its
principles of conflict of law.
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21.7. NOTICES. Any notice, demand or request required or permitted to be
given under the provisions of this Agreement shall be in writing, addressed to
the following addresses, or to such other address as any party may request in
writing.
To Seller: ACME Television of New Mexico, LLC
ACME Television Licenses of New Mexico, LLC
00000 Xxxxx Xxxxxxxxx, Xxxxx 000
Xx. Xxxxx, XX 00000
Attention: Xx. Xxxx Xxxxx
Telecopy: 314-989-0566
Telephone: 000-000-0000
With a copy (which shall not constitute notice) to:
Xxxxxxxxx Xxxxxxx Xxxxx & Xxxxxxxx, L.L.P.
0000 X Xxxxxx, X.X.
Xxxxxxxxxx, XX 00000
Attention: Xxxxx X. Paper, Esq.
Telecopy: 000-000-0000
Telephone: 000-000-0000
To Buyer: Ramar Communications II, Ltd.
0000 Xxxxxxxxxx Xxxxxx
Xxxxxxx, XX 00000
Attention: Mr. Xxxx Xxxxx
Telecopy: 000-000-0000
Telephone: 000-000-0000
With a copy (which shall not constitute notice) to:
Xxxxxxxxx, Xxxxxx & Xxxxxx P.L.L.C.
Xxxxx 000
0000 X Xxxxxx, X.X.
Xxxxxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxx, Esq.
Telecopy: 202-293-7783
Telephone: 000-000-0000
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Any such notice, demand or request shall be deemed to have been duly delivered
and received (i) on the date of personal delivery, or (ii) on the date of
transmission, if sent by facsimile (but only if a hard copy is also sent by
overnight courier), or (iii) on the date of receipt, if mailed by registered or
certified mail, postage prepaid and return receipt requested, or (iv) on the
date of a signed receipt, if sent by an overnight delivery service, but only if
sent in the same manner to all persons entitled to receive notice or a copy.
21.8. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which will be deemed an original and all of which together
will constitute one and the same instrument.
21.9. FURTHER ASSURANCES. Seller shall at any time and from time to time
after the Closing execute and deliver to Buyer such further conveyances,
assignments and other written assurances as Buyer may reasonably request in
order to vest and confirm in Buyer (or their assignees) the title and rights to
and in all of the Station Assets to be and intended to be transferred, assigned
and conveyed hereunder.
ARTICLE 22
DEFINITIONS
Unless otherwise stated in this Agreement, the following terms when used
herein shall have the meanings assigned to them below (such meanings to be
equally applicable to both the singular and plural forms of the terms defined).
"ATNM" shall have the meaning set forth in the preamble to this
Agreement.
"ATLNM" shall have the meaning set forth in the preamble to this
Agreement.
"Accounts Receivable" shall have the meaning set forth in Section
1.3(f).
"Affiliate" shall mean any person or entity that is controlling,
controlled by or under common control with the named person or entity.
"Agreement" shall mean this Asset Purchase Agreement, including the
exhibits and schedules hereto.
"Buyer" shall have the meaning set forth in the preamble to this
Agreement.
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"Business Day," whether or not capitalized, shall mean every day of the
week excluding Saturdays, Sundays and Federal holidays.
"Claimant" shall have the meaning set forth in Section 16.3(a).
"Closing" shall have the meaning set forth in Section 1.1 hereof.
"Closing Date" shall mean the date on which the Closing is completed.
"Contracts" shall mean any and all of the contracts, agreements,
including leases (other than those relating to real property), commitments and
understandings, options, rights and interests, written or oral, of any Seller or
to which any Seller is a party, relating to the conduct of the business and
operations of the Station.
"Effective Time" shall mean 12:01 a.m., Mountain Time, on the Closing
Date.
"Environmental Laws" shall mean all applicable local, state and federal
statutes and regulations relating to the protection of human health or the
environment including the FCC's regulations concerning radio frequency
radiation.
"FCC" shall mean the Federal Communications Commission.
"FCC Application" shall mean the application or applications that Seller
and Buyer must file with the FCC requesting its consent to the assignment of the
Station Licenses.
"FCC Consent" shall mean the action by the FCC or its staff granting the
FCC Application.
"Final Order" shall mean action by the FCC (i) which has not been
vacated, reversed, stayed, set aside, annulled or suspended, (ii) with respect
to which no timely appeal, request for stay or petition for rehearing,
reconsideration or review by any party or by the FCC on its own motion, is
pending, and (iii) as to which the time for filing any such appeal, request,
petition, or similar document or for the reconsideration or review by the FCC on
its own motion under the Communications Act of 1934, as amended, and the rules
and regulations of the FCC, has expired.
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"GAAP" shall mean generally accepted accounting principles, consistently
applied.
