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EXHIBIT 10.1
This Assignment Agreement is made this 16th day of June, 1998, and is
by and between Xxxx Xxxxx Xxxxxx, d/b/a E&R Communications ("Xxxxxx"),
Xxxxxx-Xxxxxxxx, LLC ("CHL"), Xxxxxx X. Xxxxxx ("Xxxxxx") and ACME Television
Licenses of Tennessee, LLC ("ACME") (Xxxxxx, CHL, Xxxxxx and ACME are sometimes
referred to herein collectively as the "Parties").
WHEREAS, ACME and Xxxxxx are parties to that certain Agreement (the
"Settlement Agreement") dated January 30, 1998, which, inter alia, contemplates
the grant of an application for a construction permit (the "CP") to authorize
ACME to build a new television station on Channel 31 in Harrison, Arkansas (the
"Station"); and
WHEREAS, Xxxxxx was one of the individuals referred to in the
Settlement Agreement as a partner in the "Xxxxxx-Xxxxx Partnership" (the
"Partnership"), but a question exists as to whether that Partnership ever came
into existence as a legal entity; and
WHEREAS, Xxxxxx was the other individual referred to in the Settlement
Agreement as a partner in the Xxxxxx-Xxxxx Partnership; and
WHEREAS, Paragraph 3 of the Settlement Agreement provides the
Partnership with an option to acquire the CP upon (1) the payment of certain
monies specified therein to ACME and (2) the Partnership's assumption of the WB
Television Network Affiliation Agreement (the "Affiliation Agreement") executed
by ACME, a copy of which is annexed hereto as Exhibit A; and
WHEREAS, Xxxxxx is the sole member of CHL, and Xxxxxx and Xxxxxx, as
individuals and as partners in the Xxxxxx-Xxxxx Partnership (to the extent that
it exists) desire that CHL, rather than the Partnership, be the entity that
acquires the CP from ACME, with the understanding that, in agreeing to convey
the CP to CHL, ACME has fully complied with its obligations under the Settlement
Agreement; and
WHEREAS, Xxxxxxxx Television, Inc. ("HTI")and Agape Church, Inc.
("Agape") also filed separate and mutually exclusive applications for the CP and
entered into settlement
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agreements with Xxxxxx whereby HTI and Agape relinquished, in exchange for
consideration, any rights they had with regard to the CP;
NOW, THEREFORE, in view of the foregoing and the mutual promises and
covenants contained herein, the parties hereby agree as follows:
1. Subject to the terms and conditions of this Agreement, at the
Closing, as defined herein, ACME will assign the CP to CHL in exchange for CHL's
(a) payment to ACME of the monies required to be paid under Paragraph 3 of the
Settlement Agreement and (b) assumption of ACME's rights and obligations under
the Affiliation Agreement.
2. By execution of this Agreement, Xxxxxx and Xxxxxx, as individuals
and as partners in the Xxxxxx-Xxxxx Partnership (to the extent that it exists)
acknowledge (1) that the Partnership (to the extent that it exists) has assigned
all of its rights and obligations under the Settlement Agreement to CHL for
consideration (pursuant to that certain Settlement Agreement, Waiver and Mutual
Release executed by and between Xxxxxx and Xxxxxx), the sufficiency of which is
hereby acknowledged; and (2) that CHL may rightfully exercise the option for the
CP under the Settlement Agreement. Xxxxxx and Xxxxxx, as individuals and as
partners in the Xxxxxx-Xxxxx partnership (to the extent that it exists), each
releases ACME, its members, affiliates, directors, officers and their agents,
from any and all claims which each of them or the Partnership has, would have or
may have under the Settlement Agreement, regardless of whether such claims are
known or unknown, asserted or unasserted. For its part, ACME hereby releases any
claims it does have or may have under the Settlement Agreement against the
Partnership, its partners, its agent, Xxxxxx and Xxxxxx, regardless of whether
such claims are known or unknown, asserted and unasserted.
3. In accordance with its obligations under Paragraph 7 of the
Settlement Agreement, ACME has paid the amounts of $700,000 to Agape and
$1,100,000 to HTI, and within five days from the execution of this Agreement,
ACME will endeavor to secure from each of Agape and HTI a release of Xxxxxx and
CHL, each of their members, affiliates, directors, officers, agents, successors,
and assigns from any and all claims, whether known or
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unknown, asserted or unasserted, which HTI or Agape has, would have or may have
pursuant to any application or settlement agreement concerning the CP.
4. Within five days of executing this Assignment Agreement, ACME and
CHL will jointly file with the FCC an application (the "Application") to assign
the CP from ACME to CHL. ACME and CHL will cooperate with each other and use
commercially reasonable efforts in preparing and prosecuting the Application.
5. CHL has placed $3,364,000 in an Escrow Account pursuant to the
Escrow Agreement (the "Second Escrow Agreement"), annexed hereto as Exhibit B,
which has been executed by CHL and the Escrow Agent and will be executed by ACME
simultaneously upon ACME's execution of this Agreement.