"Government Licenses" shall have the meaning set forth in Section 1.2(a)
hereof.
"Hazardous Substance" shall mean all hazardous or toxic waste or
material which, because of its quantity, concentration or physical, chemical or
infectious characteristics, may cause or pose a present or potential hazard to
human health or the environment when improperly used, treated, stored, disposed
of, generated, manufactured, transported or otherwise handled. "Hazardous
Substance" shall include, but is not limited to, any and all hazardous or toxic
substances, materials or wastes as defined or listed under the Resource
Conservation and Recovery Act, the Toxic Substances Control Act, the
Comprehensive Environmental Response, Compensation and Liability Act or any
comparable state statute or any regulation promulgated under any of such federal
or state statutes. "Hazardous Substance" shall not include ordinary quantities
of consumer or commercial products used in the normal course of broadcast
station operations, including grounds and building operation and maintenance;
provided, that such products have been properly stored, handled and disposed of
in accordance with applicable law and regulation.
"Indemnitor" shall have the meaning set forth in Section 16.3(a).
"Intellectual Property" shall mean all trademarks, trade names, service
marks, patents, franchises, copyrights, including applications for registration
of any of them, jingles, logos, slogans, licenses, permits and privileges, trade
secrets, and other similar intangible property rights and interests owned by or
licensed to Seller and used or useful in the operation of the Station.
"KASY-TV Agreement" shall mean that certain Asset Purchase Agreement
dated as of the date hereof by and between Seller and Buyer relating to the sale
and acquisition of Station KASY-TV, Albuquerque, New Mexico.
"Liens" shall mean mortgages, deeds of trust, liens, pledges, collateral
assignments, security interests, leases, subleases, conditional sales
agreements, easements, covenants, encroachments, encumbrances or other defects
of title.
"LMA" shall have the meaning set forth in Section 11.9.
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"Notice of Disagreement" shall have the meaning set forth in Section
5.2.
"Option Agreement" shall have the meaning set forth in Section 11.10.
"Permitted Encumbrances" shall mean (a) liens for Taxes not yet due and
payable; (b) landlord's liens; and (c) statutory liens that were created in the
ordinary course of business that do not materially affect the current use and
enjoyment of the Station Assets.
"Prime Rate" shall mean a per annum rate equal to the "prime rate" as
published in the Money Rates column of the Eastern Edition of The Wall Street
Journal (or the average of such rates if more than one rate is indicated).
"Proration Schedule" shall have the meaning set forth in Section 5.2.
"Purchase Price" shall have the meaning set forth in Section 2.1.
"Referee" shall have the meaning set forth in Section 5.2.
"Reversal Agreement" shall mean a reversal agreement between Seller and
Buyer in a mutually-agreeable form.
"Seller" shall have the meaning set forth in the preamble to this
Agreement.
"Seller's Proration Amount" shall have the meaning set forth in Section
5.2.
"Station" shall mean television broadcast station KWBQ-TV, Santa Fe, New
Mexico.
"Station Assets" shall have the meaning set forth in Section 1.2.
"Station Licenses" shall mean the licenses, permits and other
authorizations, including any temporary waiver or special temporary
authorization, issued by the FCC to Seller in connection with the conduct of the
business and operation of the Station.
"Tower Lease" shall have the meaning set forth in Section 1.2(b).
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be duly executed as of the date first written above.
[SIGNATURES BEGIN ON PAGE IMMEDIATELY FOLLOWING]
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RAMAR COMMUNICATIONS II, LTD.
By: XX Xxxxx, LLC, its General Partner
By: Ramar Communications, Inc., Sole Member
By: /s/ Xxxx Xxxxx
---------------------------------
Xxxx Xxxxx, President
ACME TELEVISION LICENSES OF
NEW MEXICO, LLC
By: /s/ Xxxx Xxxxx
---------------------------------
Xxxx Xxxxx, President
ACME TELEVISION OF NEW MEXICO, LLC
By: /s/ Xxxx Xxxxx
---------------------------------
Xxxx Xxxxx, President
40
EXHIBIT 10.1
The Following Schedules and Exhibits have been intentionally omitted by the
Registrants.
LIST OF EXHIBITS
Exhibit A Form of Option
Exhibit B Form of LMA
Exhibit C Form of Equipment Lease
LIST OF SCHEDULES
Schedule 1.2L(a) Station Licenses (pending applications)
Schedule 1.2(b) Tower Lease
Schedule 6.4 Buyer's Required Consents
Schedule 6.5 Buyer's Litigation
Schedule 7.3 Seller's Required consents
Schedule 7.7 Seller's Litigation
Schedule 7.12 UCC Financing Statements
A copy of any omitted Schedule or Exhibit will be provided to the Securities and
Exchange Commission upon request.