6. The consummation of the transactions contemplated hereby (the
"Closing") will take place at a mutually agreeable time at the offices of ACME's
counsel, within five business days of the date on which the FCC issues a grant
of the Application, with that grant including a waiver of the prohibition
against selling an unbuilt CP for more than out-of-pocket expenses. At the
Closing, the following actions will be taken:
a. CHL and ACME will jointly instruct the Escrow Agent to use the
monies in the aforesaid Escrow Account to pay ACME $2,939,000,
plus or minus whatever adjustments are warranted under Paragraph 3
of the Settlement Agreement, which payment shall constitute all
payments from Xxxxxx to ACME required by the Settlement Agreement,
including reimbursement for the aforementioned payments made by
ACME to Agape and HTI, and to pay the remainder of the principal
in the Escrow Amount to Xxxxxx. (Interest shall be paid to ACME.)
All payments pursuant to this subparagraph shall be by bank
cashier's or certified check, or by wire transfer of immediately
available funds.
b. CHL will execute whatever documents may be required to assume any
and all rights and obligations of ACME under the Affiliation
Agreement annexed hereto and thereby release ACME of any and all
obligations and liabilities thereunder.
c. ACME will assign to CHL all of the ACME's rights and interests in
the CP.
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7. In the event that the FCC or a court of competent jurisdiction
issues an order requiring CHL to return the CP to ACME, and the order has become
final (meaning that the order is no longer subject to reconsideration or review
y the FCC or a court of competent jurisdiction), CHL and ACME shall cooperate so
that, within fourteen (14) days of such order, the CP is returned to ACME shall
cooperate so that, within fourteen (14) days of such order, the CP is returned
to ACME and, simultaneously therewith, ACME shall pay to CHL all amounts paid to
ACME pursuant to Paragraph 6 hereof, by bank cashier's check or certified check,
or by wire transfer of immediately available funds, provided that, in the event
the FCC or the court orders rescission and return of the CP to ACME prior to
such rescission becoming final, all amounts paid to ACME shall be returned to
CHL simultaneously with return of the CP.
8. This Agreement, and the documents referenced herein, constitute the
entire agreement of the Parties with respect to the subject matter hereof and
supersede any and all prior and contemporaneous agreements and understandings.
If there are any conflicts between this Agreement and the Settlement Agreement,
the provisions of this Agreement shall apply. This Agreement may not be amended
except by a document executed by the Parties affected by the amendment.
9. No failure or delay on the part of the ACME or CHL in exercising
any right or power hereunder shall operate as a waiver thereof. Nor shall any
single or partial exercise of any such right or power, or any abandonment or
discontinuance of steps to enforce such a right or power, preclude any other or
further exercise thereof or the exercise of any other right or power. The rights
and remedies of the Parties herein provided are cumulative and are not exclusive
of any right or remedies which they may otherwise have. ACME recognizes that the
CP is a special and unique asset which gives it a particular value, the loss of
which cannot be adequately or reasonably compensated by damages in an action at
law, and that ACME's failure to perform its obligations under this Agreement
would therefore cause CHL irreparable injury or damage. In addition to any other
right or remedy given to CHL under this Agreement
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or at law or in equity, CHL shall therefore be entitled to specific performance
relief in the event that ACME fails to perform its obligations under this
Agreement when required.
10. This Agreement shall be governed by the laws of the District of
Columbia without regard to conflict of law provisions.
11. At or prior to the Closing, the Parties will execute any and all
other documents which may be reasonably requested by any other Party to
effectuate and consummate the transaction contemplated by this Agreement.
12. Either Xxxxxx, CHL or ACME may terminate this Agreement upon
written notice to the other Parties if the FCC has not issued an order by April
1, 1999, approving the assignment of the CP to CHL, provided that the
terminating Party is not then in breach of its obligations under this Agreement.
13. Any notice or other communication required or authorized by this
Agreement shall be delivered in person, by certified mail-return receipt
requested (postage prepaid) or by overnight courier (charges prepaid) to the
parties at the address specified below (or at any other address which any party
may specify in writing to the other parties):
If to Acme: Xxxxxxx Xxxxx
ACME Television Licenses of Tennessee, LLC
00000 Xxxxx Xxxxxxxxx
Xx. Xxxxx, XX 00000
If to Xxxxxx: Xxxx Xxxxx Xxxxxx
0000 Xxx Xxxxxxx Xxxx
Xxxxxxxxxx, XX 00000
If to Escrow Agent: Xxxxxxx Xxxxxx
First Union National Bank
Corporate Trust Administration
000 Xxxx Xxxx Xxxxxx, 0xx Xxxxx
Xxxxxxxx, XX 00000
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IN WITNESS WHEREOF, the Parties have executed this Assignment
Agreement as of the date first set forth above.
XXXXXX-XXXXXXXX, LLC
By: /s/ Xxxx Xxxxx Xxxxxx
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Xxxx Xxxxx Xxxxxx
ACME TELEVISION LICENSES OF
TENNESSEE, LLC
By: /s/ Xxxxxxx Xxxxx
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Xxxxxxx Xxxxx, President
XXXX XXXXX XXXXXX
On behalf of herself, and to the extent
that it exists, the Xxxxxx-Xxxxx
Partnership
By: /s/ Xxxx Xxxxx Xxxxxx
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Xxxx Xxxxx Xxxxxx
XXXXXX X. XXXXXX
On behalf of himself, and to the extent
extent that it exists, the Xxxxxx-Xxxxx
Partnership
By: /s/ Xxxxxx X. Xxxxxx
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Xxxxxx X. Xxxxxx
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